Opinion
23A-PL-2538
07-18-2024
The Board of Zoning Appeals for Floyd County, Indiana, Appellant-Respondent, v. Joe Kirchgessner and Stephanie R. Kirchgessner, Appellees-Petitioners.
ATTORNEY FOR APPELLANT Kristi L. Fox The Fox Law Offices, LLC New Albany, Indiana ATTORNEY FOR APPELLEES John A. Kraft Young, Lind, Endres & Kraft New Albany, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Floyd Circuit Court The Honorable N. Lisa Glickfield, Special Judge Trial Court Cause No. 22C01-2203-PL-275
ATTORNEY FOR APPELLANT
Kristi L. Fox The Fox Law Offices, LLC New Albany, Indiana
ATTORNEY FOR APPELLEES
John A. Kraft Young, Lind, Endres & Kraft New Albany, Indiana
MEMORANDUM DECISION
SHEPARD, SENIOR JUDGE
[¶1] The Board of Zoning Appeals for Floyd County denied two variance petitions filed by Joe Kirchgessner and Stephanie R. Kirchgessner in relation to a swimming pool they installed at their home. The Kirchgessners sought judicial review, and the trial court set aside the Board's decisions and remanded for further proceedings. The Board appeals. Concluding the Board's denials of the variance petitions are supported by substantial evidence and are not arbitrary and capricious, we reverse.
Issues
[¶2] The Board raises two issues, which we restate as: whether the trial court erred in determining the Board's decisions lack evidentiary support and are arbitrary and capricious.
Facts and Procedural History
[¶3] The Kirchgessners own a home on Bugaboo Lane in Sellersburg, Indiana. Their lot is long and narrow. One side of their lot adjoins another long lot, which is owned by the Brumleve Family Limited Partnership ('the Partnership"). The Kirchgessners' lot and the Partnership's lot are zoned for residential use. The other side of the Kirchgessners' lot adjoins seven smaller lots, which are part of a subdivision.
[¶4] In 2021, the Kirchgessners installed a round swimming pool, surrounded by a concrete walkway, between their house and Bugaboo Lane. They did not obtain a construction permit. The pool sits on a slope, and so the western side of the pool and the walkway are supported by a brick wall. The brick wall can be seen from the road. The pool lacks a fence or a retractable cover. It sits on the line between the Kirchgessners' lot and the Partnership's lot, with part of the concrete walkway encroaching on the neighboring lot.
[¶5] The pool came to the attention of the Floyd County Department of Building and Development Services ("the Department") after an unidentified person complained about sediment running off the property. On October 6, 2021, the Department sent the Kirchgessners a notice of violation. The Department cited the following violations of the county's zoning code: (1) installing the pool without first obtaining a permit; (2) placing the pool in a location other than at the rear or side of the property's primary structure (the house); and (3) failing to comply with an eight-foot setback requirement, meaning the pool was too close to the property line. The notice further stated the Kirchgessners would have to obtain variances to address issues (2) and (3).
[¶6] In January 2022, the Kirchgessners requested two variances, one to address the placement of the pool in the front yard and another to address the setback issue. In a cover letter, they acknowledged the pool was placed between the road and their home. They stated they "request[ed] a variance to FCZO section 5.04, section I., for an in-ground pool to be placed in the front of the primary structure on the property. The pool is place [sic] back behind the minimum front setback." Appellant's App. Vol. II, p. 49. The Board scheduled a public hearing to address the variance petitions.
[¶7] On January 26, 2022, the Department prepared a report on the variance petitions. The report noted the pool itself sat within four feet of the property line, with the concrete walkway encroaching on the neighboring lot. The report notes the pool lacked a fence or retractable cover, and its location in the front yard "conflicts with community expectations of privacy." Id. at 46. The Department's staff explained the pool's encroachment on a neighboring property will limit that property's use, and the Kirchgessners' "property has other viable locations to place accessory structures." Id. Staff recommended the Board order the Kirchgessners to remove the pool.
[¶8] Next, on February 8, 2022, the Department's Director, Nick Creevy, emailed a substantial packet of documents to Board members about the Kirchgessners' petitions. The packet included the Kirchgessners' cover letter and petitions, the staff report, blank ballots for the Board to vote on each petition, diagrams of the property, photographs, the notice of violation, and emails between Joe Kirchgessner and a Department employee.
