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.


Anonymous said...

The most interesting part of this brouhaha is how it’s framed the issue of zoning at its essence. A small amount of the posters simply think there shouldn’t be any zoning laws in the first place. That seems to be essentially a libertarian position, and usually cites Houston as the shining star of urban non-planning.

Then there’s what appears to be the Tea Party position, which, roughly, is that there should never, ever, be variances granted to zoning laws, but rather you should change the law itself if you don’t like an outcome. I suppose it’s interesting that the City is in fact in the process of doing just that, largely because it’s tired to all the variance disputes resulting from ordinances that don’t have much real relationship to Indianapolis in the 21st Century.

And, of course, you have the neighbors. Overwhelmingly, they view zoning as a popularity contest. It appears fairly likely that if Pat wanted to eliminate all his parking, he’d still pack the CCB assembly room with supporters. Sullivan’s is that popular a local business, and apparently provides a very, very popular local service.

None of those positions are comparable, and presenting a position on a zoning issue, even yours, requires taking a side in the triangle. If you’re going to take lot of positions, in lots of zoning issues, unless you’re religiously intellectually consistent, you’ll find that you jump from one part of the triangle to another, depending on what you want to see happen at a given place.

The relevance is that we’ll likely never get rid of zoning disputes. The area in question aound Sullivan’s is currently under review as a “neighborhood plan,” which is pretty much just a re-examination of a previous plan from 1980. Like the Broad Ripple planning process that was recently completed, it’s being done in about as open a way as could be imagined. If you want to express an opinion, there’s an easy way to do so, as there was with Broad Ripple.

These “plans” won’t be laws, but they will provide a starting point for examining future variance requests. While it’s worth noting that Broad Ripple found itself in a major zoning fight, over something that likely fit within its “plan,” as the ink was drying on its approval, it’s more reasonable to assume that the places we live and work will change over time, and what might have been envisioned at one point, will change over the ensuing 40 years.

Had Enough Indy? said...

I appreciate your thorough comment.

I would like to add, however, that variances are supposed to be granted based on a hardship on the land itself; something that sets this one parcel apart from other similarly zoned parcels in the County.

It should never be a popularity contest - If you want to give a pass to Sullivan - be ready to give the same pass to an adult bookstore.

Variances go with the land forever. Giving a pass to someone you like today, could be giving the very same pass to a cretin who buys the land in the future.

If folks are stuck on popularity, then at least get a commitment that the variance will terminate upon the sale of the property.

Anonymous said...

you have a much higher opinion of the popularity of adult bookstores in Meridian Kessler than do I, lol.

Had Enough Indy? said...

No - I meant, by siding with someone you like for a variance simply because you like them (or their product), be ready to have precedence claimed by someone you don't care for (or their product).

Anonymous said...

I think the most frustrating part of this story is the misdirected anger people have towards the BZA. They serve a necessary function and made a fair and impartial decision. Sullivan and his supporters should be vocal against the city's antiquated, suburban-oriented zoning laws that render some of these requirements necessary. Until the city's zoning code is completely overhauled, we will have to deal with a burden that prevents quality urban development within the city.

Instead, they have opted to attempt circumventing the law through political pressure because they have enough clout to do so. I won't be surprised if the ciy gives in. I cannot help but see parallels between this case and the the Geist billboard (which was completely legal by city zoning laws). If wealthy constituents raise enough hell, the city will bend over backwards to accommodate their demands, even if it means issuing a decision that contradicts what is required by the laws the city is governed by.

Had Enough Indy? said...

Anon 8:00 --

I'm curious what you think is an onerous burden for Sullivan's and/or urban areas in our current Code.

I am worried that the new ordinance will get as frayed as the current one by the BZA. They seem to think their job is to grant variances, and not their job to require the petitioner to demonstrate some hardship on the ground that requires a waiver from the law.

The current BZA attitudes make it very much a matter of money - if you can pay the filing fee, you'll get your variance more than 90% of the time.

I was in the audience waiting for another case to be heard the day the billboard permit was declared illegal. It was highly unusual in a number of respects. The petitioner was not present and his attorney sought a continuance. The attorney had previously relayed to the neighborhood that he was going to do so. The Board denied the continuance - the first time I'd personally seen a petitioner's request denied. The attorney had not prepared anything, thinking the continuance would be granted.

