Caddyshack Looper, LLC v. Long Beach Advisory Board of Zoning Appeals

FOR PUBLICATION
Dec 04 2014, 10:06 am
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
STEVEN A. HALE CAREN L. POLLACK
Michigan City, Indiana Pollack Law Firm, P.C.
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CADDYSHACK LOOPER, LLC, )
)
Appellant-Petitioner, )
)
vs. ) No. 46A03-1404-PL-110
)
LONG BEACH ADVISORY BOARD OF )
ZONING APPEALS, )
)
Appellee-Respondent. )
APPEAL FROM THE LAPORTE SUPERIOR COURT
The Honorable Richard R. Stalbrink, Jr., Judge
Cause No. 46D02-1111-PL-139
December 4, 2014
OPINION - FOR PUBLICATION
BROWN, Judge
Caddyshack Looper, LLC, (“Caddyshack”) 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. Caddyshack raises four issues which we consolidate
and restate as whether the court erred in affirming the decision of the BZA. We reverse and
remand.
FACTS AND PROCEDURAL HISTORY
Caddyshack owns certain real property with an address on Lake Shore Drive, Long
Beach, LaPorte County, Indiana. The property is located on the north side of Lake Shore
Drive and is adjacent to the Lake Michigan beachfront. In December 2010, a severe storm
sheared a portion of Caddyshack’s property facing Lake Michigan and created a five- or six-
foot cliff from the existing grade. Shortly thereafter, Caddyshack contacted its general
contractor, Thomas McCormick, who had constructed the house in 2009. In January 2011,
McCormick submitted a building permit application to the Town of Long Beach (the
“Town”) to construct a seawall and attached drawings and other requested information. At
the time, at the request of Anne Heywood, the Clerk-Treasurer of the Town, McCormick
identified where the seawall was to be located on a survey prepared by professional surveyor
Steven Thate.1 A building permit, signed by Clerk-Treasurer Heywood, was issued on
January 24, 2011. McCormick began construction of the seawall in the early part of February
2011.
1 At the BZA hearing, McCormick testified that he had been a general contractor for seventeen years,
that he had previously built several homes and seawalls in Long Beach, and that, in his experience, Clerk-
Treasurer Anne Heywood or Bill Owens, the Town’s Building Inspector, had signed off on many building
permits, and that had been the practice in Long Beach for many years.
2
At some point during construction, Long Beach Building Inspector Bill Owens visited
the construction site, was concerned about the height of the piles, and said that the neighbors
were complaining. McCormick and Owens came to an agreement that, on the west side of
the property, McCormick would cut the sheets one foot lower than the grade, and Owens was
satisfied. On March 7, 2011, Owens again visited the site and verbally told McCormick that
the neighbors were complaining and to stop work. McCormick was ninety percent done
driving the sheet pile on the site and asked Owens to put the stop work order in writing.
Owens mentioned only that the neighbors were complaining and did not at any time raise the
issue of the location of the seawall with McCormick. McCormick completed construction of
the seawall the following day.
On March 18, 2011, Paul Fithian, the Building Commissioner for the Town, sent a
letter to McCormick stating that Fithian had discovered that construction on the property was
in violation of Section 154.060 of the Long Beach View Protection Ordinance (the
“Ordinance”),2 that the specific violation pertained to the location of a structure, i.e. a septic
system and steel seawall, located further than 106.6 feet from the zoning lot line abutting the
Lake Shore Drive public right of way, and that McCormick was notified by the letter to
2
Section 154.060 of the Ordinance, titled View Protection Standards, provided in part in Paragraph
(B)(2):
The waterfront setback from the shoreline upon which the dwelling accessory use, building or
structure, shall be built on a zoning lot that abuts or, if not abutting, is adjacent to a non-
buildable lot, parcel or tract of land, that abuts Lake Michigan shall be a line measured from
the zoning lot line abutting the public right-of-way known as Lake Shore Drive perpendicular
to said zoning lot line, a distance of 106.60 feet. No dwelling, accessory use, building or
structure shall be located any closer to Lake Michigan than 106.60 feet from the zoning lot
line abutting the public right-of-way known as Lake Shore Drive.
