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

Citation: 108 N.E.3d 904Docket: 18A-PL-351

Court: Indiana Court of Appeals; August 1, 2018; Indiana; State Appellate Court

Original Court Document: View Document

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On August 1, 2018, the Indiana Court of Appeals addressed the appeal of David Pflugh against the Indianapolis Historic Preservation Commission (IHPC) and others regarding the rezoning of a property at 855 North East Street, owned by Paul Vezolles. The property was originally zoned SU-7, permitting only charitable and non-profit use, and is located in the Chatham-Arch and Massachusetts Avenue Historic Preservation District. The site currently contains a vacant nursery school built in the 1970s and a historic house from 1894. The area is surrounded by various residential and commercial properties.

Vezolles sought to rezone the site to D-8 to facilitate the development of "Chatham Park," which includes seven single-family homes, two duplexes, and two condominium buildings totaling fifty-five units. The IHPC conducted four public hearings where community members, including Pflugh, expressed their concerns. On May 3, 2017, the IHPC approved the Project, rezoning the site to D-8, granting a variance for a small commercial space, and issuing a certificate of appropriateness. The commercial use is limited to a 2400 square-foot space with specific restrictions on certain commercial activities, operational hours, and noise to mitigate neighborhood impact.

The IHPC granted Vezolles a use variance for retail and four development-standard variances, allowing for reduced open space and altered livability and floor-area ratios for buildings along East Street, facilitating higher-density residential development as outlined in the CAMA Plan. Pflugh petitioned for judicial review of these variances on June 2, 2017, challenging the use variance and the development standard variances. However, on January 22, 2018, the trial court denied his petition, ruling that Pflugh lacked standing to challenge the IHPC's decision, as he was not aggrieved by it. The court also found that even if standing was established, the IHPC's decision was lawful and not arbitrary or capricious. 

The standing to challenge a zoning decision in Indiana requires that the person is either specifically directed by the decision or is aggrieved by it and participated in the board hearing. Although Pflugh attended a hearing and presented evidence, he needed to demonstrate that he experienced a substantial grievance or a denial of rights, which he did not establish. Relevant case law emphasizes that a substantial grievance must affect the petitioner pecuniarily and represent a special injury not common to the community.

Pflugh's assertion that being an adjoining property owner automatically qualifies him as “aggrieved” is incorrect. While adjacent landowners may have standing, proximity alone does not suffice. The Indiana Supreme Court's ruling in Bagnall does not support the claim of automatic aggrieved status; it clarifies that a legal interest exists if the petitioner owns adjacent property, but does not conclude that all adjacent owners are aggrieved. The court emphasized that to be considered aggrieved, one must demonstrate evidence of pecuniary injury or a special injury distinct from that of the community, as established in prior cases.

The trial court specifically found that Pflugh failed to show substantial grievance or pecuniary harm despite his proximity to the site in question. His complaints about increased noise and traffic did not meet the threshold of "special injury" as per precedent, nor did he provide any evidence of harm from the issuance of the Certificate of Appropriateness (COA). Pflugh's arguments were determined to reflect harms common to the community rather than unique to him, resulting in a failure to meet the burden of proof for being aggrieved.

The trial court's findings regarding Pflugh's lack of particular harm are not deemed clearly erroneous, and he does not contest this assertion. Ultimately, Pflugh's complaints do not establish a fiduciary harm or any injury that is not experienced by the broader community.

An adjoining landowner, Pflugh, lacks standing to challenge a zoning board decision as he cannot demonstrate being prejudiced or aggrieved, consistent with the ruling in MacFadyen v. City of Angola. Despite his property’s proximity to the site, Pflugh has not alleged any specific pecuniary or special injury necessary for standing. Furthermore, Pflugh's claim of public standing was not raised in the trial court, leading to its waiver on appeal. The court references Indiana Rule of Appellate Procedure 66(E), which allows for the assessment of damages if an appeal is deemed frivolous or in bad faith, but emphasizes the need for restraint in such awards to avoid deterring legitimate appeals. The court concludes that Pflugh's arguments are not utterly implausible, and thus, the appellees have not justified awarding appellate attorney fees. The judgment is affirmed with concurring opinions from Riley, J., and May, J.