Stiller Properties, LLC v. Floyd County Board of Zoning Appeals, Curt Rafferty, and Ceek Properties, LLC (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Mar 06 2020, 9:25 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE FLOYD
C. Gregory Fifer COUNTY BOARD OF ZONING
Applegate Fifer Pulliam LLC APPEALS
Jeffersonville, Indiana Keith D. Mull
Mull Law Office
New Albany, Indiana
ATTORNEY FOR APPELLEES
CURT RAFFERTY AND CEEK
PROPERTIES, LLC
John A. Kraft
Young, Lind, Endres & Kraft
New Albany, Indiana

IN THE
COURT OF APPEALS OF INDIANA

Stiller Properties, LLC, March 6, 2020
Appellant-Petitioner, Court of Appeals Case No.
19A-PL-2190
v. Appeal from the Floyd Superior
Court
Floyd County Board of Zoning The Honorable Marsha Owens
Appeals, Curt Rafferty, and Ceek Howser, Special Judge
Properties, LLC, Trial Court Cause No.
Appellees-Respondents 22D02-1809-PL-1305

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 Crone, Judge.

Case Summary
[1] Curt Rafferty filed an application for a development standards variance to build

a 7500-square-foot Dollar General store in a zoning district in which retail

establishments only up to 5000 square feet are permitted. The Floyd County

Board of Zoning Appeals (“BZA”) held a hearing and granted Rafferty’s

variance application over the objection of neighboring landowner Stiller

Properties, LLC (“Stiller”). Stiller petitioned for judicial review of the BZA’s

decision, which the trial court affirmed. On appeal, Stiller contends that the

BZA’s decision is unsupported by substantial evidence. We disagree and

therefore affirm.

Facts and Procedural History
[2] Ceek Properties, LLC (“Ceek”), owns a lot on Paoli Pike in Floyds Knobs that

is located in a Neighborhood Commercial (“NC”) zoning district. One of the

permitted uses in an NC district is a Retail Small Scale use, which “means a

retail establishment up to 5,000 square feet primarily engaged in the selling or

rental of goods and/or merchandise and in rendering services incidental to the

sale of such goods.” Appellant’s App. Vol. 2 at 185. Rafferty contracted with

Ceek to purchase the lot with the intent of building a Dollar General store that

he would lease to the company. In July 2018, Rafferty filed an application for a

development standards variance that would allow him to build a 7500-square-

foot store. At the BZA hearing on his application, Rafferty explained that

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 “Dollar General does not have a prototype that’s 5,000 square feet. Their

smallest prototype is 7,500. If there was one that was 5,000 I would be happy

to do it, but their smallest one is 7,500 and they rarely ever use it.” Id. at 135.

The BZA granted the application over the objection of Stiller, which owns

property across Paoli Pike from Ceek’s lot. Stiller petitioned for judicial review

of the BZA’s decision, which the trial court affirmed. Stiller now appeals.

Discussion and Decision
[3] Stiller contends that the BZA erred in granting Rafferty’s variance application.

“A variance is described as a dispensation granted to permit a property owner

to use his property in a manner forbidden by the zoning ordinance. A zoning

board has the power within its discretion to approve or deny a variance from

the terms of a zoning ordinance.” Schlehuser v. City of Seymour, 674 N.E.2d

1009, 1012 (Ind. Ct. App. 1996) (citation omitted). Judicial relief from a zoning

decision may be granted only if the court determines that the petitioner has

been prejudiced by a decision that is “(1) arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law; (2) contrary to

constitutional right, power, privilege, or immunity; (3) in excess of statutory

jurisdiction, authority, or limitations, or short of statutory right; (4) without

observance of procedure required by law; or (5) unsupported by substantial

evidence.” Ind. Code § 36-7-4-1614(d). “The burden of demonstrating the

invalidity of a zoning decision is on the party to the judicial review proceeding

asserting invalidity.” Ind. Code § 36-7-4-1614(a).