3
immediately stop any work in progress and develop a plan to remove any and all structures
on the property located 106.6 or more feet from Lake Shore Drive. McCormick received
Fithian’s letter on March 21, 2011, and as of that date “[t]he project was 100 percent done,”
the site had been cleared of all equipment and debris, and the site had been graded.
Appellant’s Appendix at 335.
In July 2011, Caddyshack filed a petition for a variance to “extend the seawall beyond
the 106.60 foot setback” and “extend the seawall for 36.6 feet on the west side and 36.4 feet
on the East side beyond the 106.60 mark.” Id. at 141. The BZA held hearings on September
13 and October 11, 2011, at which Caddyshack presented evidence and testimony in support
of its petition for a variance and residents of Long Beach expressed their opinions.
Caddyshack presented the testimony of McCormick and surveyor Thate, documentary
evidence of the building permit documents, the survey prepared by Thate, correspondence,
and photographic evidence of the damage to the property following the December 2010
storm and the construction of the seawall. Thate testified that an aerial photograph taken in
2005 shows that approximately thirty-four structures were located in violation of the 106.6-
foot setback and that about seventeen of those were seawalls.3 Caddyshack presented a letter
from appraiser Alan Landing which stated that he looked at the improvements on the
property, did not know of any such improvements that have impacted surrounding property
values negatively, and that homes along the lakefront have long had seawalls and he had yet
to hear of one that caused an impact to the value of a neighbor. Caddyshack also presented
3
The exhibit of the photograph is not included in the record.
4
evidence of the work to remove the seawall and estimates of the cost of the removal of
$247,575 and $295,125. Steve Parrett, a subcontractor who worked on the seawall, testified
that he believed the seawall actually helped protect the neighboring properties and that
removing the seawall would be very difficult, time consuming, and costly. The residents’
opinions included that the seawall created an eyesore, that Caddyshack and McCormick
should have known of the 106.6-foot restriction in the Ordinance, and that it would set a bad
precedent for the BZA to grant the variance. Caddyshack’s counsel argued that the BZA
“itself has in the past granted variances from the [] Ordinance,” that it “did so at [its] August
9th meeting of this year when [it] granted by a four-to-one vote a variance from this very
same 106.60-foot set-back for the Osborne Trust request,” and that “that was 27.5 feet. So, it
was significant, and close to what we’re talking about in our situation.” Id. at 271-272.
The BZA voted to deny Caddyshack’s request for a variance. The BZA adopted
written findings and decisions dated October 11, 2011, finding in part that it was injurious to
the morals and general welfare of the citizens of the Town to allow a contractor to build a
structure that it should have known violated the Ordinance, that the contractor should have
known a building permit signed by the Town’s Clerk-Treasurer was improperly issued, and
that the contractor acted at its peril in relying on the permit. The BZA further found that the
use and value of the area adjacent to the property would be affected in a substantially adverse
manner. The BZA found that the letter from Alan Landing submitted by Caddyshack “does
not show that any reasonable study was performed on the area adjacent to the property
included in the variance to justify the BZA determining that the use and value of adjacent
properties would not be affected in a substantially adverse manner.” Id. at 332. The BZA
5
also found that the strict application of the Ordinance would not result in practical difficulties
in the use of Caddyshack’s property because “[t]he record in these proceedings is devoid of
any evidence whatsoever showing that a seawall could not be built within the 106.6 ft.
setback as required by Sec. 154.060” of the Ordinance and that “[t]here is an existing buried
seawall at 103.0 ft. from Lakeshore Drive . . . . There is no testimony stating that this
seawall, as it presently exists, or with modification could not provide whatever protection
[Caddyshack] believes it needs for its property.” Id.
