Boards of Zoning Appeals Post Lousy Year of Decisions

One of the things I did during my hiatus from this blog, was to begin a review of the 2009 voting record of the City's Boards of Zoning Appeals (BZA) on behalf of the Marion County Alliance of Neighborhood Associations (McANA). Details of the overview have been posted on McANA's website, here. (this is a pdf file and you will need Adobe Acrobat Reader to view it).

The results show a particularly poor record of decisions by the BZAs this past year. Of the 144 requests for variances for which they held a hearing, they denied only 20 (a denial rate of 14%). Compare this with the recommendation of the Current Planning Staff, which serve as the urban planning professional support staff for the Metropolitan Development Commission and the BZAs, who recommended the Boards vote to deny 99 of the requests (a recommended denial rate of 69%). The paucity of denials was so bad that none of the three Boards denied a single variance request until April 14 this year ! The individual denial rates of sitting members of the Boards (5 members per Board or 15 total members) ranged from a low of 5% to a high of 68%. Board I denied 15% of the variance requests it heard compared to staff recommendation of 75% denial. Board II denied 18% compared with a recommendation of 67% denial. And, Board III denied just 7% of the variances it heard compared with a recommendation of 68% denial.

So, why should you care? If you are a property owner, the impact of these variances can be felt directly upon your property value and your quality of life.

A variance gives a property owner the right not to obey a law that all others in Marion County must obey. State law set up two types of variances, both of which require proof that some aspect of the property itself dictates that an exception be made. Among other things, for a variance of use a petitioner is supposed to prove that "The strict application of the terms of the zoning ordinance constitutes an unusual and unnecessary hardship if applied to the property for which the variance is sought." And, among other things, the petitioner who requests a variance of development standards is supposed to prove that "The strict application of the terms of the zoning ordinance will result in practical difficulties in the use of the property." But, state law is routinely ignored by the BZAs and the so-called 'proof' offered is often circular and irrelevant logic. For instance, a popular recital of proof of the 'practical difficulty' is that it is not legal.

I believe that it would be in the public interest if, at the beginning of each hearing, someone read out loud the "Findings of Fact" form filled out as the proof of a need for a variance. This would put the State law requiring proof front and center in the hearing and it would expose to the viewing public the ridiculous nature of the proof often offered.

Would you want your neighbor to be able to park a semi at their house? The Boards granted at least two such requests this year. There can be no aspect of the property, however, that dictates that a semi must be parked at a house or else the property could not be used as a residence. That is exactly what State Law requires be proven.

Laws impacting real estate have a long history of a push and pull between the right of a property owner to do as they please on their property, and the right of a community to protect its interests in a well planned, well executed and well maintained urban layout. The courts have held that in order to compromise the unfettered rights of a property owner, a city must demonstrate a broader community interest by first creating a comprehensive plan that includes the recommended areas for the different types of uses. Once that has been established, the city may require zoning of all parcels for a single type of use (industrial, commercial or residential as examples). But, wait, there's more ! Once a comprehensive plan has been created, but not before, a city may also establish building codes requiring anything from indoor plumbing, running water, and safety features for electric and structural plans to setbacks and building sizes. But, because there is that tension between property rights and the community interest, any local laws that involve real estate property must offer the property owners the opportunity to prove that they deserve an exception to any one of those laws. These are the variances that the BZAs rule on.

In Indianapolis, the zoning and variance aspects of real estate law are embodied in the Metropolitan Development Commission, the Boards of Zoning Appeals, (the members of both bodies are appointed), and the Department of Metropolitan Development (which reports to the Mayor and is staffed with paid positions). The new Office of Code Compliance (OCE; which also reports to the Mayor and is staffed with paid positions) is the agency that oversees the enforcement of the City's real estate codes and laws. So, as a new house is being built, a permit is required and various inspections are made throughout the building process to ensure that the City's building standards are being met. Code Compliance relies heavily, and in some places exclusively, on citizen complaints about neighbors who are not obeying a real estate property ordinance. OCE then sends out an inspector who either cites the owner for a violation or who determines that no violation exists.

Those of us who have dealt with neighborhood issues for even a couple of years see this as one ecosystem - with each part dependent upon the other parts. Unfortunately in Indianapolis, the the various City departments and Boards are not coordinating their efforts and are often at odds. For instance, zoning inspectors and neighborhood groups might have been working for years to rid residential areas of commercial vehicles. But, once cited, these property owners have the right to apply for a variance (they have the right to apply before being cited, but most folks seem to live by the motto - it is easier to ask for forgiveness than ask for permission). The BZAs are supposed to ask for proof that the property cannot be used as zoned, in this case as a residence, unless the commercial vehicle can be parked there. Of course, no such proof exists. But, the BZAs operate not as State Law dictates, but by the seat of their pants, each member making up in their own head what compels their approval vote versus their denial vote.

