APPEAL FROM THE LAPORTE SUPERIOR COURT. The Honorable Richard R. Stalbrink, Jr., Judge. Cause No. 46D02-1111-PL-139.
ATTORNEY FOR APPELLANT: STEVEN A. HALE, Michigan City, Indiana.
ATTORNEY FOR APPELLEE: CAREN L. POLLACK, Pollack Law Firm, P.C., Indianapolis, Indiana.
BROWN, Judge. MAY, J., and BARNES, J., concur.
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. 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.
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" ), 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 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. 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 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 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 ...