I'm thinking the Court will grant relief of some kind to the billboard owner, as the permit did seem to be issued correctly.

That very same day, after voting unanimously to kill the billboard for being such an eyesore, the Board split 2-2 on a request to erect an 8 story asphalt plant smack dab at the entry to Decatur Township.

I hope you are wrong about a split between justice for wealthy vs. not neighborhoods and what kind of crap is allowed. I do know that the south side is a dumping ground - made so by more than the BZAs, but certainly abetted by them.

Anonymous said...

Parking requirements are definitely an area that needs revision. These two blog posts are good reads on the issue.

Matt said...

@HEI I agree that the BZA was well within their rights on this decision, and I am fully in support of strong zoning laws. However, two things stick out about this case: 1) Indy requires 35 parking spots for a hardware store in Meridian Kessler; 2) why was building a sidewalk part of this deal? Shouldn't the city build a sidewalk there regardless of this zoning deal? ?

These two situations seem to expose a situation where the city cares more about zoning compliance and less about the citizens who actually live/work/shop in this area. For the price of this legal action I'm sure a sidewalk could have been built.

Had Enough Indy? said...

Matt - the City doesn't do much paying for basic infrastructure outside of repairing some roads.

There is a city ordinance that requires sidewalks be installed at the property owner's expense whenever there is a substantial change to buildings on the property.

The inclusion of such commitments is routine.

Matt said...

@HEI I understand that, but my point is this way of thinking has created environments that just aren't competitive enough (from a quality of life perspective) with other major cities.

Indy requires business owners to put in sidewalks instead of building them in the first place; it also mandates massive parking minimums that burden the small business owner and destroy the walkable fabric that makes urban centers so attractive to young, talented workers.

I certainly don't disagree with the BZA's actions here but I do think city needs to reset its thinking on zoning and the built environment if it wants to be competitive.

Had Enough Indy? said...

I'm not sure how burdensome the parking restrictions are. If one could be sure that no shopper parked on the street in a residential area, perhaps we would have a better feel for the impact the required number actually has.

Previously, the BZA has seriously gutted off street parking in a number of areas of the city. But neighbors end up paying the price, not walkability.

Matt said...

I would tend to agree with you if not for the fact that this is a small garden store. It would be reasonable to assume all 35 spaces would be full at Patachou across the street on a Sunday morning. But I've never seen more than 5 cars at Sullivan. And of course we know nobody parked on the street because there are 14 spots closer to the door in the Sullivan lot.

As for the burden, surface parking lots can cost roughly between 1500-3000 per space. So the difference between 35 spaces and 10 (I doubled my anecdote from above) would be somewhere between 37,500 and 75,000. Nothing to sneeze at for a small business owner.

Had Enough Indy? said...

Well, you have employee parking, truck delivery, and certain times of the year when folks are hauling heavy items from the store and have to park.

The city's 2014 aerial photo - which is quite random in time - shows 9 vehicles parked in the lot and what appears to be a delivery truck facing the wrong way on the street next to the garden area.

I would be very surprised if Sullivan's can make a go of it with patrons only within walking distance (even ignoring the times they buy something heavy, like mulch).

Matt said...

Certainly not suggesting that, I just think 35 seems a little high.

And, the MKNA (which probably represents the neighborhood's views better than the city zoning board) supports the store in this case anyway, so what's the gripe? From their blog:

"...we have no concerns with the elimination of five parking spaces. During their hearing, Sullivan’s further demonstrated they feel their parking lot with 15 spaces is adequate to handle most of their customer’s traffic even on their busiest days."

Had Enough Indy? said...

Well, we can start with the thought that variances are exceptions to the law that every other like-zoned parcel in the County must obey. To get a variance, one is supposed to explain what the hardship on the parcel is that makes it impossible to comply with the law as written.

Sullivan Hardware got a variance on parking, reducing the required number of spaces from 35 to 19.

So, why can't they live with that?

It amazes me that this city, which had every chance to be sensible about parking, has time and time again chosen to congest parking, rather than be smart about it.

Matt said...

This may be where we fundamentally don't see eye-to-eye.

I think Indy residents are too addicted to free, convenient and plentiful parking to see the negative affects on our neighborhoods. Clearly you don't feel the same way - agree to disagree?

Had Enough Indy? said...

fine by me