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LLC v. Metropolitan Board of Zoning Appeals Division II

Court of Appeals of Indiana

June 18, 2015

I-465, LLC, Appellant,
Metropolitan Board of Zoning Appeals Division II of Marion County, Indiana, Jeffrey R. Baumgarth and the Myers Y. Cooper Company, Appellee

Appeal from the Marion Superior Court No. 7. The Honorable Michael D. Keele, Judge. Cause No. 49D07-1212-PL-047644.

ATTORNEYS FOR APPELLANT: Libby Y. Goodknight, Marc T. Quigley, Krieg DeVault LLP, Indianapolis, Indiana; Blake P. Holler, Krieg DeVault LLP, Carmel, Indiana.

ATTORNEYS FOR APPELLEES JEFFREY R. BAUMGARTH AND THE MYERS Y. COOPER COMPANY: Brian J. Tuohy, John J. Moore, Doninger Tuohy & Bailey, Indianapolis, Indiana.

Friedlander, Judge. Baker, J., and Najam, J., concur.


Friedlander, Judge.

[¶1] I--465, LLC appeals a decision by the Marion County Metropolitan Board of Zoning Appeals (the BZA) approving a request for a property-use variance by Jeffrey R. Baumgarth and Myers Y. Cooper Co. (collectively referred to as Myers Cooper). I--465 challenges the adequacy of the BZA's findings of fact and whether they support the BZA's determination that Myers Cooper established the elements necessary to justify the variance it sought.

[¶2] We affirm.

[¶3] This is the second time the present dispute has come before this court. The background facts were set out in the previous appeal as follows:

In September 2012 Myers Cooper filed a petition for a variance with the BZA for 4048 West 94th Street in Indianapolis (" the Property" ). In its petition, it requested permission to establish " a domestic canine and feline boarding and day-care facility also providing grooming services with fenced outdoor exercise area for supervised daytime use, operating under the name PetSuites" on the Property. The Property is located in a C--6 zone, which does not allow kennel or dog-boarding services to be established.
At the November 13, 2012 BZA meeting, Raymond Cooper presented Myers Cooper's petition. I--465 LLC, which owns the Hilton Homewood Suites Hotel immediately to the west of the Property, appeared at the hearing to contest the variance petition. Specifically, I--465 LLC was concerned about the noise of the animals that would be staying adjacent to its hotel and believed that its hotel would be substantially and adversely affected if the BZA granted Myers Cooper's proposed variance.
The BZA approved the variance at the November meeting on the condition that animals would be permitted in the outside play area only between 7:00 a.m. and 8:00 p.m.

HRC Hotels, LLC v. Metro. Bd. of Zoning Appeals Div. II of Marion Cnty., 8 N.E.3d 203, 204-05 (Ind.Ct.App. 2014) (internal footnote and citations to the record omitted).

[¶4] As it turned out, only I--465, not its parent company HRC Hotels, appeared or participated in the BZA public hearing. HRC Hotels did not present any evidence at any time opposing the variance. Nor did it submit a written statement to the BZA contesting the variance. Yet, the petition for judicial review of the BZA decision was filed by HRC Hotels, not I--465. Myers Cooper filed a motion to dismiss the petition for judicial review, arguing that HRC Hotels lacked standing. The trial court ultimately granted the motion to dismiss, ruling that it did not have subject matter jurisdiction over the appeal because HRC Hotels lacked standing. HRC Hotels appealed, and this court reversed. We concluded that the standing requirements of Ind. Code Ann. § 36-7-4-1603 (West, Westlaw current with all 2015 First Regular Session of the 119th General Assembly legislation effective through June 28, 2015) are procedural rather than jurisdictional and therefore the trial court did have subject matter jurisdiction. Further, we held that the trial court should allow I--465, a real party in interest, to be substituted as the plaintiff and proceed to the merits of the petition for judicial review.

[¶5] The case was remanded and the trial court conducted a review of the BZA's grant of Myers Cooper's application for a variance. At this hearing, I--465 detailed the nature of its objections to the variance, including among others, the following: 1) Having more than 200 dogs within 45 feet of the hotel next door would present a " serious noise issue" for hotel guests, Appellant's Appendix at 26; and 2) granting the variance would decrease the value of adjacent property because if a person was driving in the area and looking for a hotel " and it's next to a dog boarding facility, and there are dogs out in the yard, you're going to be much more ...

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