Burton v. Bd. of Zoning Appeals of Madison Cnty.

• Decision Date: 21 June 2021
• Docket Number: Court of Appeals Case No. 20A-MI-2186
• Citation: 174 N.E.3d 202
• Parties: David K. and Jane A. BURTON, et al., Appellants-Petitioners, v. BOARD OF ZONING APPEALS OF MADISON COUNTY, and Lone Oak Solar, LLC, Appellees-Respondents.
• Court: Indiana Appellate Court

174 N.E.3d 202

David K. and Jane A. BURTON, et al., Appellants-Petitioners,

v.BOARD OF ZONING APPEALS OF MADISON COUNTY, and Lone Oak Solar, LLC, Appellees-Respondents.

Court of Appeals Case No. 20A-MI-2186

Court of Appeals of Indiana.

FILED June 21, 2021

Attorneys for Appellants: Jason M. Kuchmay, Fort Wayne, Indiana, Randall L. Morgan, Syracuse, Indiana

Attorneys for Appellees: Kevin D. Koons, Indianapolis, Indiana, Gregory A. Neibarger, Andrew M. Pendexter, Dentons Bingham Greenebaum, LLP, Indianapolis, Indiana

Riley, Judge.

STATEMENT OF THE CASE

[1] Appellants-Petitioners, David and Jane Burton, Bob and Jean Mills, Curtis and Rebecca Harrison, Kara and Richard

Brown, Ross and Katrina Hunter, Joshua Hiday, John Doe, and Jane Doe (collectively, Neighbors), appeal the trial court's denial of their petition for judicial review in favor of Appellees-Respondents, the Board of Zoning Appeals of Madison County (BZA) and Lone Oak Solar Energy, LLC (Lone Oak) (collectively, Respondents).

[2] We affirm.

ISSUES

[3] Neighbors present the court with four issues, which we restate as:

(1) Whether a BZA member's failure to meet residency requirements invalidated her vote;

(2) Whether a second BZA member had a conflict of interest or bias which invalidated her vote;

(3) Whether the BZA's grant of two special use applications was clearly erroneous; and

(4) Whether the BZA's grant of two setback variances was clearly erroneous.

FACTS AND PROCEDURAL HISTORY

[4] Lone Oak is a wholly-owned subsidiary of Invenergy, which has developed 125 large-scale energy facilities, including twenty-six solar projects. This case stems from Lone Oak's putative development of a 120-megawatt solar energy farm (the Project) in rural Madison County, Indiana. The Project was originally designed to involve the installation of solar panels over approximately 900 acres of land which Lone Oak had leased in thirty-five parcels from twenty-three landowners. Some of the leased parcels are contiguous. All the land leased by Lone Oak for the Project was zoned as agricultural, as is the great majority of the land adjacent to the Project. The Project's design includes a Decommissioning Plan and a Soil Reclamation Plan to return the land to agricultural viability after approximately thirty-five years. The Project is to include landscaping and buffering from non-participating landowners. The completed solar facility is to be staffed with three solar technicians during regular work hours, and traffic on the site is projected to be light-duty pickups and passenger vehicles.

[5] In March of 2019, in furtherance of the Project, Lone Oak submitted three applications (Original Applications) to the BZA: (1) a Special Use Application (SUA) seeking to allow the Project on land zoned for agriculture; (2) an application seeking to remove, between participating landowners’ parcels, mandatory 25-to-30-foot property-line setbacks for structures so that the Project could be built as a seamless solar field (Setback Variance); and (3) an application not at issue in this appeal seeking to extend the three-year maximum starting period for the Project.

[6] Pursuant to Indiana statute and Madison County Ordinance, the BZA is a five-member board which must render decisions by majority. Beth VanSickle (VanSickle) and Mary Jane Baker (Baker) were both members of the BZA, with Baker serving as Chair. On April 23, 2019, and May 16, 2019, the BZA held public hearings on the Original Applications. Baker did not participate in the hearings, as she had voluntarily recused herself because a friend of hers owned land that was to be used in the Project. Lone Oak and members of the public provided their input at the hearings. On May 28, 2019, the BZA held a third public hearing on the Original Applications, at the conclusion of which it voted 3-1 in favor of the SUA and 4-0 in favor of the variances, including the Setback Variance. VanSickle participated and voted to approve all the Original Applications, but Baker did not participate in the vote. The SUA and the Setback Variance were approved with the conditions that no solar panels could, without the landowner's consent, be located closer than 500 feet from a non-participating landowner's residence or closer than 200 feet from a non-participating landowner's property line. These conditions resulted in a decrease of the number of solar panels which could be installed in the Project. The BZA also required that Lone Oak comply with its Decommissioning Plan, including posting a $5.6 million decommissioning bond, and plant additional trees and vegetation if requested by a non-participating landowner with a sight line to a solar panel. Additionally, Lone Oak was to refrain from physically expanding the Project except as required by the increased setbacks conditions, increasing its production beyond 120 megawatts, producing noise near occupied residences of non-participating landowners above a specified level, and installing any lighting beyond that specified by the BZA. The BZA also required that the Project be completed and operational before December 31, 2023.

