HomeMy WebLinkAboutReply in Support of MTD-cCITY OF CARMEL
BOARD OF ZONING APPEALS
IN RE MCCRACKEN BOURDILLON )
ESTATE, LOT 1– BOWEN ACCESSORY ) DOCKET NO. 14100022V
BUILDING HEIGHT )
REMONSTRATORS' REPLY IN SUPPORT OF MOTION TO DISMISS
APPLICATION FOR DEVELOPMENT STANDARDS VARIANCE
The Indiana Code provides that a BZA may not grant a variance from a height ordinance
unless the landowner who wants the variance demonstrates three statutory criteria are met. If the
landowner fails to demonstrate any one of these criteria, caselaw says the BZA must deny the
variance. In 2011, when the Bowens first asked for a variance from the Carmel height
ordinance, the BZA found against the Bowens on all three statutory criteria. Now the Bowens
claim they are entitled to a do -over. But the Bowens do not even attempt to demonstrate, as they
must, a change in the facts underlying each of the reasons for the BZA's initial denial. They
only attempt to show a change in the facts underlying one of those reasons, pointing to the
landscaping that the Barnettes put in to camouflage the Bowens' barn. But even as to that one
reason the Bowens fail to carry their burden. The landscaping does not change the fact that the
barn is still visible from both levels of the Barnettes' home. And the landscaping certainly does
not change the fact that the Barnettes have lost their view of the wooded valley behind their
home. Nor does it change the fact that the value of their home has been diminished as a result.
The only reason the Barnettes put in the landscaping anyway is because the Bowens put in a
building that violates the height ordinance. The Bowens now have no right to take advantage of
their own wrongdoing to avoid the doctrine of res judicata. The BZA's rules of procedure do
not provide otherwise. They do not purport to overrule —and indeed could not overrule —the
decisions of our Court of Appeals that make res judicata applicable to variance petitions. The
Bowens' current petition for a variance therefore must be dismissed.
I. The Bowens have the burden to establish a material change as to all three of the
reasons the BZA gave for denying their first variance petition, a burden the Bowens
have failed to carry.
The Bowens acknowledge that they bear the burden of proving "a change in the
conditions, circumstances or facts which induced the prior denial" of their variance petition.
Bowens' Resp. p. 4 (citing Easely v. Metro. BZA of Marion Cnty., 317 N.E.2d 185, 192 (Ind. Ct.
App. 1974)). (The cases cited here are attached collectively as Exhibit 1) What the Bowens fail
to acknowledge, however, is that "it is not any changed circumstance or condition which will
authorize subsequent reconsideration." Easely, 317 N.E.2d at 192. Rather, it must be a change
that would "vitiate or materially affect the reasons which produced and supported" the prior
decision. Id. (internal quotation marks and citation omitted). A fact is only material "if it affects
the outcome." Ewing v. Bd. of Trustees of Pulaski Mem'l Hosp., 486 N.E.2d 1094, 1097 (Ind.
Ct. App. 1985).
To obtain a variance from a height ordinance, a petitioner must make three separate and
independent showings:
(1) the approval [of the variance] 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....
Ind. Code § 36 -7 -4- 918.5. A petitioner's failure to establish any one of these elements dooms
the variance request. See, e.g., Boyle v. Kosciusko Cnty., 565 N.E.2d 1157, 1161 (Ind. Ct. App.
1991) (holding that a petition for a variance had to be denied because, even though the petitioner
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had "satisfactorily proven [the first] prerequisite," he "did not carry his burden of proving all
three prerequisites of the variance statute ").
In the Bowens' first variance proceeding, the BZA found against the Bowens as to all
three of the statutory criteria. BZA Findings of Fact 13 (Exhibit 6 to Mot. to Dismiss). It
follows, then, that a change in facts as to just one of these statutory prerequisites would not alter
the outcome here. Yet that is all the Bowens have tried to show —a change as to only one of the
BZA's reasons for denying their previous variance request. And even as to that one criterion, the
first, they do not succeed in carrying their burden.
A. The Bowens have failed to prove a change as to the circumstances underlying
the BZA's finding that the Bowens' first variance request did not meet the
first statutory criterion: that "the approval [of the variance] will not be
injurious to the public health, safety, morals, and general welfare of the
community."
The first reason the BZA gave for denying the Bowens' pervious variance petition was
that "[t]he existing barn ... is visible from adjoining properties and thereby adversely affects the
general welfare of the community as it is unsightly and not harmonious with accessory buildings
related to adjoining residential homes." BZA Findings of Fact ¶ 1 (Exhibit 6 to Motion to
Dismiss). This finding goes to the first statutory criterion and is the only finding as to which the
Bowens claim the facts have changed. In particular, the Bowens argue that, since their previous
petition was denied, the Barnettes have "moved and shaped dirt to build up a mound with a
bulldozer and then planted many fully -grown coniferous trees on the northeast corner of their
backyard to serve as a buffer to visually block the view of the structure from their home."
