Snyder v. Kosciusko County Board of Zoning Appeals

774 N.E.2d 550, 2002 Ind. App. LEXIS 1442, 2002 WL 2017037
CourtIndiana Court of Appeals
DecidedSeptember 4, 2002
Docket43A03-0203-CV-88
StatusPublished
Cited by5 cases

This text of 774 N.E.2d 550 (Snyder v. Kosciusko County Board of Zoning Appeals) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Snyder v. Kosciusko County Board of Zoning Appeals, 774 N.E.2d 550, 2002 Ind. App. LEXIS 1442, 2002 WL 2017037 (Ind. Ct. App. 2002).

Opinion

OPINION

ROBB, Judge.

The Kosciusko County Board of Zoning Appeals (the “board”) granted a zoning variance for John and Susann Kellogg to build a second residence on their property with a fifteen-foot setback from the road. Stephen and Susan Snyder, owners of property adjacent to the Kelloggs’ tract, challenged the board’s decision in the Kosciusko Superior Court. After a hearing, the trial court affirmed the decision of the board. The Snyders now appeal the decision of the trial court. We affirm.

Issue

The Snyders raise a single issue for our review, which we restate as whether the board properly granted the Kelloggs’ variance.

Facts and Procedural History

The Kelloggs filed a request for a zoning variance with the board to construct on their lot a second residence with a twenty-five-foot setback from the edge of Lake Wawasee and a fifteen-foot setback from the road. After a hearing, the board granted a variance allowing the construction of a second residence and a fifteen-foot setback from the road, but denied the *552 variance for less than a thirty-five-foot setback from the lake. 1

The Snyders challenged the decision of the board in the trial court. After a hearing, the court affirmed the board’s ruling, stating that there was sufficient evidence of probative value on which the board could have based its decision. This appeal ensued.

Discussion and Decision

I. Standard of Review

In reviewing the decision of a board of zoning appeals, we will not reweigh the evidence nor substitute our judgment for that of the board. Columbus Bd. of Zoning Appeals v. Wetherald, 605 N.E.2d 208, 211 (Ind.Ct.App.1992). We presume the determination of the board, an administrative agency with expertise in zoning matters, is correct. Scott v. Marshall County Bd. of Zoning Appeals, 696 N.E.2d 884, 885 (Ind.Ct.App.1998). Only if the board’s decision is arbitrary, capricious or an abuse of discretion should it be reversed. Id.

To reverse an order of a zoning board which grants a variance, an appellant must show that “the quantum of legitimate evidence was so proportionately meager as to lead to the conviction that the finding and decision of the [b]oard does not rest upon a rational basis.” Boffo v. Boone County Bd. of Zoning Appeals, 421 N.E.2d 1119, 1126-27 (Ind.Ct.App.1981) (quoting Braughton v. Metropolitan Bd. of Zoning Appeals, 146 Ind.App. 652, 257 N.E.2d 839, 841 (1970)).

Under Indiana Code section 36-7-4-918.5, a variance may be approved 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.

Ind.Code § 36-7-4-918.5.

II. The Kelloggs’ Variance

In their brief, the Snyders contend that the Kelloggs were required to prove all three elements of Indiana Code section 36-7-4-918.5 by presenting substantial evidence of probative value supporting each element. When determining whether an administrative decision is supported by substantial evidence, we must determine from the entire record whether the agency’s decision lacks a reasonably sound evidentiary basis. Crooked Creek Conservation & Gun Club v. Hamilton County, 677 N.E.2d 544, 548^9 (Ind.Ct.App.1997), trans. denied. Evidence is considered substantial if it is more than a scintilla and less than a preponderance. Id. at 549. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id.

1. The Second Residence Variance

The trial court found that there was sufficient evidence of probative value in the record upon which the board could *553 have based their decision. Additionally, the trial court found that the board had supported their decisions with written Findings of Fact. We agree.

In considering whether to grant a variance for the Kelloggs to construct a second residence on their property, the board considered drawings of the proposed residence. Additionally, Jack Birch spoke out against the additional residence and was questioned by the board. Appellant’s Appendix at 83-87. Also, it is clear from the record that the board carefully considered the question of the second residence. Id. at 91-95.

During Birch’s comments, he stated:

I don’t think the question is whether or not there should be two residences on the lot, that’s not unusual for lake properties, for lake properties for that area, the question is whether or not it is appropriate to get rid of all the setbacks!,] reduce them significantly to allow one house to remain and then build another one that’s additionally in violation ...

Appellant’s Appendix at 84. The Kelloggs also presented evidence that several other properties in the neighborhood had two residences on their property, some of which had been built since the zoning ordinance had been enacted. Although not dispositive of the issue, the fact that the board has granted such variances before suggests the decision is not arbitrary.

After the hearing, the board considered whether the second residence would be injurious to the public health, morals or general welfare and decided that it would not. Appellant’s Appendix at 102-07. Additionally, the board considered the impact on the property values of the other neighbors. Id. Finally, the board determined that strict compliance with the zoning ordinance would result in practical difficulties for the Kelloggs. Id.

Therefore, there is evidence in the record to show that the board’s decision was neither arbitrary, capricious nor an abuse of its discretion.

2. The Setback Variance

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Bluebook (online)
774 N.E.2d 550, 2002 Ind. App. LEXIS 1442, 2002 WL 2017037, Counsel Stack Legal Research, https://law.counselstack.com/opinion/snyder-v-kosciusko-county-board-of-zoning-appeals-indctapp-2002.