On November 9, 2011, Caddyshack filed a verified petition for review with the trial
court. Following the parties’ submissions of memoranda and a hearing, the court entered a
thirty-page order on January 7, 2013 affirming the decision of the BZA. The court first
found that the Ordinance as applied did not constitute an unconstitutional taking and that the
BZA was not estopped from denying Caddyshack’s request for a variance. The court then
addressed the findings and decision of the BZA, focusing on the provisions of Ind. Code §
36-7-4-918.5 regarding the approval of a variance, including when the approval would not be
injurious to the public, when the use and value of the area would not be affected in a
substantially adverse manner, and when the strict application would result in practical
difficulties in the use of the property.4
4 Ind. Code § 36-7-4-918.5 provides:
A board of zoning appeals shall approve or deny variances from the development standards
(such as height, bulk, or area) of the zoning ordinance. 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;
6
With respect to whether approval of Caddyshack’s requested variance would be
injurious to the public, the court found that there was no evidence to support the BZA’s
findings that McCormick should have known the building permit was invalid as it was signed
by the Clerk-Treasurer of the Town, that there was no evidence the Clerk-Treasurer was
unauthorized to sign the building permit, that Owens made several visits to the work site,
knew of the construction and monitored its progress, and did not contest the building permit,
and that the record did not include evidence that would lead a reasonable person to conclude
the permit was improperly issued. The court further found it was undisputed that Owens
verbally asked McCormick to stop construction on March 7, 2011, that McCormick received
a written stop work order from Building Commissioner Paul Fithian on March 21, 2011, and
that as of that date the work on the seawall was finished and the worksite was cleaned up.
The court observed that the reasoning of the BZA was based on whether Caddyshack
obtained an invalid building permit and had knowledge of the setback requirement, that this
was not a proper evaluation of whether granting a variance would be injurious to the public,
and that the claims of the remonstrators were not substantiated by any evidence other than
mere personal opinions. The court then found that “[n]ot a single reason given by the BZA . .
. has even an inference about the view that should be protected under the [O]rdinance and
how granting the variance would be injurious to the public.” Id. at 24.
(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. However, the
zoning ordinance may establish a stricter standard than the
“practical difficulties” standard prescribed by this subdivision.
7
With respect to whether the use and value of the area adjacent to the property would
be affected in a substantially adverse manner, the court found that professional land surveyor
Thate testified that the seawall would not affect the surrounding properties in any way
regarding the view or property values, appraiser Alan Landing stated that property values of
lots adjacent to Caddyshack’s property would not be adversely affected, and Parrett testified
that the seawall “may actually help neighboring properties from the storms and it would not
be in any way adverse to neighboring properties.” Id. at 25. The court found that the BZA’s
finding that the opinion of professional land appraiser Landing was lacking a “reasonable
study,” was not founded in fact, evidence, or sound reasoning, that the BZA did not explain
what a reasonable study “would look like or what Landing’s evaluation should have been,”
and that the BZA’s “unexplained rejection of an expert witness’s testimony while ignoring all
other evidence that corroborates the expert’s opinion is erroneous.” Id. at 25. The court
found there was significant evidence in the record that the seawall does not substantially
affect the use and value of adjacent properties. The court also found that there was no
evidence “that any dwelling, accessory use building or structures’s view is blocked, or the
use and value of such property has been substantially affected,” that “[t]here was other
evidence presented by professionals that would prove that the adjacent properties would not
be adversely affected,” and that “[b]ecause the BZA makes this general denial of an expert’s
opinion and fails to address other expert testimony, the findings of the BZA on this issue is
not supported by evidence.” Id. at 27.