This analysis of the voting record of the BZAs in 2009 demonstrates a clear disconnect with State Law. If they followed that Law and required proof in each case, variances would be rare, not usual. Remember, a variance is the exception to the law that all others in Marion County must obey. It should be hard to get a variance. Worse than that is the disconnect the BZAs have with the whole system of code compliance and how that disconnect is harming the big picture in Indianapolis; where neighborhoods have a chance to protect their quality of life and their property values by insisting that the laws of Indianapolis be uniformly applied.

I'mmmm Baaaacccckkkk !!!!!

Hope the holiday season has been good to you and your family. My hiatus was much longer than I anticipated - but fun and refreshing.

I do have a couple of comments on items that caught my attention in the paper and elsewhere this past month. No links to IndyStar will be possible, as those articles are now in the archives.

First and foremost, I sit in admiration of Paul Ogden and his efforts to see that folks accused of a crime are treated properly in our jails and also the latest lawsuit he filed to challenge the traffic court's practice of threatening higher traffic ticket penalties if you want your case heard by the judge. Both of Paul's efforts have seen others, Democratic Party blog "Indianapolis Times" and the Indianapolis Star's editorial board, respectively, try to diminish him with snipes. Their pettiness has only diminished themselves, in my eyes.

The traffic court judge is acting like a Boss Hog - and he needs to either clean up his act or be gone. Traffic fines are already too high - approximating a week's worth of groceries. For the judge to threaten to up the already too high fine just because an American wants his or her due process is an abuse of his authority. I'm not a lawyer, and I hope the judge's actions are not in accordance with legal tenets. But, I am a citizen and when anyone diminishes the rights of others, they diminish my rights as well. Good luck Paul Ogden !!! Keep fighting the good fight.

Prop 418 went down along party lines in committee. 418 was the Council Resolution asking the State Legislature to give Indianapolis-Marion County City-County Council the authority to review abatement decisions. Ours is the only County in Indiana where that authority does not reside with the Council. Mayor Ballard must have been throwing his weight around behind closed doors again. The Republican Councillors abandoned any commitment they have to being actual members of the Council and voted against strengthening the Council's position. Even Councillor Plowman - who championed the issue at the Legislature just last year - and Councillor Smith - who co-sponsored the Council Resolution - voted against the Proposal. Its a shame. I hope it is brought up again and again until the authority to review is granted our Council. Councillor Brian Mahern has shown himself to be an outstanding Councillor this year. We are all better off because he at least tried to make a real difference on the Council. My hat is off to him.

A huge victory was won, at least temporarily, by Charlie Goodman and Jerry Baker and others at the Indiana Tree Alliance. The Indiana Utility Regulatory Commission has set aside a key operational rule regarding the authority IPL has to trim trees on private property. The final decision on the permanence of this rule awaits a final decision on IPL's tree trimming practices, due sometime in late spring, if I understand the timing correctly. Goodman and Baker are hoping that the State Legislature takes up the issue and returns property rights to property owners this session. For more information about the issues, to find out how you can help, and to get the Alliance's newsletter, visit their new website : www.indianatreealliance.com

Mayor Ballard's new Chief of Staff, Chris Cotterill, continues to impress me. After the new head of the Animal Care and Control Board pulled another Boss Hog move, barring Channel 16 from covering his Board meetings, Cotterill stated on behalf of the Mayor, that he'd bring a video camera to the meetings himself, if that is what it took to re-open them to the viewing public. I don't know who the new AC&C Board Chairman is, but his appointment should be reviewed. How out of touch can you be? To pull the Channel 16 access when AC&C has seen one upheaval after another? That agency needs to prove itself and the more citizens who can see for themselves, the better. Cotterill is making the 25th floor a much more interesting place.

And bringing things closer to up to date - let me just say that the Colts organization should refund the ticket price to everyone who paid their hard earned money for a seat to yesterday's game - with the exception of season ticket holders. Those tickets are not cheap and those folks deserved a real attempt to win. They got bupkiss.

Hope your family is healthy and close as we finish up the holiday season. 2010 is just around the corner now. Wow ! 2010 ! Just think, ten years ago we were worried about the end of civilization as we know it because computers only had two digits to denote the year ! Now we have YouTube and Twitter !!!! And I-phones !!!! Wow ! What an incredible time to be alive !