Court of Appeals of Indiana | Memorandum Decision 19A-PL-2190 | March 6, 2020 Page 1 of 9

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

C. Gregory Fifer

Applegate Fifer Pulliam LLC

Jeffersonville, Indiana

ATTORNEY FOR APPELLEE FLOYD 

COUNTY BOARD OF ZONING 

APPEALS

Keith D. Mull

Mull Law Office

New Albany, Indiana

ATTORNEY FOR APPELLEES 

CURT RAFFERTY AND CEEK 

PROPERTIES, LLC

John A. Kraft

Young, Lind, Endres & Kraft

New Albany, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Stiller Properties, LLC,

Appellant-Petitioner, 

v. 

Floyd County Board of Zoning 

Appeals, Curt Rafferty, and Ceek 

Properties, LLC, 

Appellees-Respondents

March 6, 2020

Court of Appeals Case No.

19A-PL-2190 

Appeal from the Floyd Superior 

Court 

The Honorable Marsha Owens 

Howser, Special Judge

Trial Court Cause No.

22D02-1809-PL-1305 
Court of Appeals of Indiana | Memorandum Decision 19A-PL-2190 | March 6, 2020 Page 2 of 9

Crone, Judge. 

Case Summary

[1] Curt Rafferty filed an application for a development standards variance to build 

a 7500-square-foot Dollar General store in a zoning district in which retail 

establishments only up to 5000 square feet are permitted. The Floyd County 

Board of Zoning Appeals (“BZA”) held a hearing and granted Rafferty’s

variance application over the objection of neighboring landowner Stiller 

Properties, LLC (“Stiller”). Stiller petitioned for judicial review of the BZA’s 

decision, which the trial court affirmed. On appeal, Stiller contends that the 

BZA’s decision is unsupported by substantial evidence. We disagree and 

therefore affirm. 

Facts and Procedural History

[2] Ceek Properties, LLC (“Ceek”), owns a lot on Paoli Pike in Floyds Knobs that 

is located in a Neighborhood Commercial (“NC”) zoning district. One of the 

permitted uses in an NC district is a Retail Small Scale use, which “means a 

retail establishment up to 5,000 square feet primarily engaged in the selling or 

rental of goods and/or merchandise and in rendering services incidental to the 

sale of such goods.” Appellant’s App. Vol. 2 at 185. Rafferty contracted with 

Ceek to purchase the lot with the intent of building a Dollar General store that 

he would lease to the company. In July 2018, Rafferty filed an application for a 

development standards variance that would allow him to build a 7500-squarefoot store. At the BZA hearing on his application, Rafferty explained that 
Court of Appeals of Indiana | Memorandum Decision 19A-PL-2190 | March 6, 2020 Page 3 of 9

“Dollar General does not have a prototype that’s 5,000 square feet. Their 

smallest prototype is 7,500. If there was one that was 5,000 I would be happy 

to do it, but their smallest one is 7,500 and they rarely ever use it.” Id. at 135. 

The BZA granted the application over the objection of Stiller, which owns 

property across Paoli Pike from Ceek’s lot. Stiller petitioned for judicial review 

of the BZA’s decision, which the trial court affirmed. Stiller now appeals.

Discussion and Decision

[3] Stiller contends that the BZA erred in granting Rafferty’s variance application. 

“A variance is described as a dispensation granted to permit a property owner 

to use his property in a manner forbidden by the zoning ordinance. A zoning 

board has the power within its discretion to approve or deny a variance from 

the terms of a zoning ordinance.” Schlehuser v. City of Seymour, 674 N.E.2d 

1009, 1012 (Ind. Ct. App. 1996) (citation omitted). Judicial relief from a zoning 

decision may be granted only if the court determines that the petitioner has 

been prejudiced by a decision that is “(1) arbitrary, capricious, an abuse of 

discretion, or otherwise not in accordance with law; (2) contrary to 

constitutional right, power, privilege, or immunity; (3) in excess of statutory 

jurisdiction, authority, or limitations, or short of statutory right; (4) without 

observance of procedure required by law; or (5) unsupported by substantial 

evidence.” Ind. Code § 36-7-4-1614(d). “The burden of demonstrating the 

invalidity of a zoning decision is on the party to the judicial review proceeding 

asserting invalidity.” Ind. Code § 36-7-4-1614(a).
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[4] When we review a zoning board’s decision, we apply the same standard as the 

trial court. Burcham v. Metro. Bd. of Zoning App. Div. 1 of Marion Cty., 883 N.E.2d 