Finally, the court addressed the practical difficulties arising from strict application of
the Ordinance and, in doing so, examined whether there was significant economic injury,
8
whether the injury was self-created, and whether feasible alternatives were available. With
respect to economic injury, the court acknowledged Caddyshack’s claims that there could be
potential storm damage to the property and there would be significant costs associated with
removing the seawall. The court found that “[t]here is not enough evidence to support that
complying with the [O]rdinance would result in significant economic injury,” that
“[p]otential damage is not enough to show that there will be significant economic injury,”
and that “[t]his point goes further to accentuate that feasible alternatives have not been
explored.” Id. at 29. The court found “[t]here is no evidence showing that the seawall could
not be built in compliance with the [] Ordinance,” that there was “an existing seawall built at
103.0 ft.,” and that it could not conclude “that the findings of the BZA were clearly
erroneous on this point.” Id.As to whether the injury was self-created, the court found that Caddyshack purchased
the land in question years ago and that it is responsible for knowing and abiding by local
zoning ordinances. The court acknowledged Caddyshack’s claim that there would be
significant costs involved in removing the seawall as it currently exists, but found that “[t]he
additional cost associated with removing the seawall is not a significant economic injury
associated with whether the variance should be granted” and that, “[e]ven if there was an
economic injury sustained by [Caddyshack] in removing the seawall, it would be to a large
extent self-imposed as the seawall was built in violation of the [] Ordinance setback
requirement.” Id. at 30. Finally, with respect to whether there are feasible alternatives
available, the court found that, “[w]hile Caddyshack offered uncontroverted evidence that the
seawall was built to protect the home from storm damage, there is no evidence to support
9
why the seawall had to be built at that location and that there were no other feasible
alternatives.” Id. at 31. The court further found:
The standard of review of this Court is limited. While the evidence to support
a conclusion by the BZA may be minimal, this Court cannot reweigh the
evidence. The BZA concluded that there was no evidence supporting that the
current location of the seawall was the only place that would work and that
there are no feasible alternatives. A reasonable person could conclude that
there is enough evidence in the record to support this finding. As a result, it
must be concluded there is substantial evidence to support the finding that
Caddyshack has not met its burden here, and there is no clear error in the
findings of the BZA as to the reasoning regarding the practical difficulties in
strict adherence to the zoning ordinance.
Id. The court found that “[t]he practical difficulties portion of the analysis is where
Caddyshack fails to meet the burden and the alternative placement of the seawall was not
addressed.” Id. at 31-32. The court concluded that, “[w]ithout reweighing the evidence
presented, this Court must conclude that the [BZA] had sufficient evidence to find that the
denial of the variance would not result in practical difficulties” and that, “[w]hile the third
factor is just one of the three statutory considerations, only one of the factors outlined above
must be supported to uphold the decision of the BZA.” Id. at 34. The court concluded that
the decision of the BZA was not arbitrary or capricious or unsupported by the evidence
“when it found that strict application of the . . . [O]rdinance would not result in practical
difficulties in the use of property for which the variance is sought.” Id. Caddyshack filed a
motion to correct errors, and, after a hearing, the trial court denied the motion.
DISCUSSION
The issue is whether the trial court erred in affirming the decision of the BZA that the
seawall constructed on Caddyshack’s property is in violation of the Ordinance and must be
10
removed. Caddyshack contends the court erred in finding that it will not suffer practical
difficulties in protecting its property if the 106.6-foot setback requirement in the Ordinance is
imposed and that the practical difficulties include an inability to protect its deck, pool, and
home. In support of its position, Caddyshack argues the evidence demonstrated that waves
came very close to the outer wall of its property during a storm in December 2010, that
pictures from the storm showed damage to the home’s drainage system and an extreme loss
of sand, that the original septic system was located beyond the 106.6-foot line, that
photographs of the construction of the seawall demonstrate that the construction involves
significant trenching which can threaten the integrity of the deck or pool unless construction
is separated by significant distance, that a deck could extend to the 123.4-foot mark and be
nine feet higher than the seawall under the Ordinance, and, if built, such a deck would need
to be protected from the sand erosion problems demonstrated by the December 2010 storm,
that a substantial number of Long Beach residents along the Lake Michigan shore enjoy the
right to protect their property by having their seawalls beyond 106.6 feet, and that the BZA
had previously granted a variance from the Ordinance to another property owner.
