dissenting.
I respectfully dissent. As the majority notes, to establish that an unconstitutional taking occurred, petitioners had to show that the zoning ordinance prevented the use of the property for any reasonable purpose. Maxey v. Board of Zoning Appeals (1985), Ind.App., 480 N.E.2d 589, 595. However, petitioners also had to show that the variance would not adversely affect the essential character of the locality. Id. Petitioners’ plan to develop the property involved the leveling of a dune, the standard practice of property owners in the past. The BZA denied the variance because it found that, inter alia, petitioners’ plan would result in “inevitable damage to the existing topography” and was contrary to the stated purposes of the ordinance.1 Neither this Court nor the trial court may reverse the decision of a zoning board unless it is arbitrary, capricious or an abuse of discretion. Id.
The town of Beverly Shores is part of the Indiana Dunes National Lakeshore, a national park extending along the shoreline of southern Lake Michigan. Authorization of the park in the 1960’s culminated a 50-year fight to save the dunes from the encroachment of industrialization. The area is a highly unique and richly diverse ecosystem which prompted the poet Carl Sandburg to write, “The dunes are to the Midwest what the Grand Canyon is to Arizona and the Yosemite is to California. They constitute a signature of time and eternity.”
Clearly, the trial court substituted its discretion for that of the BZA when it decided preservation of such a distinctive natural landscape was not a legitimate concern. Petitioners failed to show that the variance would not adversely affect the essential character of the locality; therefore, the BZA’s denial of the variance was not an unconstitutional taking. I would reverse the judgment of the trial court and affirm the decision of the BZA.
. Three of the fifteen purposes of the Beverly Shores zoning ordinance are as follows:
“To promote the public health, safety, comfort, morals, and general welfare of the Town of Beverly Shores in light of the Town’s reliance on private wells and septic systems and the lack of a tax base for a public water and sewer system in the foreseeable future.
To conserve the values of property throughout the Town of Beverly Shores and to preserve the character, ambience, and stability of residential areas and to insure that landscape continues to be generally dominate [sic] over the improvements.
To encourage the conservation of natural contours, vegetation, wild life and all the scenic qualities of the area of the sand dunes and all associated and related geographical elements which are so unique and valuable to the balance of nature. The special value of Beverly Shores is that it is one of the few towns which contains beautiful and unique ecological specimens.”
Sections 110.1-110.3