Bradley v. Bankert
| Citation | 616 N.E.2d 18 |
| Decision Date | 22 June 1993 |
| Docket Number | No. 06A05-9209-CV-328,06A05-9209-CV-328 |
| Parties | C. Harvey BRADLEY, Jr., Ira Jennings and Benny R. Wilson, Appellants-Defendants, v. Robert H. BANKERT, Gregory T. Bankert, Jonathan W. Bankert, Jr., Cynthia A. Russell and Kathryn L. Bankert, Appellees-Plaintiffs, v. BOONE COUNTY AREA BOARD OF ZONING APPEALS, Boone County Area Plan Commission and Board of Commissioners of Boone County, Indiana, Respondents-Defendants. |
| Court | Court of Appeals of Indiana |
Lewis D. Beckwith, Harry F. McNaught, Jr., Andrew Z. Soshnick, Baker & Daniels, Indianapolis, for appellants-defendants.
Warren D. Krebs, Carol Sparks Drake, Parr Richey Obrembskey & Morton, Lebanon, for appellees-plaintiffs.
C. Harvey Bradley, Jr., Ira Jennings, and Benny R. Wilson ("Remonstrators") appeal from a trial court judgment which reversed a decision of the Board of Zoning Appeals and ordered the Executive Director of the Boone County Area Plan Commission to issue an improvement location permit to Robert H. Bankert, Gregory T. Bankert, Jr., Cynthia A. Russell and Kathryn L. Bankert ("Bankerts").
This case comes to us with a somewhat unusual procedural history. The case originated on March 6, 1991, when the Bankerts filed with the Boone County Area Plan Commission ("Commission") two separate applications for an improvement location permit to build a resource recovery system in a district zoned I-2 (industrial use). The applications and attachments described the proposed building but did not describe the use to which it was intended to be put beyond labeling it as a "resource recovery system."
The Boone County Zoning Ordinance ("Ordinance") divides the county into numerous zoning districts identified by the general types of uses permitted therein. In Table 1, the Ordinance lists specific uses in a vertical column and zoning districts in a horizontal column. The table identifies the districts in which specific uses are permitted by right with an "X" in the box under those districts. The table likewise identifies the districts in which specific uses are permitted only by special exception with an "S" in the box under those districts.
With regard to uses that are not specifically listed, section 3.0 of the Ordinance provides:
1
(Record, p. 190). Table 1 does not list a resource recovery system; however, it does list both a junkyard and a solid waste transfer station, the former of which is permitted by right, and the latter of which is permitted only by special exception. In addition, the Ordinance provides the following definitions:
"Junkyard: Any lot, parcel, or tract of real estate, platted or unplatted, at which personal property is or may be salvaged for reuse, resale or reduction or similar disposition and is owned, possessed, collected, accumulated, dismantled, or assorted...." (Record, p. 179).
"Resource Recovery System: A solid waste management system which provides for collection, separation, recycling, and recovery of solid and/or non-hazardous wastes including the disposal of non-recoverable waste residues." (Record, p. 182).
"Solid Waste: Garbage; refuse; sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility; and other discarded materials including solid, liquid, semi-solid, or contained gaseous material ... but does not include solid or dissolved materials in domestic sewage, hazardous wastes or nuclear wastes." (Record, p. 183).
"Solid Waste Transfer Station: A facility for the collection, separation, compaction, processing and storage of solid waste until said waste can be transported or transferred to a sanitary landfill or other facility approved and licensed for the disposal of solid wastes by the State of Indiana." (Id.)
In support of their application, the Bankerts presented the Director with an opinion letter by their attorney, Warren Krebs, that suggested that a resource recovery system was similar to a junkyard and thus was a permitted use in the I-2 zoning district. The Director referred the question to the Commission. The Commission then decided to refer the question to the BZA.