[7] On June 18, 2019, in response to the conditions placed on the grant of the Original Applications, and in order to maintain the number of solar panels Lone Oak planned to install in the Project, Lone Oak submitted a second set of Applications to the BZA (Secondary Applications). The Secondary Applications were identical to the Original Applications except that they applied to approximately 350 acres of additional land which was also all zoned for agriculture. A hearing was set for July 30, 2019, on the Secondary Applications.

[8] On June 27, 2019, Neighbors filed for judicial review of the BZA's approval of the Original Applications. It subsequently came to light that VanSickle did not meet the residency requirements to be a member of the BZA. By July 30, 2019, VanSickle was no longer a member of the BZA. At the July 30, 2019, hearing, a BZA staff member stated on the record that VanSickle's votes may not have been valid and that "if that is indeed the case, then the BZA did not take official action on [the Original SUA] as required under Indiana law. This lack of official action necessitates continuing of that hearing." (Appellants’ App. Vol. II, p. 88). Although the meeting had been scheduled for consideration of the Secondary Applications, it was noted that no decision would be required on the Secondary Applications if the Original Applications were invalid. In addition, two new members of the BZA desired additional time to review the record before voting. The BZA, including Baker, voted to continue the hearing to August 29, 2019.

[9] At the August 29, 2019, hearing, Baker announced that, after conferring with its litigation counsel, the BZA had determined that no procedural irregularity had occurred with the May 28, 2019, vote and that its approval of the Original Applications was final. The two new members of the BZA indicated that they wanted more time to prepare for their vote, but the remaining members, including Baker, voted to proceed. Neighbors’ counsel objected to Baker's participation and argued that Baker should recuse herself from consideration of the Secondary Applications as she had from the Original Applications proceedings. Lone Oak and members of the public provided input on the Secondary Applications, and evidence regarding the impact of property values of the Project was received. One remonstrator who argued against the Project directly addressed Baker as follows:

Remonstrator: I've got to say, which our lawyer said, Mary Jane Baker, you recused yourself and you have a friend that's a petitioner in this project. That is a conflict of interest.

Baker: I also have friends –

Remonstrator: Mary Jane.

Baker: – that are on your side.

(Appellants’ App. Vol. II, p. 137).

[10] At the conclusion of the August 29, 2019, meeting the BZA voted unanimously to continue the matter to September 24, 2019, when additional evidence for and against the Project was received. At the conclusion of the September 24, 2019, hearing, the BZA voted 3-2 to approve the Secondary Applications, with Baker casting her vote in favor. On October 24, 2019, Neighbors filed a petition for judicial review of the BZA's approval of the Secondary Applications.

[11] In their petitions for judicial review, Neighbors challenged the validity of the votes of VanSickle and Baker, as well as the evidence supporting Lone Oak's showings that the SUAs complied with Madison County's Comprehensive Plan and that sufficient practical difficulties existed with the Project to merit the Setback Variances. On July 9, 2020, the trial court held a hearing on Neighbors’ petitions. On November 2, 2020, the trial court entered detailed findings of fact and conclusions thereon in two separate Orders denying Neighbors relief. The trial court concluded that Neighbors had waived their argument regarding the validity of VanSickle's vote by failing to raise it before petitioning for review. The trial court also concluded, that even if the issue had been properly raised, VanSickle was a de facto public official at the time she cast her votes on the Original Applications and that her failure to meet the residency requirements for being a member of the BZA did not invalidate her official actions. Pertaining to Neighbors’ claim that Baker was biased such that her votes on the Secondary Applications were invalid, the trial court determined that no evidence had been presented that Baker was biased at the time she recused herself from consideration of the Original Applications and that, even if she had been biased at that time, there was insufficient evidence that any bias had continued until the vote on the Secondary Applications. The trial court found that evidence showed a rational basis for the BZA's grant of both sets of SUAs and Setback Variances and that, more specifically, the Project was consistent with Madison County's Comprehensive Plan and Lone Oak had...