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:: Zoning in Indianapolis is broken

Ask the BZA and ye shall receive

By David Hoppe

If you've ever driven through an Indianapolis neighborhood and wondered how something that doesn't seem to belong got built there, or why someone was able to put an addition on a structure that looks downright weird, Pat Andrews can explain it to you.

Andrews is the Vice President of the Marion County Alliance of Neighborhood Associations. This means she spends a lot of time attending meetings of Marion County's three Boards of Zoning Appeals. This is not what you would call glamorous work. But it's the way a person learns about how things happen in Indianapolis.

During these meetings, Andrews noticed something. It appeared that when people in Marion County petitioned the BZA to get a variance from development standards or zoning regulations, the BZA almost always gave them permission to go ahead and do whatever they wanted.

In other words, the BZA gave them permission to break laws the rest of us have to obey.

Andrews reviewed all the decisions made by the three zoning boards for the year 2009. The BZA held actual hearings for 144 variance petitions that year. Of these, the BZA approved 122. Only 20 were denied. That's a denial rate of just 14 percent. Two received indecisive votes.

Board I denied 15 percent of variance requests; Board II denied 18 percent; and if your petition went before Board III, you were made in the shade: it denied just seven percent of the variance requests it heard.

These findings became especially striking when Davis compared them to recommendations made by the professional Planning Staff of the Metropolitan Development Commission on the same cases. Before BZA members, the majority of whom are appointed by the Mayor's office and the City-County Council, cast their votes on individual requests, the Planning Staff provides them with recommendations based on how a given request lines up with guidelines found in the Indiana Code for variances and the city's comprehensive plan.

In a large majority of cases, the BZA members ignored the Planning Staff saying, in effect, "We don't need your stinkin' plan."

That's because the Planning Staff recommended the board deny 99 of those144 variance requests. That's a 69 percent denial rate as opposed to the 14 percent that the BZA actually denied.

"You know how people love to complain about activist jurists? We're talking about the laws of Indianapolis and these guys are throwing them out the window, one parcel at a time," Andrews told me.

State law requires that, in order to grant a variance, a petitioner's request must satisfy certain requirements. It must be shown that approval will not be injurious to the public health, safety, morals, and general welfare of the community. Use and value of adjacent property must not be adversely affected. The need for a variance must arise from some "condition peculiar to the property involved."

But, time and again, Andrews has observed that variances are awarded regardless of whether they meet these criteria. In one case, Andrews says, a project in a flood plain was approved even though it was in clear violation of Federal FEMA guidelines and risked disqualifying an entire neighborhood from FEMA support in the event a flood wiped people out. "These decisions are certainly not being community driven," she says.

Andrews points out conflicts over zoning cut to the heart of a basic tension in our society. Americans have always been torn between the rights of individuals to do whatever they please with their property versus the interests of the community - whether that's defined as a neighborhood or the city at large.

You can add to this the libertarian hostility to laws of any kind that seek to regulate people's behavior. Building codes requiring compliance with certain construction standards are a good example. From one perspective these codes add hassle and expense to projects. But they also ensure that buildings aren't as likely to be blown away by tornadoes, or collapse in earthquakes -- as they did in code-free Haiti.

Andrews argues that code compliance, zoning and variances are all part of the same system. Every time a variance is granted, she says, code enforcement becomes more difficult because every variance represents an exception to established law.

Given that the State has ordinances on the books regarding land use and development standards, and that the city has a comprehensive plan meant to serve as a guideline for its own growth and development, Andrews has reason to wonder why the granting of variances isn't harder than it is. Shouldn't granting a variance be the exception and not the rule?

If the BZA was trying to deliberately sabotage community zoning and development standards, its track record wouldn't look much different than its tally for 2009. City leaders say they understand the importance of planning and design in making Indianapolis competitive with other cities. Apparently the people they appoint to our zoning boards haven't gotten the message.

Indianapolis zoning was broken in 2009. We'll see if it's any better in 2010.