BZA’s fireworks decision faces appeal

A father and son who want to store fireworks on an Esteb Road property appealed a Wayne County Board of Zoning Appeals decision that would prevent that.

Gary Wolff and Jesse Wolff were denied a variance of use that would have permitted 12 storage containers for consumer fireworks at 4937 Esteb Road, which is zoned agricultural. The Wolffs operate a retail operation in Liberty and planned to store fireworks on the Esteb Road property they bought. Those fireworks would stock the retail store.

For a variance to be approved, BZA members must find five findings of fact, all in the affirmative; however, during the Feb. 13 meeting, BZA members found none in the affirmative. One BZA member was recused, leaving four to consider the petition with the requirement that three must vote in favor of a finding of fact. After hearing a presentation by the Wolffs’ attorney, John Brooke, and opposition from five neighbors, the BZA members voted on the following findings of fact:

• The approval will not be injurious to the public health, safety, morals and general welfare of the community, which was denied 4-0.
• The use and value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner, which was denied 2-2.
• The need for the variance arises from some condition peculiar to the property involved, which was denied 2-2.
• The strict application of the terms of the zoning ordinance will constitute an unnecessary hardship if applied to the property for which the variance is sought, which was denied 3-1.
• The approval does not interfere substantially with the 2020 comprehensive plan, which was denied 2-2.

The Wolffs’ appeal claims the BZA committed “prejudicial procedural errors,” including denial of the variance without a quorum vote, failing to provide facts to support the findings and failing to examine expert evidence. It also specifically questions the members’ finding that the storage would be injurious to the public health, safety, morals and general welfare of the community. The Wolffs’ presentation included safety information about the storage of consumer fireworks.

The appeal was assigned to Circuit Court.

A previous appeal regarding the BZA’s issuance of variances that would permit an auction facility, including a weekly livestock auction, along U.S. 27 remains under consideration by the Indiana Court of Appeals.

The BZA granted the variances to Midway Auction Barn LLC and Omer Kauffman, and after neighbors John and Tammy Tackett appealed, Circuit Court Judge April Drake upheld the BZA’s decisions. The Tacketts then took the case to the Court of Appeals.