600 Land v. Metropolitan Bd. of Zoning App.

• Decision Date: 27 March 2007
• Docket Number: No. 49A05-0604-CV-223.,49A05-0604-CV-223.
• Citation: 863 N.E.2d 339
• Parties: 600 LAND, INC., Appellant-Petitioner, v. METROPOLITAN BOARD OF ZONING APPEALS OF MARION COUNTY, Indiana and Consolidated City of Indianapolis, Appellee-Respondent, and Kite Realty Group, L.P. and Sybaris Club of Indianapolis, LLC, Appellees-Intervenors.
• Court: Indiana Appellate Court

863 N.E.2d 339

600 LAND, INC., Appellant-Petitioner, v. METROPOLITAN BOARD OF ZONING APPEALS OF MARION COUNTY, Indiana and Consolidated City of Indianapolis, Appellee-Respondent, and Kite Realty Group, L.P. and Sybaris Club of Indianapolis, LLC, Appellees-Intervenors.

No. 49A05-0604-CV-223.

Court of Appeals of Indiana.

March 27, 2007.

Scott R. Sikkenga, Kalamazoo, MI, Robert M. Frye, Pool Abbott & Frye, LLP, Indianapolis, IN, Attorneys for Appellant.

Ian L. Stewart, Indianapolis, IN, Attorney for Appellee Metropolitan Board of Zoning Appeals of Marion County & City of Indianapolis.

Michael A. Wukmer, Melanie E. Harris, Brian E. Bailey, Ice Miller LLP, Indianapolis, IN, Attorneys for Intervenor Kite Realty Group.

Offer Korin, Linda L. Vitone, Katz & Korin, P.C., Indianapolis, IN, Attorneys for Intervenor Sybaris Club of Indianapolis, LLC.

OPINION

ROBB, Judge.

Case Summary and Issues

600 Land, Inc., an Indiana corporation, appeals the trial court's denial of its motion for partial summary judgment and order affirming the decision of the Metropolitan Board of Zoning Appeals of Marion County (the "BZA"), denying 600 Land's petition for a special exception. On appeal, 600 Land raises three issues, which we restate as: (1) whether the Industrial Zoning Ordinance of Marion County (the "IZO") allows 600 Land to operate a solid waste transfer station and recycling facility on its property without seeking a special exception; (2) whether the BZA's denial of 600 Land's petition was based on sufficient evidence; and (3) whether the procedure through which the BZA denied 600 Land's petition deprived 600 Land of due process. We conclude that the IZO does not allow the operation of a waste transfer station without a special exception. However, we reverse, as we also conclude that the BZA's denial of the petition was not based on sufficient evidence.¹

Facts and Procedural History

600 Land owns a parcel of land in Pike Township, Marion County. 600 Land purchased the property with the intent to develop it as a solid waste transfer station and recycling facility. In such transfer stations, trucks bring in solid waste, which is stored temporarily in the station and then loaded onto larger trucks, which transfer the waste to landfills. The property is zoned as I-4-S, the heaviest industrial zoning district under the IZO. However, the IZO does not explicitly list a transfer station as a permitted use in an I-4-S district.

On February 23, 2004, 600 Land filed a Petition for Special Exception, as provided for under the IZO. A number of area property and business owners remonstrated against the proposed special exception, including Kite Realty Group, L.P. ("Kite"), and Sybaris Club of Indianapolis, LLC ("Sybaris"), who both intervened.² Kite is developing a shopping center on a piece of property that lies roughly 700 feet from 600 Land's proposed transfer station. Sybaris owns and operates a hotel in the area.

The BZA held a hearing on 600 Land's petition on May 6, 2004. At the hearing, 600 Land presented evidence including the testimony and report of Nick Tillema, a Certified General Appraiser, indicating that the transfer station would not adversely affect property values, and information relating to its plans for the operation of the station. The Department of Metropolitan Development (the "DMD") Division of Planning Staff (the "Staff") also testified and submitted a report recommending that the BZA approve 600 Land's request. The Remonstrators submitted letters and testimony in opposition to 600 Land's petition, primarily citing concerns over truck traffic, odor, and the resulting effects on neighboring businesses and properties.

After the hearing, the BZA denied 600 Land's petition. After this denial, 600 Land petitioned the trial court for a Writ of Certiorari, challenging the BZA's decision as unsupported by the evidence and arguing that 600 Land was denied due process. After the trial court held a hearing on the writ, the trial court allowed 600 Land to amend its complaint to add a count seeking a declaratory judgment that 600 Land was not required to obtain a special exception in order to operate a transfer station on its property. On September 30, 2005, 600 Land filed a Motion for Summary Judgment on this issue. After a hearing on 600 Land's Motion for Summary Judgment, the trial court issued an order denying 600 Land's motion on December 21, 2005. The trial court issued its Judgment on 600 Land's challenge to the BZA's decision on March 29, 2006. In its order, the trial court affirmed the BZA's decision and found that 600 Land's due process claim failed. The trial court issued Findings of Fact and Conclusions of Law along with its Judgment. 600 Land now appeals both the trial court's denial of its motion for summary judgment and its order affirming the BZA's denial of its petition for a special exception.

