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Attorney homeowner loses appeal in historic-area zoning case

August 1, 2018

A downtown Indianapolis homeowner and attorney lacked standing to petition for judicial review of variances granted to build condominiums, duplexes and a retail space across the street from his home, the Indiana Court of Appeals ruled.

David Pflugh is an attorney and local resident who lives across the street from the site of the proposed Chatham Park development at 855 N. East St. He sued the city entities that approved zoning for the project.</p>

Paul Vezolles is a member of 855 North East Street, LLC, which owns property at that address in Indianapolis. The land, which sits in the Chatham-Arch and Massachusetts Avenue Historic Preservation District, was previously zoned SU-7. Only charitable, philanthropic, and not-for-profit use is permitted. The site is occupied by a vacant nursery school building and a single house built in 1894.

In September 2016, Vezolles petitioned the Indianapolis Historic Preservation Commission to rezone the site from SU-7 to what was ultimately changed to D-8 to allow for a new development called Chatham Park to replace the nursery school building. He proposed building seven single-family homes and two duplexes on the east side of the Site and two condominium buildings with a total of 55 units on the west side.

The IHPC approved the project in 2017, granting one small commercial use and four development-standard variances, as well as a certificate of appropriateness.

Pflugh petitioned for judicial review of the grant of variances and the certificate of appropriateness. However, the Marion Superior Court denied his petition, concluding he lacked standing to seek judicial review because he is not aggrieved by the decision.

The appellate court found that just because Pflugh’s property adjoins the site does not automatically make Pflugh “aggrieved.” It also found that he failed to allege or establish the necessary pecuniary or special injury to grant him standing to challenge IHPC’s rezoning decision on appeal.

It also found that while Pflugh contended he had public standing to challenge the IHPC’s decision, he never raised the public standing argument in the trial court, therefore waiving it for appellate review.

However, the appellate court noted that appellate attorney’s fees would not be awarded to the IHPC because it failed to establish that Pflugh’s entire appeal is “so frivolous or in bad faith” as to warrant it.

“Despite ultimately deciding that Pflugh lacks standing to challenge the IHPC’s rezoning decision,” Senior Judge Ezra Friedlander wrote for the court, “we acknowledge that he made at least a colorable argument that he would qualify as an ‘aggrieved’ person by living across the street from the site.”

The case is David Pflugh v. Indianapolis Historic Preservation Commission sitting as the Indianapolis Historic Preservation Commission and as the Board of Zoning Appeals Division of Marion County, Indiana, et al., 18A-PL-351.

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