204, 213 (Ind. Ct. App. 2008). We may not substitute our judgment for that of 

the zoning board, and we may neither reweigh evidence nor reassess witness 

credibility. Id. To reverse the grant of a variance on the basis of insufficient 

evidence, “an appellant must show that the quantum of legitimate evidence was 

so proportionately meager as to lead to the conviction that the finding and 

decision of the board does not rest upon a rational basis.” Id. at 212-13

(quoting Snyder v. Kosciusko Cty. Bd. of Zoning App., 774 N.E.2d 550, 552 (Ind. 

Ct. App. 2002), trans. denied (2003)). 

[5] The requirements for obtaining a development standards variance are spelled 

out in Indiana Code Section 36-7-4-918.5(a), which reads in relevant part,

A board of zoning appeals shall approve or deny variances from 

the development standards (such as height, bulk, or area) of the 

zoning ordinance.[1] The board may impose reasonable 

conditions as a part of the board’s approval. A variance may be 

approved under this section only upon a determination in writing 

that:

(1) the approval will not be injurious to the public health, 

safety, morals, and general welfare of the community;

1 Stiller argues that Rafferty should have applied for a use variance instead of a development standards 

variance because the zoning ordinance does not permit commercial retail uses of 5000 square feet or more in 

an NC district. The appellees assert that this argument is waived because Stiller failed to raise it at the BZA 

hearing. We agree. See McBride v. Bd. of Zoning App. of Evansville-Vanderburgh Area Plan Comm’n, 579 N.E.2d 

1312, 1315 (Ind. Ct. App. 1991) (“Objections or questions which have not been raised in the proceedings 

before the administrative agency will not be considered by this court on review of the agency’s order.”).
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(2) the use and value of the area adjacent to the property 

included in the variance will not be affected in a 

substantially adverse manner; and

(3) the strict application of the terms of the zoning 

ordinance will result in practical difficulties in the use of 

the property.[2]

Here, the BZA’s preprinted “ballot” on Rafferty’s variance application contains 

the following findings:

1. Approval of the variance [will not] be injurious to the public

health, safety, morals, and general welfare of the community 

because: a larger building could be constructed with multiple tenants. 

The design elements being provided fit well with the recent development 

along Paoli Pike.

2. The use and value of the area adjacent to the property

included in the variance [will not] be affected in a substantially 

adverse manner because: the site is currently zoned Neighborhood 

Commercial and this type of business is permitted.

3. The strict application of the terms of the zoning ordinance

[will] result in practical difficulties in the use of the property 

because another development could be proposed that would be larger 

and generate more adverse conditions. Thus this proposed development 

fits satisfactorily on this site.

Appellant’s App. Vol. 2 at 116 (handwritten notations in italics).

2 The statute also permits a zoning ordinance to establish a stricter standard than the “practical difficulties” 

standard, but Floyd County’s zoning ordinance does not do so.
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[6] Contrary to Stiller’s assertions, there is sufficient evidence in the record to 

support each of these findings. First, regarding the BZA’s finding that approval 

of the variance will not be injurious to the public health, safety, morals and 

general welfare of the community, the evidence indicates that the proposed 

building is actually smaller than existing buildings in the area and, as 

emphasized by the BZA, the proposed building is smaller than a multiple-use

larger building that would already be allowed on the same site as a matter of 

right. Id. at 63, 122, 125, 132.

3

 As restaurants, gas stations, groceries, and 

other commercial uses are approved for the area, the proposed retail space is 

totally “in line with the density that is already allowed on the site.” Id. at 130. 

