Wednesday, December 31, 2014

2014 Zoning and Variance Decisions

If you could afford to file a rezoning petition for your property this year, you stood an 89% chance of having it approved.  If you could afford to file a variance petition this year, you stood an 86% chance of it being approved.


Of all 100 zoning petitions decided in 2014, 89 were approved, 2 denied, and 9 withdrawn (89% approved, 2% denied, and 9% withdrawn).

Most rezoning petitions are assigned to the Hearing Examiner, with some going to the Indianapolis Historic Preservation Commission for their first hearing.  A small number are sent directly to the Metropolitan Development Commission by the HE for their initial hearing.  Any side of a contested petition can appeal the HE's or IHPC's decision to the MDC.

The HE made 77 decisions on zoning petitions in 2014 - 68 approved, 2 denied, and 7 withdrawn - otherwise 88% approved, 3% denied, and 9% withdrawn.

The IHPC cast decisions on 11 zoning petitions in 2014 - all were approved.

The MDC held initial hearings on 7 petitions and accepted the withdrawal of 1 petition prior to hearing.  All 7 were approved.

The HE's decision was appealed to the MDC 6 times.  One was withdrawn prior to the MDC hearing it (the HE had recommended denial).  Of three petitions which the HE had recommended denial, 2 were overturned by the MDC and 1 approved.  Of two petitions which the HE had recommended approval, 1 was approved and 1 denied by the MDC.

Overall, the MDC heard testimony on 12 petitions, approving 10 (83%) and denying 2 (17%).


Of all 323 variance petitions decided in 2014, 287 were approved, 23 denied, and 23 withdrawn (86% approved, 7 % denied, and 7% withdrawn).   Looking at only those 123 petitions not on the expedited docket, 100 were approved and 23 denied - (81% approved and 19% denied).

Most variance petitions are assigned to the Boards of Zoning Appeals, of which there are three.  If a variance request is packaged with a rezoning or other type of petition that normally would be heard by the HE/MDC, then it is assigned to the HE and not the BZA.

BZA I had 111 petitions on its dockets in 2014.  71 were on the expedited portion of the docket, meaning Staff and any neighbors or neighborhood organizations recommended approval of the petition.  These are perfunctorily approved by the Board.  Additionally, 7 were withdrawn.  Of the 43 petitions for which BZA I took testimony, 29 were approved and 14 denied - otherwise 67% approved and 33% denied.

BZA II had 70 petitions on its dockets in 2014; 43 expedited, 7 withdrawn, and 20 for which testimony was taken.  Of the latter, 15 were approved and 5 denied - or 75% approved and 25% denied.

BZA III had 100 petitions on its dockets in 2014; 73 expedited, 5 withdrawn, and 22 heard.  Of those heard, 19 were approved and 3 denied - or 86% approved and 14% denied.

The HE got 34 variances; 30 approved, 1 denied, and 3 withdrawn.

The MDC got 11 variances (7 initial hearings, 3 appealed HE decisions, and 1 withdrawn).  All 7 for initial hearing were approved by the MDC.  Two of the appeals were approved and 1 denied.

This is actually better than I expected, having expected the mid-90% approval rate.  Still and all, the variances are supposed to be granted because of a hardship on the ground that sets that parcel apart from every other identically zoned parcel in Marion County.  It is hard to believe that such a standard was actually met for the number of approvals granted.

Monday, December 29, 2014

Why the BZA Got the Sullivan Hardware Decision Right

[I posted this on IBJ's IndianaForefront blog today]

On December 16, the Board of Zoning Appeals unanimously denied Sullivan Hardware's request of Variances for its property at 4838 N. Pennsylvania Street. There has been much wringing of hands and gnashing of teeth since.

The BZA got it right, though. Here's why.

Sullivan Hardware has shown little regard for the legally binding agreements they made in order to secure a Variance back in 2009, which allowed them to erect a greenhouse. In trade for the elimination of several setback, landscaping, and accessory use requirements, and the reduction of required parking spaces from 35 down to 19, Sullivan Hardware agreed to install a sidewalk on its 49th Street frontage and keep all outside storage within the new greenhouse to "visually enhance such storage". They have complied with none of their agreements, including to supply all 19 parking spaces. (For more of the zoning history at this location, I would direct you to Gary Welsh's post on Advance Indiana.)