The Director placed discussion of the Krebs opinion letter as well as the legal opinion of Harry McNaught, Jr., attorney for Remonstrators, on the agenda for the BZA's May 22 meeting. Counsel for the Bankerts appeared at the meeting but did not participate. McNaught did participate and described two facilities located outside the area covered by the Ordinance which were used for recycling and transfer of solid waste. McNaught represented that, during the preceding year, one of those facilities received over 67 million pounds of waste and only recovered 5 1/2 million pounds for recycling. He contrasted that with another facility that received only presorted materials and stated that, as far as he could tell, the Bankerts proposed to operate a system that would take in an unsorted stream of solid waste and that some percentage of the waste would be shipped to other facilities.
The Director also presented a staff report he had prepared which indicated that a resource recovery system was not "technically the same thing as a solid waste transfer station." (Record, p. 635). In addition, the report indicated that the Ordinance allowed several more "intense" uses in the I-2 district, including a junkyard. (Record, p. 636)
On July 24, the BZA entered its decision classifying a resource recovery system as permitted by special exception in an I-2 district. The BZA supported its decision with specific findings as required by Sec. 9.6 of the Ordinance. The BZA found that a resource recovery system should be classified as permitted by special exception for several reasons, including that such a facility might involve heavy truck traffic, might cause environmental pollution, etc. and might utilize different types of technology. Therefore, according to the BZA, a case-by-case analysis pursuant to the special exception procedure was necessary to ensure both that the property values of the neighborhood would be maintained and that the system would be designed, located and operated in such a way as to protect the public health, safety and welfare.
Furthermore, the BZA found that a resource recovery system is similar to a solid waste transfer station in that it would both receive and transfer solid waste and therefore potentially would generate a high volume of truck traffic similar to the traffic generated by a solid waste transfer station. A resource recovery system, reasoned the BZA, is dissimilar to a junkyard because the latter is a place for the salvaging of personal property, whereas the former deals with solid waste, much of which may not be recoverable.
The Bankerts applied to the trial court for a writ of certiorari to review the decision of the BZA, which the court granted. The Bankerts also filed a complaint for declaratory judgment. Pursuant to motion, the trial court allowed Remonstrators to intervene. The court conducted a hearing on March 27, 1992, at which the parties were allowed to present evidence concerning procedural irregularities in the administrative decision and "supplemental evidence" pursuant to I.C. Sec. 36-7-4-1009. The trial court entered judgment reversing the decision of the BZA and ordering the Director to issue the Bankerts an improvement location permit to construct and operate a resource recovery system on the property in question.
The court entered the following relevant findings and conclusions in support of its judgment:
"11. ... In the findings rendered to support [the BZA's] decision, the BZA found that a "Resource Recovery System" would generate a steady stream of heavy truck traffic and that, while truck traffic is typical of an industrial use, there is potential for a much greater volume of such traffic with the proposed use; that the residue of solid waste for transfer will constitute a significant percentage of the total volume of solid waste that initially entered the resource recovery facility; and that a Resource Recovery System would not recycle 'personal property' for reuse or resale. These findings are not supported by testimony or other evidence presented at the BZA meeting.
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Conclusions of Law
Upon determining a Resource Recovery System was 'very similar to a Junkyard' the Executive Director should have issued Bankerts the requested improvement location permit to construct and operate a Resource Recovery System, per Section 3.0 of the ... Ordinance. His failure to do so was an unlawful action.
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3. The BZA is a quasi-judicial body and, as such, is designed to hear and determine appeals, IND CODE SECTION 36-7-4-918.1, not perform legislative functions. The BZA had no authority or jurisdiction to classify or to reclassify a use Resource Recovery System, which was already established in the ... Ordinance....
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5. In construing the ... Ordinance, the issue is whether a use is prohibited, not whether it is permissible. Because the zoning ordinance does not require a special exception for Resource Recovery System, if the BZA had had jurisdiction to amend the ordinance, the BZA did not have legal authority to require the Bankerts to obtain a special exception to construct and operate a Resource Recovery System.... When the County Commissioners amended the ... Ordinance in 1986 to include...
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