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Pflugh v. Indianapolis Historic Preservation Commission

Court of Appeals of Indiana

August 1, 2018

David Pflugh, Appellant-Petitioner,
v.
Indianapolis Historic Preservation Commission sitting as the Indianapolis Historic Preservation Commission and as the Board of Zoning Appeals Division of Marion County, Indiana, Neighborhood/ Downtown Zoning Assistance, Inc., 855 North East Street, LLC, and Paul Vezolles, Appellees-Respondents.

          Appeal from the Marion Superior Court The Honorable Heather A. Welch, Judge Trial Court Cause No. 49D01-1706-PL-22291

          Appellant Pro Se David L. Pflugh Indianapolis, Indiana

          Attorney for Appellees 855 North East Street, LLC and Paul Vezolles: Jeffrey D. Stemerick Taft Stettinius & Hollister LLP Indianapolis, Indiana

          Attorney for Appellee Indianapolis Historic Preservation Commission: Thomas J.O. Moore Office of Corporation Counsel Indianapolis, Indiana

          Friedlander, Senior Judge.

         [¶1] Paul Vezolles is a member of 855 North East Street, LLC (collectively "Vezolles"), which owns property at that address in Indianapolis ("the Site"). Prior to the Indianapolis Historical Preservation Commission ("IHPC") proceedings at issue, the Site was zoned SU-7, which only allows charitable, philanthropic, and not-for-profit use. The Site sits between north East Street and Park Avenue just south of 9th Street and is in the Chatham-Arch and Massachusetts Avenue Historic Preservation District. David Pflugh is an attorney who lives at 847 North Park Avenue, directly across Park Avenue from the northeast corner of the Site.

         [¶2] The Site currently is occupied by a vacant nursery school building constructed in the 1970s and a single house at 812 North Park Avenue that was built in 1894. Across Park Avenue to the east are historic homes, across 9th Street to the north is the Chatham Center (which includes apartments and retail space, including a pet groomer, a hair salon, and a doctor's office), and across East Street to the west are the fifteen-story Lugar Towers apartments. The Chatham-Arch and Massachusetts Avenue Historic Area Preservation Plan ("the CAMA Plan"), adopted in 2006, designates the nursery school building as "Non-Contributing Non-Historic[.]" Appellees' App. Vol. 2, p. 142. The CAMA Plan has a site-specific recommendation for the Site that calls for D-8 zoning[1] with "higher density residential, such as town houses, along East St." and "lower density, single-family and two-family houses, along Park [Ave.]." Id. at 167.

         [¶3] On September 1, 2016, Vezolles petitioned the IHPC to rezone the Site from SU-7 to what was ultimately changed to D-8 to allow for a new development called Chatham Park (the "Project") to replace the vacant nursery school building. Vezolles proposed building seven single-family homes and two duplexes on the east side of the Site and two condominium buildings with a total of fifty-five units on the west side. Following is a site plan which provides an overview of the area and depicts how the Site would look once the Project is completed:

         (Image Omitted)

         [¶4] The IHPC held four public hearings on December 7, 2016; February 1, 2017; April 5, 2017; and May 3, 2017, at which concerned citizens, including Pflugh, testified. On May 3, 2017, the IHPC entered written findings approving the Project. Specifically, the IHPC rezoned the entire Site to D-8, granted a use variance permitting a small commercial use in one corner of the Site, granted four development-standard variances, and issued a certificate of appropriateness ("COA"). The retail space is directly across 9th Street from similar retail space in Chatham Center and is 2400 square feet, and the use variance specifically excludes twenty-nine categories of commercial use that could be detrimental to the neighborhood. The zoning commitments include other restrictions, including hours restrictions and noise restrictions.

         [¶5] In addition to the use variance for retail, the IHPC granted Vezolles four development-standard variances, allowing for less open space at the Site and reducing the livability-space ratio and floor-area ratio for the buildings to be built along East Street. Both variances are typically needed for residential development in downtown urban areas. Without the livability-ratio variance, the Site could not be developed with higher-density residential structures along East Street as called for in the CAMA Plan, and high-density residential development would likely be required along Park Avenue (directly across from Pflugh's house) where the CAMA Plan calls for single- and two-family dwellings.

         [¶6] On June 2, 2017, Pflugh petitioned for judicial review of the grant of variances and the COA. Pflugh challenged the use variance, the development standard variance for less open space than required, the development standard variance for livability ratio, and the COA. On January 22, 2018, the trial court denied Pflugh's petition. The trial court concluded that Pflugh lacked standing to seek judicial review because Pflugh is not aggrieved by the IHPC's decision. The trial court also concluded that even if Pflugh had standing, the IHPC's decision was not "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; contrary to constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; without observance of procedure required by law; or unsupported by substantial evidence." Appellees' App. Vol. 2, p. 30.

         1. Whether Pflugh Has Standing to Challenge the IHPC's Decision

         [¶7] A trial court's decision dismissing a case for lack of standing is reviewed de novo. Reed v. Plan Comm'n of Town of Munster, 810 N.E.2d 1126 (Ind.Ct.App. 2004), trans denied. "Standing is a judicial doctrine that focuses on whether the complaining party is the proper party to invoke the trial court's jurisdiction." Liberty Landowners Assoc., Inc. v. Porter Cty. Comm'rs, 913 N.E.2d 1245, 1250 (Ind.Ct.App. 2009), trans. denied. Standing must thus be analyzed before ...


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