Bowen Resp. p. 3.
There are three main problems with the Bowens' argument. First, the law does not allow
the Bowens to benefit from their own wrongdoing. Their argument about the landscaping is an
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attempt to do just that. The reason the Barnettes put in landscaping was because the Bowens put
in a building that exceeds the maximum height limitation. The landscaping was the Barnettes'
attempt to shield that illegal building from their view. The law has long recognized "`that no
man shall be permitted to profit by, or take advantage of, his own wrong."' Alldredge v. Good
Samaritan Home, Inc., 2014 WL 2504551, at *4 (Ind. June 3, 2014) (quoting Talbot v. Jansen, 3
U.S. 133 (1795)). This principle is "[d]eeply rooted in our jurisprudence." Glus v. Brooklyn E.
Dist. Terminal, 359 U.S. 231, 232 -33 (1959). The Bowens cannot cause harm to the Barnettes
and their property and then obtain a variance -based on the Barnettes' own efforts and expense to
mitigate that harm.
Second, the BZA's finding pertained to multiple "adjoining properties " — plural —not just
the Barnettes' property. The Bowens do not suggest the barn is no longer visible from all
adjoining properties. Nor do they claim that there has been any change to the barn, let alone a
change that makes it no longer "unsightly and not harmonious with accessory buildings related to
adjoining residential homes." BZA Findings of Fact ¶ 1 (Exhibit 6 to Motion to Dismiss). The
Bowens' apparent intent to have some of their neighbors testify at the upcoming hearing that
they approve of the barn is simply an attempt to re- litigate this point, which is precisely what the
doctrine of res judicata bars. See Luxury Townhomes, LLC v. McKinley Properties, Inc., 992
N.E.2d 810, 816 -18 (Ind. Ct. App. 2013) (explaining that res judicata bars the re- litigation of an
issue previously decided), transfer denied, 999 N.E.2d 416 (Ind. 2013).
Third, and at all events, the fact that the Barnettes put in landscaping does not constitute
a material change in circumstances. The BZA knew about and considered the trees before
denying the Bowens' previous petition for variance. Mr. Barnette informed the BZA at the
initial hearing that he was in the process of installing evergreens in an attempt to screen the barn.
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"[W]e are doing the best we can to try to block the view," Mr. Barnette stated, "and [we've
taken] down some scrub leaf trees and are putting in evergreens." April 25, 2011 BZA Hearing
Video at 2:07 - 2:09.1 But as the Hearing Minutes reflect, "[n]ew evergreen trees on the hill still
d[id] not block the view from the house." BZA Apr. 25, 2011 Hr'g Minutes at 12 (Ex. 2).
That remains true to this day. Attached are affidavits from the Barnettes with pictures
showing that the barn is still visible from both levels of their home. See Jan. 5, 2015 Aff. of J.
Barnette, Jr. ¶ 12 (Ex. 3); Jan. 5, 2015 Aff. of C. Barnette 112 (Ex. 4).
Moreover, the landscaping does nothing to change the fact that the Barnettes have still
lost their view of the wooded area behind their home —a view for which they paid a premium.
See BZA April 25, 2011 Minutes at 11; April 25, 2011 BZA Hearing Video at 2:11; Jan. 5, 2015
Aff. of J. Barnette, Jr. % 5 -6, 10; Jan. 5, 2015 Aff. of C. Barnette 115-6, 10. Indiana caselaw
recognizes that an obstruction of natural scenery is a valid reason for denying a variance wholly
apart from the unsightliness of the building causing the obstruction. See, e.g., Boyle, 565 N.E.2d
at 1160 (affirming the denial of a variance where the petitioner had not "successfully proven that
the use and value of adjacent areas will not be affected in a substantially adverse manner"
because "[r]emonstrators testified at the hearing that Boyle's structure interfered with sunbathing
and with their view of the lake ")
The Bowens reliance on Boffo v. Boone County BZA, 421 N.E.2d 1119 (Ind. Ct. App.
1981), is misplaced. In that case it was the petitioner (the person seeking the special exception),
not the remonstrator (the person opposing the special exception), who incurred the time and
expense of building a mound to block the unsightly view. Boffo thus does not provide any
1 Available athttp://carmel-in.granicus.com/MediaPlayer.php? view_id =9 & clip_id =355.
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support for the reverse notion: that a petitioner can take advantage of a remonstrator's expense
and effort in trying mitigate the unsightliness of a non - conforming building.