[¶9] On February 14, 2022, the Board held a public meeting on the Kirchgessners' variance petitions and other business. Director Creevy, the Kirchgessners, and several neighbors addressed the Board. After hearing the presentations, the Board unanimously voted to deny both variance petitions and ordered the Kirchgessners to remove the pool within sixty days. The Board's members signed separate ballots for each petition. As to the placement of the pool in the front yard, the Board made the following relevant findings:
1. Approval of the variance (WILL NOT/WILL) be injurious to the public health, safety, morals, and general welfare of the community because: the structure was built without a permit or appropriate inspections. It has been built without a fence or approved retractable cover. Location of the pool in the front yard conflicts with the community expectations of privacy.
2. The use and value of the area adjacent to the property included in the variance (WILL NOT/WILL) be affected in a substantially adverse manner because: the pool structure was constructed in the front yard thus is visible from the street and will have negative impacts on the values of adjacent properties as well as the subject property.
3. The strict application of the terms of the zoning ordinance (WILL/WILL NOT) result in practical difficulties in the use of the property because: the property has other viable locations to place accessory structures.Id. at 98. For the first two findings, an unidentified person circled "WILL." Id. For the third finding, the person circled "WILL NOT." Id.
[¶10] As for the setback issue, the Board found as follows:
1. Approval of the variance (WILL NOT/WILL) be injurious to the public health, safety, morals, and general welfare of the community because: the pool was built without a permit or
appropriate inspections. It has been built over the property line and without a fence or approved retractable cover.
2. The use and value of the area adjacent to the property included in the variance (WILL NOT/WILL) be affected in a substantially adverse manner because: the pool structure was constructed without the proper side yard setback (over the property line). Which [sic] will have negative impacts on the values of adjacent properties and create difficulties for the owner to sell the property.
3. The strict application of the terms of the zoning ordinance (WILL/WILL NOT) result in practical difficulties in the use of the property because: the property has other viable locations to place accessory structures.Id. at 100. For the first two findings, an unidentified person again circled "WILL." Id. For the third finding, the person circled "WILL NOT." Id.
[¶11] The Kirchgessners petitioned for judicial review and a request to stay enforcement of the Board's decision. Next, they requested permission to pursue discovery, specifically a deposition of Director Creevy. The court allowed the Kirchgessners to take the deposition.
[¶12] After holding a hearing, the court issued an order. In the order, the court declined to consider any evidence outside the administrative record. The court determined the Board's rejection of the Kirchgessners' variance petitions was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law and further is prejudicial to [the Kirchgessners]." Id. at 19. The court stated the Board members had "acted with hostility" and with "intention to punish" the Kirchgessners. Id. And the evidence in support of the Board's position was "meager." Id. at 19-20. Finally, the court remanded the case to the Board for further proceedings. This appeal followed.
Discussion and Decision
[¶13] The Board asks us to reverse the trial court's judgment and allow the Board's denials to stand. When we review a zoning board's decisions, this Court and a trial court are bound by the same standard. Tipton Cnty. Bd. of Zoning Appeals v. Hope for the Hurting, 230 N.E.3d 322, 328 (Ind.Ct.App. 2024). "The court may not try the cause de novo or substitute its judgment for that of the board." Ind. Code § 36-7-4-1611 (2011). "We presume the determination of the [board], an administrative agency with expertise in zoning matters, is correct." Tipton Cnty., 230 N.E.3d at 328. As a result, "we uphold agency findings that are supported by substantial evidence." Noblesville, Ind. Bd. of Zoning Appeals v. FMG Indianapolis, LLC, 217 N.E.3d 510, 513 (Ind. 2023). We do not "reweigh the evidence or reassess the credibility of the witnesses." Riverside Meadows I, LLC v. City of Jeffersonville, Ind. Bd. of Zoning Appeals, 72 N.E.3d 534, 538 (Ind.Ct.App. 2017). "However, we review de novo any questions of law decided by the [board]." Mammoth Solar v. Ehrlich, 196 N.E.3d 221, 236 (Ind.Ct.App. 2022).
[¶14] A party seeking judicial review of a zoning decision bears the burden of demonstrating the decision is invalid. Ind. Code § 36-7-4-1614(a) (2011). The court shall grant relief from the zoning decision if the court determines a person seeking judicial relief has been prejudiced by a zoning 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.
I.C. § 36-7-4-1614(d).
[¶15] The Board's challenges to the trial court's judgment fall into two categories: whether the Board's decisions were supported by substantial evidence, and whether the Board's decisions were arbitrary and capricious.
A. Substantial Evidence
[¶16] The Board argues the trial court should not have overturned its decisions because there is substantial evidence to sustain the denials of the Kirchgessners' petitions. "Evidence is considered to be substantial if it is more than a scintilla and less than a preponderance." Burton v. Bd. of Zoning Appeals of Madison Cnty., 174 N.E.3d 202, 215 (Ind.Ct.App. 2021), trans. denied.