Caddyshack further argues that its economic injury includes the cost of constructing the
seawall and the future cost of removing the seawall if it is required to conform to the setback
requirement. Caddyshack maintains that there was no testimony concerning a buried seawall
and that a review of the survey exhibits demonstrates that the buried seawall offers no
protection for the deck or to check erosion of the yard. Caddyshack also argues that the
Ordinance does not apply to its seawall because there are vacant lots on either side of its
11
property and the wall is akin to a fence, that enforcement of the Ordinance constituted an
impermissible taking, and that the BZA should be estopped from enforcing the Ordinance.
The BZA maintains that its decision should be affirmed. It argues that Caddyshack
did not prove that significant economic injury would result from its compliance with the
Ordinance, that any injury would be largely self-created by Caddyshack, and that Caddyshack
did not provide any evidence to support why the seawall had to be built beyond the limits in
the Ordinance. The BZA further argues that the Ordinance applies to the seawall as the wall
is a structure and not a fence and the properties adjacent to the vacant lots could be affected
by the obstruction of a view of the lake, that the BZA should not be estopped from denying
the variance, and that there has been no taking of Caddyshack’s property.
A trial court and an appellate court both review the decision of a zoning board with
the same standard of review. Wastewater One, LLC v. Floyd Cnty. Bd. of Zoning Appeals,
947 N.E.2d 1040, 1045 (Ind. Ct. App. 2011) (citing St. Charles Tower, Inc. v. Bd. of Zoning
Appeals of Evansville-Vanderburgh Cnty., 873 N.E.2d 598, 600 (Ind. 2007)), trans. denied.
A proceeding before a trial court or an appellate court is not a trial de novo; neither court may
substitute its own judgment for or reweigh the evidentiary findings of an administrative
agency. Id. “In the context of zoning adjudications, we will set aside specific findings only
if they are clearly erroneous, meaning the record lacks any facts or reasonable inferences
supporting them.” Network Towers, LLC v. Bd. of Zoning Appeals of LaPorte Cnty., Ind.,
770 N.E.2d 837, 844 (Ind. Ct. App. 2002) (internal quotation marks and brackets omitted). A
court may provide relief only if it determines that the person seeking relief has been
prejudiced by the BZA’s action that is (1) arbitrary, capricious, an abuse of discretion, or
12
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. Ind. Code § 4-21.5-5-14(d); Wastewater One, 947 N.E.2d at 1045 (noting a zoning
board is “an administrative agency with expertise in zoning matters” and that the scope of a
court’s review is governed by Ind. Code § 4-21.5-5-14); see also Ind. Code § 36-7-4-1614(eff. Jul. 1, 2011) (same substantive provisions related to judicial review of zoning decisions
made by a board of zoning appeals). The burden of demonstrating the invalidity of the
BZA’s decision is on Caddyshack as the party to the judicial review proceeding asserting
invalidity. Ind. Code § 4-21.5-5-14(a); Ind. Code § 36-7-4-1614(a).
Section 154.060 of the Ordinance, entitled View Protection Standards, provides in
part:
(B) It is the intent of these standards to protect the view of Moon
Valley, the Long Beach Golf Course and any water body from the principal
permitted building (such as residence or accessory use, building or structure).
(1) No dwelling or accessory use, building or structure
located on a zoning lot in which the property line abuts or, if not
abutting, is adjacent to a non-buildable lot, parcel or tract of
land, that abuts Moon Valley, the Long Beach Golf Course or
any water body shall block the view of any other dwelling,
accessory use building or structure located on an adjacent
zoning lot in which the property line abuts or, if not abutting, is
adjacent to a non-buildable lot, parcel or tract of land, that abuts
Moon Valley, the Long Beach Golf Course or any water body.
(2) The waterfront setback from the shoreline upon
which the dwelling accessory use, building or structure, shall be
built on a zoning lot that abuts or, if not abutting, is adjacent to a
non-buildable lot, parcel or tract of land, that abuts Lake
Michigan shall be a line measured from the zoning lot line
13
abutting the public right-of-way known as Lake Shore Drive
perpendicular to said zoning lot line, a distance of 106.60 feet.
No dwelling, accessory use, building or structure shall be
located any closer to Lake Michigan than 106.60 feet from the
zoning lot line abutting the public right-of-way known as Lake
Shore Drive.
