Neighborhoods for some time have believed that the variance process is too often abused. Some of this abuse manifests itself when a chairman tries to force compromise from “the bench,” other times Indiana State law is not adhered to; sometimes the abuse is due to political influence. The Crooked Creek Community Council (C4) has in the past appealed and reversed decisions that do not follow Indiana State law. I’m pleased to report that C4’s most recent appeal of Celebration Fireworks’ variance of use for their location at 5860 Michigan Road resulted in a reversal of the variance by a 3 – 0 decision.

I’d like to give a brief history of this case: Celebration Fireworks has been selling fireworks (a Commercial-4 use [C4]) at this site (zoned Commercial-3 [C3]) since 1988. This request for a variance of use originated from a citation for contempt of court stemming from an agreed court order that prohibited Celebration Fireworks from selling fireworks in C-3 areas. They were cited in 2000 and 2001 for their failure to comply at their Michigan Road location. Celebration Fireworks filed for a variance of use in October 2001.

Shortly thereafter, C4 was contacted by the Washington Township Fire Marshal, who requested C4’s support in opposing the request for a variance of use by Celebration Fireworks. We agreed to make this a top priority. We received the written support of the Principle of the Crooked Creek Elementary School (one block away) in opposing the variance. The case was heard twice by Board of Zoning Appeals (BZA) III, which failed twice to reach a majority. State Senator Murray Clark, representing the petitioner, submitted the proposed Findings of Fact. Testifying in opposition were neighbors, some businesses, the Fire Marshall, C4 and the Marion County Alliance of Neighborhood Associations (McANA). Staff opposed the request.

C4 and impacted neighbors appealed the case to the Marion Superior Court on May 8, 2002. Judge Steven Frank heard the case and affirmed the variance of use in February 2003. The case was appealed to the Indiana Court of Appeals. Judge Najam wrote the decision, Judges Robb and Mathias concurred, reversing the variance of use.

The decision was reached based on the premise that all five findings of fact must be proved, that the findings must be specific enough to enable judicial review and that the finding rely on evidence in the record which “rest on a rational basis.” The Court reviewed the first finding of fact: THE GRANT WILL NOT BE INJURIOUS TO THE PUBLIC HEALTH, SAFETY, MORALS, AND GENNERAL WELFARE OF THE COMMUNITY BECAUSE: (Petitioner’s response) “The proposed use will not cause pollution, traffic congestion, unsanitary conditions or negatively impact drainage.” The Court found that the BZA’s “evidence bears no rational relationship to the Board’s actual finding.” There’s a footnote that states: “It appears that the finding, which is irrelevant to this case, may have been ‘cut and pasted’ from another Board decision.” The Court was “compelled to hold that the Board’s findings under Indiana Code Section 36-7-4-918.4(1) does not rest upon a rational basis in that it is unsupported by evidence in the record.” “Accordingly, we conclude that the Board abused its discretion when it granted Celebration Fireworks’ petition for a variance of use, and we reverse the trial court’s judgment affirming the Board’s decision.

I wish to thank our legal team, attorneys before the BZA -- Hal Kunz and Kevin Dogan, as well as our attorneys conducting the appeals – Hal Kunz, Greg Silver, Craig Turner and Dorothy Hertzel.

There are some issues that this decision raises. (1) Such BZA decisions create needless expense to neighborhoods OR force them to live with an illegal decision. Most neighborhoods do not have the resources or ability to appeal a variance case once, let alone twice. The cost to over-turn this case was over $10,000. I’d like to thank our financial supporters, particularly major donors Dr. Beurt SerVaas, Christel DeHaan and Hal Kunz. The cost in time and effort of remonstrators, our pro bono attorney before the BZA, Kevin Dogan, and C4 was immense. In addition, the City of Indianapolis had to defend this case, probably costing thousands of taxpayer’s dollars. (2) This decision permitted the politicalization of the Land Use process. It identifies a conflict between the role of attorney and state legislator. This should not be tolerated. The Land Use process is completely undermined when the process is politicized. The apparent political influence of the Fire Marshall and school district is egregious. In addition, the political testimony of Rep. Murphy (from the south-side) and Sen. Howard were spurious arguments that had no relation to the decision making process for a variance. The political letters from Councilor Soards, Rep. Summers and Rep. Averill were inappropriate since they did not represent the location in question. (3) The variance procedure did not follow Indiana State law, ignored the Staff’s correct assessment of this case and allowed political influence to undermine the process. Clearly mandatory training is necessary for BZA members so they recognize when the politicalization of the process is occurring, as well as knowing and upholding Indiana State law.

I’m pleased that McANA is willing to address these issues at the highest levels of City Government. The Mayor and City-County Council should consider these issues and the past record of prospective appointees when reviewing appointments for the MDC and the BZA.