Furthermore, unlike in this case, the board in Boffo had not previously stated the reasons
for denying the initial petition. So "`the focus [could not] be placed on the facts or conclusions
which prompted the prior denial. "' Id. at 1126 (quoting Easely, 317 N.E.2d at 193). "`Those
facts and conclusions, "' the court said, "`are locked subjectively in the minds of the members of
the Board which denied the prior petition. "' Id. at 1126. In contrast, the BZA here, in denying
the Bowens' first request for a variance, did make specific findings. And so we can assess
whether the facts have so changed as to undermine the basis for those findings. As explained,
the facts have not materially changed, and thus the BZA's findings are conclusive.
The other case the Bowens cite, Pequinot v. Allen County BZA, 446 N.E.2d 1021 (Ind. Ct.
App. 1983), does not help them either. There, the board denied a request for a special exception
for a single reason: "there was no showing that the proposed [asphalt] plant would eliminate
sources of pollution, particulate matter, odor or liquid waste." Id. at 1026. In the second
application for the special exception, the petitioner showed that new regulations had been
enacted after the previous denial and that these new regulations "substantially limited]
permissible pollution levels." Id. at 1027. That change went directly to the single reason the
board previously gave for denying the special exception. Here, in contrast, the BZA gave
multiple reasons for denying the variance — three, to be precise —each independently sufficient to
justify the BZA's decision. The Bowens do not even attempt to show a material change as to
each of those three reasons.
Because the Bowens have failed to demonstrate a change as to the facts underlying the
BZA's first reason for denying their previous variance petition, the Bowens' current variance
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petition is barred. The BZA should dismiss the Bowens' variance petition for this reason alone.
B. The Bowens have failed to prove a change as to the circumstances underlying
the BZA's finding that the Bowens' first variance request did not meet the
second statutory criterion: that "the use and value of the area adjacent to the
property included in the variance will not be affected in a substantially
adverse manner."
A second, independent reason the BZA gave for denying the variance was that "[t]he
existing barn, which is approximately 36.5 feet in height, has been demonstrated to have a
material adverse impact on the value of adjoining properties, as evidenced by the affidavit of
Karen Hyde French dated April 18, 2011." BZA Findings of Fact ¶ 2 (Exhibit 6 to Motion to
Dismiss). Note again the use of the plural: "adjoining properties." Although the BZA primarily
focused on the value of the Barrettes' property, the BZA's factual findings pertained to multiple
properties. As with the BZA's first reason for denying the variance, this finding also meant that
the BZA had to deny the request. Yet, the Bowens do not even suggest the barn's adverse
impact on neighboring property values has been eliminated.
And indeed that adverse impact has not been eliminated. As referenced in the BZA's
findings, Karen Hyde French, a realtor familiar with the Barnettes' property and others like it,
provided an affidavit in the first variance proceeding. In that affidavit she testified that the barn
"visually impairs the use and enjoyment of the Barnette Property" and as a result reduces its
value by "not less than $100,000." Apr. 18, 2011 Aff. of K. French ¶ 7 (Exhibit 10 to Mot. to
Dismiss).
Her opinion remains unchanged. Attached is a recent affidavit from Ms. French in which
she reaffirms her first affidavit. Jan. 5, 2015 Aff. of K. French ¶¶ 4, 6 -9 (Ex. 4).
Because the Bowens have failed to demonstrate a change as to the facts underlying the
BZA's second reason for denying the previous variance petition, the Bowens' current variance
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petition is barred. The BZA should dismiss the Bowens' variance petition for this second
independent reason.
C. The Bowens have failed to prove a change as to the circumstances underlying
the BZA's finding that the Bowens' first variance request did not meet the
third statutory criterion: that "the strict application of the terms of the
zoning ordinance will result in practical difficulties in the use of the
property."
Finally, the BZA denied the Bowens' initial variance petition for the reason that the
"[t]he proposed accessory barn can be constructed in a manner so that it is compliant with the
Carmel Zoning Ordinance and any practical difficulties that exist have been caused by the
actions of the Petitioner." BZA Findings of Fact $ 3 (Exhibit 6 to Motion to Dismiss). That
finding is consistent with caselaw, which provides that one of the key considerations in
determining the existence of "practical difficulties" is "whether the injury is self - created or self-
imposed." See, e.g., Metro. BZA of Marion Cnty., Div. II v. McDonald's Corp., 481 N.E.2d 141,
146 (Ind. Ct. App. 1985). As the Indiana Court of Appeals found in this case, "the relevant facts ,
were equally known by or accessible to the Bowens ...." Op. at *4, Barnette v. U.S. Architects,
LLP (Ind. Ct. App. 2014) (emphasis added), reh'g denied (Exhibit 1 to Mot. to Dismiss). The
"relevant facts" included the maximum height limitation under the Zoning Ordinance. Id. at
*4 -5.
The BZA's finding as to the third statutory criterion states a historical fact. Thus there
can be no material change in circumstances that would alter that finding. The Bowens can't re-
write history, after all. And in any event, the Bowens do not suggest there has been any change
as to the facts underlying this finding. The BZA therefore should dismiss the variance petition
for this third independent reason.
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