Posted by: Patricia Salkin | August 29, 2018

IN Appeals Court Dismisses Variance Challenge for Lack of Standing

This post was authored by Amy Lavine, Esq.

A case decided in August by the Court of Appeals of Indiana affirmed the dismissal of an adjacent property owner’s challenge regarding variances granted by the Indianapolis Historic Preservation Commission. The court emphasized that proof of special injury is needed for adjacent property owners to be sufficiently aggrieved to have standing, and proximity alone isn’t enough to meet this aggrievement standard.

The property at issue in this case was granted several variances by the historic preservation commission which would allow the redevelopment of a vacant non-historic building with a residential mixed-use project. These approvals included a use variance that would allow a retail space on one corner of the site, as well as area variances to reduce the open space and floor area-ratio requirements, which were typical for medium and higher density housing developments in the downtown area. David Pflugh, who owned property across the street from the site, appealed the variances, but the trial court found that he wasn’t aggrieved and dismissed his case. Even if he did had standing, the trial court also concluded that it would have affirmed the variances because they were reasonable and consistent with the applicable laws and regulations.

On appeal from the trial court, the Indiana Court of Appeals noted that standing is provided under the state zoning enabling statute only for aggrieved persons who participated in the board hearing and either presented evidence or filed a written statement regarding the subject of the board’s decision. While Pflugh attended and presented evidence at one of the public hearings held by the historic preservation commission in this case, the court on appeal questioned whether he qualified as being “aggrieved.” Pflugh contended that he met this standard due to his status as an adjoining property owner, but the court noted that under Indiana Supreme Court precedent, aggrievement requires that a person “must experience a ‘substantial grievance, a denial of some personal or property right or the imposition … of a burden or obligation.'” Contrary to Pflugh’s argument, the proximity of his property did not automatically establish that he was aggrieved by the historic preservation commission’s decision, the court explained. Rather, he had to show some pecuniary or special injury distinct from any injuries suffered by the community at-large. The trial court had determined that his evidence of such injury was lacking, as Pflugh only alleged injuries that would be shared in common with other nearby property owners, such as increased noise and traffic and the possibility that children would hit baseballs into his yard as a result of the variance allowing reduced open space. The court found this result to be reasonable and not clearly erroneous, and accordingly affirmed the determination that Pflugh did not have standing. Moreover, because Pflugh had not raised the issue of public standing in the trial court, the court found that this argument was waived.

Lastly, although the court disagreed with Pflugh’s assertions of standing, the court found that his claims were not “utterly devoid of plausibility,” and on this basis it declined to assess damages for frivolity or bad faith. As the court noted, Pflugh “made at least a colorable argument that he would qualify as an ‘aggrieved’ person by living across the street from the Site. Appellees have failed to establish that Pflugh’s entire appeal is so frivolous or in bad faith as to warrant the award of appellate attorney’s fees.”

Pflugh v. Indianapolis Historic Preservation Commission,  2018 WL 4003193 (IN App. 8/1/2018).


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