[¶17] A board of zoning appeals is authorized to "approve or deny variances from the development standards (such as height, bulk, or area) of the zoning ordinance." Ind. Code § 36-7-4-918.5(a) (2011). In particular:
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;
(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.Id. Courts may consider the following nonexclusive factors in determining whether strict application of the ordinance will result in practical difficulties: "1) whether 'significant economic injury' will result if the ordinance is enforced; 2) whether the injury is self-created; and 3) whether there are feasible alternatives." Edward Rose of Indiana, LLC v. Metro. Bd. of Zoning Appeals, Div. II, Indianapolis-Marion Cnty., 907 N.E.2d 598, 605 (Ind.Ct.App. 2009) (quoting Metro. Bd. of Zoning Appeals v. McDonald's Corp., 481 N.E.2d 141, 146 (Ind.Ct.App. 1985), clarified on other grounds on reh'g, 489 N.E.2d 143 (1986), trans. denied), trans. denied.
[¶18] In this case, the Board issued findings addressing each element set forth in Indiana Code section 36-7-4-918.5(a). As to the front yard variance, there is evidence to sustain each finding: (1) Director Creevy stated the pool (which was built without permits or inspections) was visible from the road, and a photograph shows the pool's retaining wall can be seen from Bugaboo Lane, demonstrating the pool's placement violates the community's general expectations of privacy; (2) Mr. Kirchgessner conceded building a pool in one's front yard can hurt the value of neighboring properties (Appellant's App. Vol. II, p. 27); and (3) Director Creevy stated there are other places for a pool on the Kirchgessners' property.
[¶19] As for the setback variance, there is no dispute that not only is the pool within the eight-foot setback zone described in the notice of violation, but the pool's concrete walkway encroaches on the Partnership's lot. Allowing a variance for such an intrusive structure could foreseeably give rise to discord among neighbors. Thus, there is evidence to support the Board's finding that the setback violation injures the general welfare of the community.
[¶20] Furthermore, the Partnership could face difficulties using or selling its lot because the Kirchgessner's concrete walkway intrudes upon it, and the pool is right on the boundary line. And, again, Mr. Kirchgessner conceded a pool in the front yard could negatively affect property values. There is evidence to support the Board's finding that the setback violation would adversely affect adjacent properties.
[¶21] Finally, Director Creevy stated the Kirchgessners could place the pool in another location on their property, demonstrating a feasible alternative exists. And any economic injury to the Kirchgessners resulting from enforcing the zoning code is self-inflicted, because there is no dispute they failed to seek a construction permit before building the pool. In sum, there is substantial evidentiary support for the Board's findings rejecting the setback variance. See Town of Beverly Shores v. Bagnall, 590 N.E.2d 1059, 1063 (Ind. 1992) (reversing trial court's rejection of a zoning board's denial of a variance petition seeking to level a sand dune; zoning board's decision was supported by substantial evidence and not subject to reversal on factual grounds); see also McDonald's Corp., 481 N.E.2d at 147 (reversing trial court's rejection of a zoning board's denial of a variance petition seeking to install a sign for a business; the parties submitted conflicting evidence, and it was board's job to resolve conflict).
[¶22] The Kirchgessners point to evidence showing the pool was not visible from the road and there was no other place on their lot where they could have installed the pool. They also note the Partnership never complained about the pool encroaching on the lot, either at the hearing or by other means. But, as noted, neither we nor the trial court may reweigh the evidence.
[¶23] The Kirchgessners further point to the trial court's determination that Director Creevy presented little or no "supporting evidence or documentation" to support his statements during the hearing. Appellants' App. Vol. II, p. 19. But employees of a local governmental unit may speak "in support of or in opposition to the granting of a variance ...." Ind. Code § 36-7-4-920(e) (1983). Director Creevy's statements at the hearing, together with the other materials in the packet he sent to the Board prior to the hearing and other persons' statements at the hearing, provide evidentiary support for the Board's determination. In summary, the trial court erred in concluding the Board's denial of the Kirchgessners' petitions lacked substantial evidentiary support. Cf. Snyder v. Kosciusko Cnty. Bd. of Zoning Appeals, 774 N.E.2d 550, 554 (Ind.Ct.App. 2002) (affirming trial court's affirmance of zoning board's partial approval of variance; board's decision supported by substantial evidence and Court would not reweigh conflicting facts), trans. denied.