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[4] When we review a zoning board’s decision, we apply the same standard as the

trial court. Burcham v. Metro. Bd. of Zoning App. Div. 1 of Marion Cty., 883 N.E.2d

204, 213 (Ind. Ct. App. 2008). We may not substitute our judgment for that of

the zoning board, and we may neither reweigh evidence nor reassess witness

credibility. Id. To reverse the grant of a variance on the basis of insufficient

evidence, “an appellant must show that the quantum of legitimate evidence was

so proportionately meager as to lead to the conviction that the finding and

decision of the board does not rest upon a rational basis.” Id. at 212-13

(quoting Snyder v. Kosciusko Cty. Bd. of Zoning App., 774 N.E.2d 550, 552 (Ind.

Ct. App. 2002), trans. denied (2003)).

[5] The requirements for obtaining a development standards variance are spelled

out in Indiana Code Section 36-7-4-918.5(a), which reads in relevant part,

A board of zoning appeals shall approve or deny variances from
the development standards (such as height, bulk, or area) of the
zoning ordinance.[ 1] The board may impose reasonable
conditions as a part of the board’s approval. A variance may be
approved under this section only upon a determination in writing
that:

(1) the approval will not be injurious to the public health,
safety, morals, and general welfare of the community;

1
Stiller argues that Rafferty should have applied for a use variance instead of a development standards
variance because the zoning ordinance does not permit commercial retail uses of 5000 square feet or more in
an NC district. The appellees assert that this argument is waived because Stiller failed to raise it at the BZA
hearing. We agree. See McBride v. Bd. of Zoning App. of Evansville-Vanderburgh Area Plan Comm’n, 579 N.E.2d
1312, 1315 (Ind. Ct. App. 1991) (“Objections or questions which have not been raised in the proceedings
before the administrative agency will not be considered by this court on review of the agency’s order.”).

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 (2) the use and value of the area adjacent to the property
included in the variance will not be affected in a
substantially adverse manner; and

(3) the strict application of the terms of the zoning
ordinance will result in practical difficulties in the use of
the property.[ 2]

Here, the BZA’s preprinted “ballot” on Rafferty’s variance application contains

the following findings:

1. Approval of the variance [will not] be injurious to the public
health, safety, morals, and general welfare of the community
because: a larger building could be constructed with multiple tenants.
The design elements being provided fit well with the recent development
along Paoli Pike.

2. The use and value of the area adjacent to the property
included in the variance [will not] be affected in a substantially
adverse manner because: the site is currently zoned Neighborhood
Commercial and this type of business is permitted.

3. The strict application of the terms of the zoning ordinance
[will] result in practical difficulties in the use of the property
because another development could be proposed that would be larger
and generate more adverse conditions. Thus this proposed development
fits satisfactorily on this site.

Appellant’s App. Vol. 2 at 116 (handwritten notations in italics).

2
The statute also permits a zoning ordinance to establish a stricter standard than the “practical difficulties”
standard, but Floyd County’s zoning ordinance does not do so.

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[6] Contrary to Stiller’s assertions, there is sufficient evidence in the record to

support each of these findings. First, regarding the BZA’s finding that approval

of the variance will not be injurious to the public health, safety, morals and

general welfare of the community, the evidence indicates that the proposed

building is actually smaller than existing buildings in the area and, as

emphasized by the BZA, the proposed building is smaller than a multiple-use

larger building that would already be allowed on the same site as a matter of

right. Id. at 63, 122, 125, 132. 3 As restaurants, gas stations, groceries, and

other commercial uses are approved for the area, the proposed retail space is

totally “in line with the density that is already allowed on the site.” Id. at 130.

