Denial of variance for 15 condos could lead to change in ground floor regs for downtown Bloomington

Just east of the courthouse square on Kirkwood Avenue in downtown Bloomington, the empty parcel next to the CVS looks like it will serve as a paid parking lot at least a little while longer.

On Thursday, Bloomington’s board of zoning appeals (BZA) denied a variance requested by owner Randy Lloyd, which would have allowed the construction of a four-story building with 15 owner-occupied condos.

As proposed, 19 percent of the ground floor is designed as commercial space. That’s why the BZA was asked to grant a variance from a requirement in Bloomington’s downtown overlay—that at least 50 percent of the ground floor square footage be designed for non-residential and non-parking uses.

As designed, the building would include about 20 parking spaces on the ground floor, with the garage entrance off the alley that runs north-south between Kirkwood Avenue and 6th Street.

Lloyd asked for the variance based in part on the idea that the proposed building included the minimum number of parking spaces that would be needed to make the owner-occupied condos and retail space economically viable.

The analysis from Strauser Construction, which was included in the BZA’s meeting information packet, indicated the parking had to be constructed on the ground floor, because putting parking on the second floor or in a basement would be impractical.

One outcome of Thursday’s denial could be an upcoming revision to the city’s unified development ordinance (UDO), which might allow for a project like Lloyd’s, without a variance from current 50-percent non-parking, non-residential requirement.

Even though she voted against granting the variance, BZA member Flavia Burrell, who is also a member of the city’s plan commission, indicated she would be pushing for a review by the plan commission of the 50-percent requirement: “I am on the planning commission and I will be bringing this up in our next meeting.”

BZA member Tim Ballard also voted against granting the variance but added, “I would absolutely be at the forefront of a discussion of how to make those policy changes.” Ballard is also a member of the plan commission.

BZA member Jo Throckmorton abstained from both votes taken on Thursday—the motion to grant the variance as well as the motion to deny the variance. It was a close enough call that Throckmorton said, “I’m not gonna vote against it, but I can’t vote for it.”

The case was heard by the BZA at three hearings, in August, September and October.

The fact that the requested variance was put off twice before a final vote reflected the complexity of the issues, as did the tally on the vote taken on Thursday. With just four of its five members present and voting, Throckmorton’s abstention meant that the motion to deny the variance had the minimum three votes required for action by the BZA.

The criteria for granting a variance from requirements of the unified development ordinance are spelled out in Bloomington city code:

(1) The approval will not be injurious to the public health, safety, morals, and general welfare of the community; and
(2) The use and value of the area adjacent to the property included in the development standards variance will not be affected in a substantially adverse manner; and
(3) The strict application of the terms of this UDO will result in practical difficulties in the use of the property; that the practical difficulties are peculiar to the property in question; that the development standards variance will relieve the practical difficulties

Bloomington planning staff agreed that (2) was satisfied, but disagreed with Lloyd about points (1) and (3).

On point (3), the disagreement between Lloyd and staff centered on the question: Can the practical difficulties associated with the owner’s development goals be considered when evaluating the criterion?

Yes, was the answer from Lloyd’s attorney, Christine Bartlett, whose memo to the BZA laid out the legal arguments.

Bartlett’s memo lays out the standards that courts have used to evaluate the practical difficulties criterion: whether there’s a significant economic injury that results from enforcing the zoning; whether the difficulties are self-created or self-imposed; whether any feasible alternative is available, within the terms of the ordinance, which achieve the same goals of the landowner.

For the last point, related to the goals of the landowner, Bartlett’s memo cites a 1985 court of appeals case (Metro. Bd. of Zoning Appeals): “Other considerations in determining the existence of practical difficulties are whether the injury is self-created or self imposed and whether any feasible alternative is available, within the terms of the ordinance, which achieve the same goals of the landowner.”

Bartlett told the BZA at Thursday’s hearing, “It’s not whether any alternatives exist for any development. It has to be a feasible alternative—and it has to be a feasible alternative that achieves the same goals as the landowner wants to achieve.”

She added that the proposed development goals have to be “given deference.”

Lloyd’s development goals are to build owner-occupied condos on the site. In a memo submitted to the BZA, Lloyd describes how owner-occupied condos are a goal for the downtown that is included in Bloomington’s comprehensive plan: “Develop strategies to stabilize and diversify the Downtown residential population by identifying and encouraging missing housing forms in the Downtown area (such as row houses, condominiums, and live/work spaces).”

The idea that parking spaces would be essential for owner-occupied condos was supported by an email message in the BZA’s meeting information packet from Brian Thompson, a real estate agent with FC Tucker. Thompson wrote: “[T]aking the parking away basically kills the project as it stands.”

An analysis from Strauser Construction, the design/build firm on the project, ruled out the option of locating parking underground or on the second floor.