Sullivan Hardware was issued a Violation notice back in August of 2013, listing 8 infractions. In September of that year, 4 Citations were issued. Four months later, with none of the fines paid and nothing done to clear the Violations, the City filed legal action against the 4838 N. Pennsylvania property.

It wasn't until April of 2014, that Sullivan Hardware filed several Variance requests with the Meridian Street Preservation Commission. By doing so, the legal action was put on hold until the Variance process could be completed. They asked the MSPC to agree to only 14 parking spaces (35 required by Code - but reduced to 19 by the 2009 Variance), to additional outside storage, to an unscreened trash container in the front yard, and to overturn the requirement that they install a sidewalk along 49th Street. The outside storage request referenced a site plan rather than a set number of square feet. From my calculations the total area requested for outdoor storage amounts to about 1000 square feet. Indy's Code would allow 200 square feet of outside storage if the agreement from 2009 were not in place to store all inside the greenhouse. However, the greenhouse allowed by the 2009 Variance gave Sullivan Hardware 2880 square feet for that storage. The matter was heard before the MSPC in June and approved.

There were some significant changes made sometime between the April filing with the MSPC and the September filing with the City.

Favorable changes included an apparent agreement to construct the sidewalk after all (which they could have completed over the summer, but did not), moving a proposed handicap parking space closer to the building (although shrinking its footprint), and enclosing the dumpster (even though it would remain in the front yard). Unfavorable changes that appeared in the Variance requests filed with the City included clarification that they were indeed seeking to store outside merchandise so close to the parking lot exits that they would violate the clear sight triangle required of all curb cuts in the County. The clear sight triangle law is in place for safety reasons - so that any driver exiting onto City streets can see oncoming traffic; be that pedestrians, bicycles, or motor vehicles. It is unsafe to drive the front of your car into oncoming traffic prior to your line of sight opening up enough to see what you could hit. They did mention that they would set the outdoor storage at one exit 10 feet back from the existing sidewalk, which would not entirely block the clear sight triangle. My calculations suggest that they were refusing to clear out less than 50 square feet blocking the clear site triangle at the two exits.

At the BZA hearing in December, Staff made it clear they had no problem with the request that an enclosed dumpster be allowed in the front yard - nor did the remonstrators voice any objection to that Variance request. Staff also had no problem with the outdoor storage on the south side of the property line, as long as the clear site triangle area was continuously clear of merchandise. Again, the remonstrators, representing neighbors of Sullivan Hardware, voiced no different opinion. The outdoor storage requested in front of the existing greenhouse, part of which occupied the clear sight triangle of the 49th Street exit, could be better used for parking and so not supported by Staff or the remonstrators.

The remonstrators made an excellent case against allowing the number of parking spaces to drop to 14. They brought up the fact that a number of Variances for properties at the intersection had already removed the requirement for about 65 off street parking spaces, while the on street parking capability was only 30. Businesses have resorted to posting signs limiting the remaining off street parking to their customers, and vowing to tow violators, because the parking is so scarce. Any further reduction in the parking available on the Sullivan Hardware site would only aggravate the existing parking problem.

The remonstrators also mentioned that the smaller footprint for the one handicap parking spot was too small to meet ADA requirements.

Other locally owned urban hardware or landscape businesses, including Hedlund Hardware, White's Ace Hardware at Nora, Habig's Garden Shop, and the Ace Hardware at Illinois and 38th Street, have not sought the Variances that Sullivan Hardware on Pennsylvania has, and yet they stay in business. Only one was issued a notice of Violation for outdoor display and storage of merchandise, and they brought their property into compliance.

Meanwhile, Sullivan appears to be following the same 'ask forgiveness later' path at his other location where he has been storing merchandise in the back yards of abutting residences, in violation of City laws, even though he has over 2 acres for his business. In July of this year, 5 residential properties, all owned by Patrick Sullivan, LLC, were issued notices of Violation. In aggregate there were 16 Violations noted, including no permit for accessory structures, oversized privacy fences, the outside storage of merchandise, and the outside storage of junk, trash & debris. Sullivan has filed a rezoning petition for these properties in response and a hearing is scheduled for January 29.

At the December 16 BZA hearing, the Petitioner was given the opportunity to have the Board vote on each Variance request separately; making it possible for some to be approved and others denied. They declined the offer. The evidence was very well presented and overwhelming. The Board voted  4 - 0 to deny the Variance requests.