The proposed Dollar General store “will generally be pulling traffic from the

existing traffic that’s on Paoli Pike,” id. (emphasis added), and there is no

evidence to suggest that approval of the variance will cause traffic to become

injurious to the community. 4 Moreover, there is evidence in the record which

indicates that the planned construction of a water detention basin and retaining

wall on the property will not injure but would actually serve to improve current

drainage and water runoff issues on Paoli Pike. Id. at 60, 113, 131. In short,

3
A multiple-use building on the site same could be up to 10,000 square feet. Appellant’s App. Vol. 2 at 122,
125.
4
Rafferty’s project engineer, Jason Copperwaite, explained,

Because there are other Dollar General’s [sic] in other places like Georgetown you won’t have
people coming from Georgetown to go to this Dollar General store. [T]here are Dollar General
Stores in New Albany you won’t have people coming from New Albany to this Dollar General
store. This Dollar General store will be for the residen[ts] of Floyds Knobs, those people that are
already trafficking Paoli Pike.
Appellant’s App. Vol. 2 at 130.

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 ample evidence supports the BZA’s conclusion that approval of the variance

will not be injurious to the public health, safety, morals, and general welfare of

the community.

[7] As for the second finding, that the use and value of the area adjacent to the

property will not be affected in a substantially adverse manner, it is undisputed,

as Rafferty points out, that “retail establishments could be developed there as a

matter of right, including those of significantly larger structure size than what

[he] was requesting[,]” and that “[t]hose businesses would likewise have lights,

deliveries, and people doing business.” Appellees’ Br. at 15. 5 Indeed, Rafferty

submitted a detailed site plan showing that the proposed structure here is a

stone and brick building that has “elevated design elements” that fit well within

the recent development along Paoli Pike. Appellant’s App. Vol. 2 at 60, 89-90,

132. This evidence supports a finding that the requested variance would not

affect the use and value of the adjacent area in a substantially adverse manner.

[8] And as for the third finding, that strict application of the terms of the zoning

ordinance will result in practical difficulties in the use of the property, Rafferty

emphasizes that he purchased the lot “with the sole intention of using the space

5
At the BZA hearing, Rafferty’s counsel observed that if
Dollar General decided half of [the proposed 7500 square feet of retail space] was going to be
Dollar General grocery, … and [the other half was going to be] Dollar General general
merchandise and split it into two uses we would not even need to be here this evening because
the building size is allowed as a matter of right under the neighborhood commercial [zoning
rules].
Appellant’s App. Vol. 2 at 125. In fact, as already noted, a building of up to 10,000 square feet would be
allowed as a matter of right under such circumstances.

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 for a Dollar General business” and that “[t]he smallest possible prototype for

the Dollar General is [7500] square feet.” Appellees’ Br. at 16. He further

notes that he “did not create the prototype and did not have authority to alter

the square footage[,]” and that “the denial of the variance would have resulted

in [his] 100% economic loss.” Id. at 16-17; see Reinking v. Metro. Bd. of Zoning

App. of Marion Cty., 671 N.E.2d 137, 142 (Ind. Ct. App. 1996) (“[T]he purchase

of property with knowledge of use restrictions does not prohibit a purchaser

from claiming a special or unnecessary hardship, regardless of who owned the

property at the time it was burdened.”). 6 Significantly, the evidence

demonstrates that current approved uses for the site include far larger and more

commercially intense uses than Rafferty’s proposal. The BZA was well within

its discretion to determine that it would constitute an unnecessary hardship to

permit those commercially intense uses, but not Rafferty’s proposed use.

[9] We conclude that the foregoing facts are more than sufficient to support the

BZA’s findings. Stiller has failed to show that the quantum of legitimate

evidence was so proportionately meager as to lead to the conviction that the

finding and decision of the BZA does not rest upon a rational basis. Burcham,

883 N.E.2d at 213. Consequently, we affirm.

6
Stiller seizes on Rafferty’s counsel’s hypothetical about splitting the store into two uses and claims that,
“[g]iven such admission, it was impossible for Rafferty or [Ceek] to demonstrate a practical difficulty in the
use of the Property in the absence of the grant of the requested variance.” Appellant’s Br. at 24. But there is
no evidence that Dollar General would ever consent to such an arrangement.

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[10] Affirmed.

May, J., and Pyle, J., concur.

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