Posted by: Patricia Salkin | February 25, 2015

IN App. Court Holds Property Owner Demonstrated that Strict Application of Ordinance Would Result in Practical Difficulties, Supporting Grant of Variance for Seawall

Caddyshack Looper, LLC, owned real property adjacent to Lake Michigan on Lake Shore Drive, Long Beach, LaPorte County, Indiana. Caddyshack petitioned for review of decision by town board of zoning appeals denying request for variance from ordinance restricting distance of structures from road and proximity to the lake. Caddyshack now appeals the trial court’s order affirming a decision by the Long Beach Advisory Board of Zoning Appeals (the “BZA”) denying a request for a variance by Caddyshack. On appeal, the issue presented was whether the trial court erred in affirming the decision of the BZA that the seawall constructed on Caddyshack’s property was in violation of the Ordinance and must be removed.

Caddyshack first contended that the Ordinance did not apply to its property or seawall. However, the evidence did not show that the seawall in this case was more akin to a fence or did not constitute a structure as contemplated by the Ordinance or that the BZA or trial court erred in finding that the seawall was governed as a structure under the Ordinance. Pursuant to Ind.Code § 36–7–4–918.5(a) 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. As to the feasibility of alternatives, the court found the seawall was built to protect the home from storm damage and the evidence shows that there would have been few, if any, practical alternatives to a seawall within the 106.6–foot setback requirement that would adequately protect the property and that could be installed within the setback without damaging the improvements. Furthermore, Caddyshack presented evidence of the work to remove the seawall and estimates of the cost for removal of $247,575 and $295,125.

Accordingly, based on the evidence before the BZA, the court concluded that Caddyshack demonstrated that strict application of the setback requirement will result in practical difficulties in the use of the property under Ind.Code § 36–7–4–918.5(3). The trial court’s holding was therefore reversed in favor of Caddyshack.

Caddyshack Looper, LLC v Long Beach Advisory Board of Zoning Appeals, 22 NE 3d 694 (Ind. App. 12/4/2014)

The opinion can be accessed at: http://www.in.gov/judiciary/opinions/pdf/12041401ebb.pdf


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