Pat Sullivan threatened to close this location if he could not get the Variances. He reports that City leaders are reassuring him they "will find a solution", although their legal options are few and it is unclear what they can possibly do.

Sullivan Hardware is a popular spot in the area of 49th and Pennsylvania and there has been backlash to the BZA's unanimous decision to deny the Variances requested. The free popcorn notwithstanding, Sullivan Hardware should not be allowed to unsafely pile merchandise near the parking lot exits, they should have to create an ADA compliant handicap parking space, and they should not be allowed to offer fewer than half the required parking spaces in an already congested commercial node.

The BZA made the right decision.

Wednesday, December 3, 2014

How Many Existing Billboards are Illegal?

I posted this on the Indiana Forefront blog today.


If you listen to the representatives of Indy's three big billboard companies very closely, you will hear them talking about swapping and converting "legal non-conforming" billboards under the proposal written by themselves for themselves.  I refer to Prop 250, which the full Council sent back to committee on Monday night.

A legal non-conforming use is one that has been granted a certificate of legal non-conforming use (LNCU).  To obtain that certificate, documentation must be submitted showing the non-allowed use was in nearly continuous existence at a particular location since before 1969 or prior to the creation of the ordinance that created the non-conformity.

I have in my possession a list of billboard locations that Clear Channel offered, a couple of years ago, to swap out for digital billboards at new locations.  At the time, a Code Enforcement officer looked up locations to see if any permits had been obtained.  Of 42 locations with 52 sign faces, permits could not be found for 24 locations with 31 faces.

As of yesterday when I checked, none of these had certificates of LNCU noted in the City's online database.

Without a permit or an LNCU certificate, the billboard is illegal.

It would be an outrage to pass any change in the sign ordinance to allow swapping of illegal static faces for digital faces.

It would also be an outrage to pass any change in the sign ordinance that would allow the conversion of an illegal static face to a shiny new digital face.

Prop 250 does not disallow such exchanges.

The billboard companies should make public, before the January 26 Metropolitan & Economic Development committee meeting, a map of their current billboard locations as well as a table listing the address of each parcel and either the permit number or LNCU certificate number associated with the billboard at that location.

Any billboard that has neither a permit nor certificate is illegal and should be taken down at the expense of the billboard company with all due haste.

Monday, December 1, 2014

Digital Billboard Lobbyists Galore

A brief update - Prop 250 will be sent back to committee at tonight's Council meeting, the IBJ's Cory Schouten reports.

Now, without further delay - my post on lobbyists for the billboard industry.

One of the comments I made in my 'Ten Things You Didn't Know About the Proposed Digital Billboard Ordinance', brought a considerable amount of energy from the billboard industry representative during our meeting last Monday afternoon.

They came across as absolutely insulted that I would say that Prop 250 was "drafted by lobbyists for the billboard industry".  Who knew that members of the billboard industry would look down on lobbyists?

Representatives of Clear Channel, Lamar, and Outfront Media (formerly CBS Outdoor) made it clear that John Kisiel of Clear Channel wrote the majority of if, with their input.  No sense mentioning that Bose Public Affairs Group is listed on the proposal itself as having drafted it.  Kisiel told us he had to register as a lobbyist in order to talk with the Councillors.  So much for it not being lobbyist written.

But, the exchange sent me to the lobbyist registration for the City and County.

There has been a ramp up in the number of registered lobbyist representing the interests of billboard companies in the last two year - so much so there is no shortage of them.

Here is what I found by year:

2010 -- 57 individuals registered  -- 0 for billboard companies

2011 -- 34 individuals registered -- 1 from Bose, McKinney, & Evans representing both Lamar and CBS Outdoor

2012 -- 43 individuals registered -- 2 for billboard companies  -- 1 from BME for Lamar, the other John Kisiel of and for Clear Channel

2013 -- 28 individuals registered -- 4 for billboard companies -- 2 from Barnes & Thornburg for Clear Channel, 1 from BME for Lamar, and again Mr. Kisiel for Clear Channel

2014 -- 25 individuals registered -- 7 for billboard companies -- 4 from BME for Lamar and CBS-Indy, and 3 from B&T for Clear Channel.

The agencies listed as points of contact for these folks were primarily the City-County Council, but also included the Mayor's Office, DMD, DCE, IMPD, IndyGo, the MDC, and the Office of Corporation Counsel.