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Court erred in affirming decision new seawall must be removed

December 4, 2014

The Indiana Court of Appeals has reversed the portion of a trial court’s order that affirmed the decision by a board of zoning appeals denying a company’s request for a variance which allowed its newly completed seawall to remain intact. The judges found Caddyshack Looper LLC demonstrated that strict application of the setback requirement will result in practical difficulties.

After a severe storm in December 2010 sheared a portion of Caddyshack’s property facing Lake Michigan and created several cliffs, Caddyshack decided to construct a seawall. The clerk-treasurer of Long Beach in Porter County issued a building permit to Caddyshack. During construction, a Long Beach inspector never brought up that the seawall was located further than 106.6 feet from the zoning lot line. It wasn’t until the seawall was complete that the building commissioner for the town notified Caddyshack that the construction violated a town ordinance.

Caddyshack then filed a petition for a variance to extend the seawall beyond the 106.6 foot setback, but the BZA denied the petition. It found the use and value of the area adjacent to the property would be adversely affected, the contractor should have known it was constructing the seawall in violation of the ordinance, and that the seawall could have been built within the setback.

Caddyshack asked for judicial review, where the judge found no evidence that Caddyshack should have known the building permit was invalid as the BZA held. The judge also found there was no evidence that adjacent properties’ values would be affected by the seawall. But the judge did find that the BZA had sufficient evidence to find that the denial of the variance would not result in practical difficulties.

It was on this point that the COA reversed in Caddyshack Looper, LLC v. Long Beach Advisory Board of Zoning Appeals, 46A03-1404-PL-110.

“Based upon the evidence before the BZA, we conclude that Caddyshack demonstrated that strict application of the setback requirement will result in practical difficulties in the use of the property under Ind. Code § 36-7-4-918.5(3),” Judge Elaine Brown wrote. “Further … we do not disturb the findings of the trial court with respect to subsections (1) and (2) of Ind. Code § 36-7-4-918.5.”

The evidence shows substantial removal or relocation costs for Caddyshack, ranging from $245,000 to nearly $300,000. The judges noted that Caddyshack did not attempt to get a variance before construction, but they were issued a permit by the clerk-treasurer and the building inspector never raised the issue of the setback during most of construction. There were also no feasible alternatives for the location of the seawall, the judges found.

The COA remanded for any necessary proceedings consistent with the opinion.

 

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