(3) Notwithstanding any language contained in this
section nor in any other section or provision of this chapter there
may be added adjacent to the dwelling, building or structure to
be built on a zoning lot that abuts or, if not abutting, is adjacent
to a non-buildable lot, parcel or tract of land, that abuts Lake
Michigan, a deck which may extend no further than a line
measured from the zoning lot line abutting the public right-of-
way known as Lake Shore Drive perpendicular to said zoning lot
line a distance of 123.40 feet. Any such deck, or that portion of
a deck which extends beyond a line measured from the zoning
lot line abutting the public right-of-way known as Lake Shore
Drive perpendicular to said zoning lot line a distance of 106.60
feet, shall be subject to the following:
(a) All decks must either be ground
level or elevated no higher than the elevation of
the first story floor. The term [“]first story[”]
shall be defined as that level of living space of a
structure, the floor of which has as its elevation,
the height closest to the elevation of the center
line of the public right-of-way known as Lake
Shore Drive measured immediately adjacent to
the building lot.
(b) Notwithstanding division (B)(3)(a)
hereinabove, a deck shall be allowed to be
constructed at an elevation equal to, but no higher
than, the elevation of an existing first story deck
on an adjacent zoning lot.
(c) No decks shall be allowed to be
constructed or attached to a structure at a height
equal to or greater than the second story floor.
The term [“]second story[”] shall be defined as
that level of living space of a structure, the floor
of which has an elevation greater than the
14
elevation of its first story floor as defined in
division (B)(3)(a) hereinabove.
We first address the assertion by Caddyshack that the Ordinance does not apply to its
property or seawall. The evidence does not show that the seawall in this case is more akin to
a fence or does 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. The record includes photographs and testimony regarding the seawall, the
construction of the seawall which included earth anchors and driving steel sheet piles down
into the clay layer of the ground, and the extensive nature of the work to remove the seawall
and the estimated cost of the removal. In addition, while there may be no buildings on the
parcels immediately adjacent to Caddyshack’s property,5 we cannot say the Ordinance by its
terms or the 106.6-foot setback requirement in Section 154.060 is inapplicable to
Caddyshack’s property on this basis. By its terms, the requirements of Paragraph (B)(2)
apply to properties abutting Lake Michigan. In light of the language of Section 154.060 of
the Ordinance, the fact that the seawall on Caddyshack’s property may not actually block the
view of another dwelling or structure in violation of Paragraph (1) of Section 154.060, a
determination which it appears the BZA did not rely upon in addressing the application of the
Ordinance,6 does not mean that Section 154.060 of the Ordinance, and Paragraph (B)(2) in
particular, is not applicable to the property.
5
The trial court in ruling on Caddyshack’s motion to correct errors found that there are lots to the east
and west of the property that are vacant. The survey in the record indicates the lot to the west is approximately
thirty feet in width and the lot to the right is a public access lot.
6
The findings of the BZA related to the practical difficulties in the use of the property if the 106.6-foot
setback requirement in the Ordinance was to be applied.
15
We next turn to whether the decision of the BZA denying Caddyshack’s request for a
variance was supported by the evidence. Ind. Code § 36-7-4-918.5(a) provides:
A board of zoning appeals shall approve or deny variances from the
development standards (such as height, bulk, or area) of the zoning ordinance.
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. However, the zoning ordinance may establish a
stricter standard than the “practical difficulties” standard
prescribed by this subdivision.
The evidence before the BZA, as determined by the trial court and not challenged by
the BZA on appeal, did not support the BZA’s findings under subsections (1) and (2) of Ind.
Code § 36-7-4-918.5. Thus, we address the court’s finding under subsection (3) of Ind. Code
§ 36-7-4-918.5 that the denial of the requested variance would not result in practical
difficulties in the use of Caddyshack’s property. We have articulated several factors for a
reviewing court to consider in determining whether compliance with a zoning 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) (citing Metro. Bd.
of Zoning Appeals v. McDonald’s Corp., 481 N.E.2d 141, 146 (Ind. Ct. App. 1985) (citations
16
omitted), clarified on other grounds on reh’g, 489 N.E.2d 143, trans. denied), trans. denied.