The proposed Dollar General store “will generally be pulling traffic from the 

existing traffic that’s on Paoli Pike,” id. (emphasis added), and there is no 

evidence to suggest that approval of the variance will cause traffic to become 

injurious to the community.4 Moreover, there is evidence in the record which 

indicates that the planned construction of a water detention basin and retaining 

wall on the property will not injure but would actually serve to improve current 

drainage and water runoff issues on Paoli Pike. Id. at 60, 113, 131. In short, 

3 A multiple-use building on the site same could be up to 10,000 square feet. Appellant’s App. Vol. 2 at 122, 

125.

4 Rafferty’s project engineer, Jason Copperwaite, explained,

Because there are other Dollar General’s [sic] in other places like Georgetown you won’t have 

people coming from Georgetown to go to this Dollar General store. [T]here are Dollar General 

Stores in New Albany you won’t have people coming from New Albany to this Dollar General 

store. This Dollar General store will be for the residen[ts] of Floyds Knobs, those people that are 

already trafficking Paoli Pike.

Appellant’s App. Vol. 2 at 130.
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ample evidence supports the BZA’s conclusion that approval of the variance 

will not be injurious to the public health, safety, morals, and general welfare of 

the community.

[7] As for the second finding, that the use and value of the area adjacent to the 

property will not be affected in a substantially adverse manner, it is undisputed,

as Rafferty points out, that “retail establishments could be developed there as a 

matter of right, including those of significantly larger structure size than what 

[he] was requesting[,]” and that “[t]hose businesses would likewise have lights, 

deliveries, and people doing business.” Appellees’ Br. at 15.5

 Indeed, Rafferty 

submitted a detailed site plan showing that the proposed structure here is a 

stone and brick building that has “elevated design elements” that fit well within 

the recent development along Paoli Pike. Appellant’s App. Vol. 2 at 60, 89-90,

132. This evidence supports a finding that the requested variance would not 

affect the use and value of the adjacent area in a substantially adverse manner.

[8] And as for the third finding, that strict application of the terms of the zoning 

ordinance will result in practical difficulties in the use of the property, Rafferty 

emphasizes that he purchased the lot “with the sole intention of using the space 

5 At the BZA hearing, Rafferty’s counsel observed that if

Dollar General decided half of [the proposed 7500 square feet of retail space] was going to be 

Dollar General grocery, ... and [the other half was going to be] Dollar General general 

merchandise and split it into two uses we would not even need to be here this evening because 

the building size is allowed as a matter of right under the neighborhood commercial [zoning

rules].

Appellant’s App. Vol. 2 at 125. In fact, as already noted, a building of up to 10,000 square feet would be 

allowed as a matter of right under such circumstances.
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for a Dollar General business” and that “[t]he smallest possible prototype for 

the Dollar General is [7500] square feet.” Appellees’ Br. at 16. He further 

notes that he “did not create the prototype and did not have authority to alter 

the square footage[,]” and that “the denial of the variance would have resulted 

in [his] 100% economic loss.” Id. at 16-17; see Reinking v. Metro. Bd. of Zoning 

App. of Marion Cty., 671 N.E.2d 137, 142 (Ind. Ct. App. 1996) (“[T]he purchase 

of property with knowledge of use restrictions does not prohibit a purchaser 

from claiming a special or unnecessary hardship, regardless of who owned the 

property at the time it was burdened.”).6

 Significantly, the evidence 

demonstrates that current approved uses for the site include far larger and more 

commercially intense uses than Rafferty’s proposal. The BZA was well within 

its discretion to determine that it would constitute an unnecessary hardship to 

permit those commercially intense uses, but not Rafferty’s proposed use. 

[9] We conclude that the foregoing facts are more than sufficient to support the 

BZA’s findings. Stiller has failed to show that the quantum of legitimate 

evidence was so proportionately meager as to lead to the conviction that the 

finding and decision of the BZA does not rest upon a rational basis. Burcham, 

883 N.E.2d at 213. Consequently, we affirm.

6 Stiller seizes on Rafferty’s counsel’s hypothetical about splitting the store into two uses and claims that, 

“[g]iven such admission, it was impossible for Rafferty or [Ceek] to demonstrate a practical difficulty in the 

use of the Property in the absence of the grant of the requested variance.” Appellant’s Br. at 24. But there is 

no evidence that Dollar General would ever consent to such an arrangement.
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[10] Affirmed.

May, J., and Pyle, J., concur.