The Kirchgessners also cite Director Creevy's deposition testimony, which they have submitted to the Court in an Appendix, to contest whether he had spent enough time at their property to understand potential alternative locations for the pool. But the trial court did not consider any evidence outside of the administrative record, and the Kirchgessners do not argue that portion of the trial court's decision was erroneous. As a result, we must decline to consider the deposition.
B. Arbitrary and Capricious
[¶24] The Board next claims the trial court erred in concluding the Board's denial was arbitrary and capricious. In particular, the Board claims the court erred in determining the Board was "hostile" to the Kirchgessners, Appellants' App. Vol. II, p. 19, and did not allow them a sufficient chance to advocate for their petitions. "A decision is arbitrary and capricious if it is 'patently unreasonable[;] made without consideration of the facts and in total disregard of the circumstances and lacks any basis which might lead a reasonable person to the same conclusion.'" Lockerbie Glove Factory Town Home Owners Ass'n, Inc. v. Indianapolis Hist. Pres. Comm'n, 106 N.E.3d 482, 488 (Ind.Ct.App. 2018) (quoting City of Indianapolis v. Woods, 703 N.E.2d 1087, 1091 (Ind.Ct.App. 1998), trans. denied), trans. denied.
[¶25] "We will not interfere with the administrative process in the absence of a demonstration of actual bias." Id. at 489. "Biased behavior may be demonstrated by extreme partisan political considerations, personal conflicts of interest and gain, or invidious discriminatory intent." City of Hobart Common Council v. Behav. Inst. of Ind., LLC, 785 N.E.2d 238, 253 (Ind.Ct.App. 2003).
[¶26] Here, Board members repeatedly stated during the hearing that the Kirchgessners' failure to seek a permit before construction caused the difficulties with the pool. The Kirchgessners depict the Board members as "hung up" on the absence of a permit. Appellees' Br. p. 23. But the Kirchgessners' lack of a permit was a valid consideration in determining whether they caused any economic difficulties that may result from the Board strictly enforcing the zoning code. See Edward Rose, 907 N.E.2d at 605 (noting, "self-creation" of economic injury is a factor in determining whether strict enforcement will result in practical difficulties).
[¶27] Further, rather than displaying bias against the Kirchgessners or callousness toward their circumstances, Board members were reluctant to order removal of the swimming pool. One member, Ms. Smock, described the staff's removal recommendation as "unusual." Appellant's App. Vol. II, p. 24. Another told the Kirchgessners, "I kind of feel for where you're at[.]" Id. at 27. A third member stated, "our object isn't . . . to be punitive[,] it's to uphold the ordinances that exist today." Id. at 29. At the end of the hearing, Ms. Smock asked whether the Kirchgessners could change their address to a "side road," perhaps to eliminate the issue of the pool being in the lot's front yard. Id. at 35.
[¶28] Also, the Board members did not bar the Kirchgessners from speaking during the hearing. The presiding member appeared to follow a set order for speakers, starting with hearing from the staff and the Kirchgessners, followed by anyone else who wanted to speak in favor of the variance petitions, and then anyone who wanted to oppose the petitions. The presiding member stopped Mr. Kirchgessner from speaking while the floor was open for supporters but allowed him to have the last word before members voted. The record fails to show the Board disregarded the Kirchgessners' point of view or intended to punish them.
[¶29] On a related note, the Kirchgessners claim the Board made its decision prior to the hearing, and the hearing was a mere "formality" and a "farce." Appellees' Br. pp. 13-14. And the trial court found the findings of fact set forth in the Board's ballots matched the staff's comments in the report. While the court's finding is correct, the record does not support a conclusion that the Board was merely following the staff's directions or had already decided the matter before the hearing. To the contrary, during the hearing the Board members and the Board's counsel discussed the possible consequences of granting one or both variances and explored alternatives that could eliminate the need for any variances here. Further, one of the members made written alterations to the ballot during voting, and they discussed which findings applied to each variance. In short, the Board's decision was not based on bias and was not prejudged or made in total disregard of the facts and circumstances. The trial court erred in concluding the Board's decision was arbitrary or capricious. Cf. Dep't of Bus. and Neighborhood Servs. of Consol. City of Indianapolis v. H-Indy, LLC, 166 N.E.3d 347, 359-60 (Ind.Ct.App. 2021) (affirming trial court's reversal of zoning board decision; board's denial of sign and structural permits to business was based on irrelevant information and unsupported factual speculation that the business would operate in violation of zoning code if allowed to proceed).
Conclusion
[¶30] For the reasons stated above, we reverse the judgment of the trial court.
[¶31] Reversed.
Riley, J., and Bradford, J., concur.