Opposing the idea that owner-occupied condos should be presupposed as part of the evaluation of the standards for granting a variance was Bloomington’s development service manager Jackie Scanlan.

There is no minimum parking requirement for the courthouse square overlay, where the site is located.  That was the basis of Scanlan’s contention that the parcel could be developed in some way with no parking. That lack of a parking minimum for that zoning district is an “intentional” component of the city’s unified development plan, she said.

Scanlan rejected the idea that the landowner’s development goal should be a factor, by describing a hypothetical scenario:

I just own a single family lot. I have a larger family than I did when I moved there. And I want to have a bigger house than my impervious surface coverage allows. If I come to the BZA and say, “Well, my development goal is to have more living space for my family—so in order to meet that development goal, you need to grant this variance.” That is just not how we grant variances.

Supporting Scanlan’s position was city attorney Mike Rouker, who said at Thursday’s hearing that he did not agree with Bartlett’s view that previous court cases pointed to a landowner’s goals as a consideration.

“We don’t agree with Ms. Bartlett, or Mr. Lloyd on that point,” Rouker said. He continued, “If a developer can set the parameters of the developer’s subjectively chosen development goal in a narrow enough way, … the BZA would effectively be cornered into granting every variance that comes before the body.”

A chance for BZA and plan commission members Flavia Burrell and Tim Ballard to float the idea of revisiting the 50-percent non-residential, non-parking requirement will come in about three weeks. Bloomington’s plan commission meets next on Nov. 14.

7 thoughts on “Denial of variance for 15 condos could lead to change in ground floor regs for downtown Bloomington

  1. Two comments:

    1). The same city staff advocated for a much broader package of parking variances for the Centerstone property by the old hospital. Any and all “hardship” in that case was entirely self created. It’s absolutely infuriating when the city has one incredibly lax set of rules for itself and another unbending, very strict set of rules for private owners. (Conveniently, there is no CATs video of that hearing.)

    2). It’s time for a showdown with staff regarding downtown parking. The policy of deliberately sabotaging downtown parking with the belief that it will lead to climate improvements or more bus usage is fantasy. Instead, what staff is inadvertently doing is favoring downtown student housing over owner occupied housing, and pushing adults to live in places where they need to make more/longer car trips. Students can walk to class, and have lifestyles and youth which permit less use of cars. Adults (other than a handful who have student-like lifestyles oriented to campus) need cars. Most jobs aren’t at a desk at Ballentine, etc. all day. People are out and about, have kids, run errands, etc.

    This may come to a head on the College/Walnut “traffic study.” Mark my words: that proposed study isn’t about one way v two way traffic. It’s about how ideologues can eliminate as much downtown parking as possible. These people need to be confronted now or they are going to destroy commerce in this city one BZA hearing and one traffic study at a time.

      1. Had you looked at the plan you would have seen that they were doing both. It was just the depth/SF for the commercial area. Ironically the larger the space the more likely it would be to be a large chain store and have less community character than a small space.

    1. When you say ‘Centerstone’ I’m thinking you mean the Hopewell development. If so, I share some of your frustration. Alleys should be vacated by the city council at the mayor’s request, without debate. But if some little guy with a couple of hundred year old bungalows on the north side wants to vacate an alley all of a sudden alleys are sacrosanct. Fortunately, the city council did debate the issue and seems to have made some progress toward keeping Hopewell from being another huge development filling up a whole block.

      The enthusiasm that the city has for experimenting with other peoples property and by extension their lives is baffling. Sometime ago there was an article (in the H-T, I think) entitled ‘Why is there so much vacant retail space downtown?’, or some such. The answer was that the city requires it. I haven’t been paying attention, so maybe things have changed. But I walked past the apartments at the SW corner of 7th and Morton this morning and the ground floor retail space there is still vacant.

      It seems like we’re planning for an influx of people that keeps not happening, building huge parks and business incubators that have businesses with single digit employee counts that move to Indianapolis when they achieve 10 or 20 employees.

      Maybe it’s time to try something else. Maybe its time to change the ground floor retail requirements.

      1. I agreed with every word you said. Well stated!

        We’re talking about the same thing: the hospital redevelopment. As a part of moving roads around, they made it so the County and City wanted a bunch of variances to make new parking convenient and plentiful for Centerstone. They requested BZA waivers of parking setbacks, impervious surface requirements, landscaping requirements, etc. Since the city controls the placement of the roads, it’s a textbook example of the type of self-created hardship for which the exact same city staff roasted Randy Lloyd, and for a far less desirable outcome.

        The case is at page 192 of the September BZA packet, and the hearing was moved to a special meeting that apparently wasn’t recorded by CATS. I don’t know the outcome of the vote. Hopefully/maybe some of the BZA members did the right thing and held local government to the same standard local government holds the private sector.

        Here’s the packet:

Comments are closed.