Discussion and Decision

I. Summary Judgment

A. Standard of Review

Summary judgment is appropriate when the evidence shows that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Ind. Trial Rule 56(C). The trial court's grant of a motion for summary judgment comes to us cloaked with a presumption of validity. Rodriguez v. Tech Credit Union Corp., 824 N.E.2d 442, 446 (Ind.Ct.App.2005). As in this case, where the material facts are not in dispute, we will determine whether the trial court correctly applied the law to the facts. McCarty v. Sanders, 805 N.E.2d 894, 898 (Ind.Ct.App.2004), trans. denied. We may affirm the trial court's grant of summary judgment upon any basis that the record supports. Rodriguez, 824 N.E.2d at 446.

B. Interpretation of the IZO³

600 Land argues that the trial court improperly denied 600 Land's motion for partial summary judgment because 600 Land's use of its land as a transfer station is permitted under the IZO without the grant of a special exception.

The interpretation of an ordinance, like the interpretation of a statute, is a pure question of law to which we owe the trial court no deference. T.W. Thom Constr., Inc. v. City of Jeffersonville, 721 N.E.2d 319, 324 (Ind.Ct.App.1999). We will give every word effect and meaning where possible, and will hold no part of an ordinance meaningless if we can reconcile it with the rest of the ordinance. Id. If a term is not defined in an ordinance, we will use its ordinary and plain meaning. Flying J., Inc. v. City of New Haven Bd. of Zoning Appeals, 855 N.E.2d 1035, 1040 (Ind.Ct.App.2006). In determining this ordinary meaning, we may use English dictionaries, and consider the word's relationship with other words and phrases used in the ordinance. Id. We also point out that zoning ordinances are in derogation of the common law, and that therefore we strictly construe them and interpret them in favor of the free use of land. Cracker Barrel Old Country Store, Inc. v. Town of Plainfield ex rel. Plainfield Plan Comm'n, 848 N.E.2d 285, 290 (Ind.Ct.App.2006), trans. denied.

When a zoning ordinance specifies which uses are permitted, those uses not specified are not permitted without a special exception or variance. T.W. Thom Constr., 721 N.E.2d at 325. This construction is based upon the canon of expressio unius est exclusio alterius, which directs that when a statute or ordinance enumerates certain things, the necessary implication is that all other things are excluded. Id. As the IZO specifies which uses are permitted within certain zoning districts, if 600 Land's proposed use is not identified, the use is permitted only by special exception.

600 Land seems to concede this point and instead argues that its use fits within the IZO's definition of a "motor truck terminal," and that it should be allowed because the IZO permits the operation of a "recycling facility," which it claims is a more intense use, in an I-S-3 zoning district.⁴

The IZO defines "motor truck terminal" as "[a] building or area in which trucks, including tractor or trailer units are parked, stored, or serviced, including the transfer, loading or unloading of goods. A terminal may include facilities for the temporary storage of loads prior to transshipment." Appellant's App. at 559.

600 Land argues that trucks will be parked, stored, or serviced at its station, and that therefore, it meets the ordinance's definition of a "motor truck terminal." 600 Land also argues that its transfer of waste is permitted under the definition's provision allowing for the temporary storage of loads. It finally argues that whether waste is considered "goods" or not is irrelevant, as the ordinance does not require that the station be used for unloading "goods." We find 600 Land's arguments creative, but must conclude that its proposed use does not fit within the ordinance's definition.

Although the IZO does not specifically state that the permitted uses allowed in the various districts must be the land's primary use, other provisions in the ordinance lead us to conclude that in order for a use to fit within the definition of a permitted use, that use must be the primary use of the land. IZO section 2.00(A) states: "With the exception of legally established nonconforming uses, no land, building, structure, premises or part thereof shall be used or occupied except in conformity with these regulations and for uses permitted by this Ordinance." Id. at 478 (emphasis added). Also, the section that lists permitted uses in I-3-S and I-3-U districts, in which motor truck terminals are permitted, indicates that uses permitted in I-3 districts "may also include (as accessory or incidental uses thereto) any of the I-4-S and I-4-U District uses specified . . . provided that . . . [n]ot more than twenty-five (25) percent of the gross floor area of the building(s) (excluding that used for offices or storage) is devoted to said I-4-S or I-4-U uses." IZO § 2.01(C)(23), Appellant's App. at 486. Based on our reading of the IZO as a...