See also Town of Munster Bd. of Zoning Appeals v. Abrinko, 905 N.E.2d 488, 492 (Ind. Ct.
App. 2009) (noting the factor of “whether any feasible alternative is available, within the
terms of the ordinance, which achieve the same goals of the landowner”). These factors are
not exclusive. See Edward Rose, 907 N.E.2d at 605.
With respect to the factor of whether significant economic injury will result if the
Ordinance is enforced, we recognize that it is not possible to predict with certainty the
damage to improvements on the property which may occur if the seawall were not installed
and the cost associated with repairing such damage. However, this is the case to some degree
with respect to many if not most preventative measures such as the construction of seawalls
and of course does not mean that all variance requests for such structures may or must be
denied on this basis. In this case, Caddyshack presented testimony before the BZA regarding
the damage to its property as a result of the December 2010 storm and photographs which
were taken within a couple of days after the storm. One of the owners of Caddyshack
testified that, in investigating the storm, he “had seen that the waves came up very close to
[the] outer wall of [the] property.”7 Appellant’s Appendix at 212. McCormick testified that
the storm “sheared the property” and “created a cliff . . . from the existing grade there, about
five, six feet.” Id. at 225. He testified that “[t]he cliff also sheared so that there was some
drainage pipes for the guttering and the pool deck system; there was a couple six-inch pipes
that were exposed.” Id. McCormick referenced the photographs and stated “it shows . . .
7
This reference to the outer wall may refer to the buried seawall or the edge of the pool or other
improvements.
17
there’s two drain tiles for the gutters on the house, and for the pool deck drains.” Id. at 225-
226. He further testified that the owners had a pool, patio systems, and a very expensive
home that they wanted to protect. The trial court, in assessing the feasible alternatives factor
discussed below, found that “Caddyshack offered uncontroverted evidence that the seawall
was built to protect the home from storm damage . . . .” Id. at 31. The damage caused by the
storm prompted Caddyshack to have McCormick install the seawall at issue, and the distance
between the edge of the pool and the 106.6-foot setback line is relatively short.8 The
evidence above and in the record shows that the factor of whether significant economic
injury will result if the setback requirement is enforced weighs in favor of a finding that
compliance with the setback requirement will result in practical difficulties in the use of the
property.
In addition, we recognize that Caddyshack is charged with knowledge of the
applicable setback requirements and that Caddyshack and McCormick did not seek and
obtain a variance from the BZA to the setback requirements prior to installing the seawall.
However, prior to the issuance of the building permit and at the request of Clerk-Treasurer
Heywood, McCormick identified on a survey the proposed location of the seawall
Caddyshack wished to install, and the building permit was then issued. During construction,
Building Inspector Owens visited the site several times and, while he discussed the height of
the piles at one point, he did not at any time raise the issue of the location of the seawall with
8 As noted below, the survey shows a buried seawall located very near the outside edge of the pool,
and the buried seawall appears to be approximately three or three and one-half feet within the 106.6-foot
setback line.
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McCormick. McCormick testified that Heywood or Owens had signed off on many building
permits for the Town. The factor of whether any injury was self-created does not weigh
heavily in favor of a finding that compliance with the setback requirement will or will not
result in practical difficulties in the use of the property.
We next consider the factor of whether any feasible alternative was available, within
the terms of the 106.6-foot setback, which achieved the same goals of the landowner. The
BZA stated there was no showing that a seawall could not be built within 106.6 feet of Lake
Shore Drive. The trial court similarly found that “there is no evidence to support why the
seawall had to be built at that location and that there were no other feasible alternatives.” Id.
at 31. The survey before the BZA shows the 106.6-foot line, the location of the constructed
seawall beyond the 106.6-foot line by 36.6 feet at the western boundary and 36.4 feet on the
eastern boundary of the property, and the location of a buried seawall near a line marked by a
set iron rod at 103.0 feet from Lake Shore Drive along the eastern boundary of the property.
On the survey, the line representing the buried seawall does not extend all the way to the
eastern boundary of the property, which appears to be due to an “Existing Septic System.”9
See id. at 173. The survey shows that the buried seawall is located very near to the outside
edge of the pool on the property. Caddyshack also presented photographs and testimony
9 A “Proposed Pump Tank” is shown on the survey within the 106.6-foot setback. Appellant’s
Appendix at 173. The record includes a letter dated May 27, 2011, from the LaPorte County Health
Department to Caddyshack stating that the on-site septic system installed in 2008 was not installed in the
approved location and that it must be properly abandoned and a new system installed in the area that was
originally approved. Also, Paragraph (B)(3) of Section 154.060 of the Ordinance permits decks to extend to
123.4 feet from Lake Shore Drive. We do not consider the location of the “existing septic system,” shown on
the survey as located beyond the 106.6-foot setback requirement, or the separate setback requirement
applicable to decks in evaluating whether there are feasible alternatives for the seawall which comply with the
106.6-foot setback requirement.
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regarding the installation of the seawall, including McCormick’s testimony that he drove
approximately twenty-five sheets “and toe them into the clay layer, which is about 10, 15 feet
below the grade of the lake right now . . . around the high water mark level” and that he
drove sheet pile of different lengths ranging from approximately twenty to twenty-five feet.
Id. at 226. As noted above, the court found the seawall was built to protect the home from
storm damage. 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. The factor of whether there were feasible alternatives which would have
complied with the setback requirement which achieved the same goals of the landowner
weighs in favor of a finding that compliance with the setback requirement will result in
practical difficulties in the use of the property.
In addition, Caddyshack presented evidence of the work to remove the seawall and
estimates of the cost for removal of $247,575 and $295,125. The scope of work for the
estimates provides in part: “Will cut off cap and water. Will extract sheetpiling if possible.
Will dig out soil anchors and remove drain tile. If sheetpiling does not come out with
extractor, then the sheetpiling will have to be dug out. Dewatering will be required to pump
water out of hole to cut sheets apart.” Id. at 187. Subcontractor Parrett testified that it would
be “almost impossible to take [the seawall] out,” that he would “have to do dewatering to get
down far enough to get to extract and cut these sheets off, if [he could not] get them all the
way out,” and that “then when [they did] get this out, it’s going to be a tangled mess of metal
that [they would] have to transport down the beach, up through the access, and dispose of it.”
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Id. at 244-245. McCormick testified that “[s]oil anchors are rods that are drilled at about a
30-degree angle from the sheet piling into the earth, so if water gets behind it, it won’t pull
the sheet pile back,” that “[t]hey’re about 15, 20 feet, at least, long,” that “they’re every four
feet in the wall,” and that “we have about 80 feet of seawall.” Id. at 237. He also testified
that a dewatering wall would need to be constructed along Lake Michigan and diesel-driven
pumps would be used to pump the water out. The evidence establishes that the cost
associated with removal of the seawall would be substantial. These substantial removal or
relocation costs, in light of our discussion above regarding the factor of whether any injury
was self-created and observing in part that the Town did not object to the location of the
seawall before or during its construction, provides an additional consideration which favors
the conclusion that compliance with the setback requirement will result in practical
difficulties in the use of the property.
Based upon the evidence before the BZA, we conclude 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). Further, as noted above, we do not
disturb the findings of the trial court with respect to subsections (1) and (2) of Ind. Code §
36-7-4-918.5. Accordingly, we reverse the order of the trial court which had affirmed the
denial of the variance and remand.10
10
Because we reverse based upon the evidence under Ind. Code § 36-7-4-918.5, we need not address
Caddyshack’s estoppel and impermissible taking claims.
21
CONCLUSION
For the foregoing reasons, we reverse the trial court’s order affirming the decision of
the BZA and remand for any necessary proceedings consistent with this opinion.
Reversed and remanded.
MAY, J., and BARNES, J., concur.
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