Ernstberger v. Floyd Cnty. Bd. of Zoning Appeals

• Decision Date: 17 March 2021
• Docket Number: Court of Appeals Case No. 20A-PL-2014
• Citation: 167 N.E.3d 724 (Table)
• Parties: Gregory L. ERNSTBERGER, AS TRUSTEE OF the ERNSTBERGER PLANNING TRUST DATED FEBRUARY 27, 2016; Mary Ruth Ernstberger; Paul A. Harrett, Jr.; and Stevie Joe Lewis, Appellants-Petitioners, v. FLOYD COUNTY BOARD OF ZONING APPEALS; The Margaret Phan-Rogers Revocable Living Trust of July 19, 2005; Full Circle Automation, LLC ; and Jeffrey Kiper, Appellees-Respondents.
• Court: Indiana Appellate Court

167 N.E.3d 724 (Table)

Gregory L. ERNSTBERGER, AS TRUSTEE OF the ERNSTBERGER PLANNING TRUST DATED FEBRUARY 27, 2016; Mary Ruth Ernstberger; Paul A. Harrett, Jr.; and Stevie Joe Lewis, Appellants-Petitioners,

v.FLOYD COUNTY BOARD OF ZONING APPEALS; The Margaret Phan-Rogers Revocable Living Trust of July 19, 2005; Full Circle Automation, LLC ; and Jeffrey Kiper, Appellees-Respondents.

Court of Appeals Case No. 20A-PL-2014

Court of Appeals of Indiana.

FILED March 17, 2021

Attorney for Appellants: C. Gregory Fifer, Applegate Fifer Pulliam LLC, Jeffersonville, Indiana

Attorneys for Appellee Floyd County Board of Zoning Appeals: Keith D. Mull, Law Offices of Keith D. Mull, LLC, New Albany, Indiana, Kristi L. Fox Fox, Law Offices, LLC, New Albany, Indiana

Attorney for Appellees Jeffrey Kiper and Full Circle Automation, LLC: John A. Kraft, Young, Lind, Endres & Kraft, New Albany, Indiana

MEMORANDUM DECISION

Bradford, Chief Judge.

Case Summary

[1] Gregory Ernstberger, as trustee of the Ernstberger Planning Trust Dated February 27, 2016; Mary Ruth Ernstberger; Paul Harrett, Jr.; and Stevie Joe Lewis (collectively, "Appellants") objected to an application filed by Full Circle Automation, LLC ("Full Circle") for a variance relating to the zoning classification of a piece of property located in Floyd County. Following two public hearings on the application, the Floyd County Board of Zoning Appeals (the "BZA") granted the application. On appeal, Appellants contend that the trial court abused its discretion in finding that sufficient evidence supported the BZA's decision to grant the requested variance. Concluding otherwise, we affirm.

Facts and Procedural History

[2] At all times relevant to this appeal, the Margaret Phan-Rogers Revocable Living Trust of July 19, 2005 (the "Phan-Rogers Trust") has owned approximately one and one-half acres of land (the "Real Estate"), which was located at the corner of State Road 62 ("SR 62") and Yenowine Lane in Georgetown. In early 2019, the Real Estate was zoned rural residential ("RR"). At some point, the Phan-Rogers Trust granted authorization to Full Circle, which is owned and operated by Jeffery Kiper, to apply for a conditional use for the Real Estate, for the purpose of allowing Full Circle to operate an electrical contracting business.

[3] On June 28, 2019, Full Circle applied for a special exemption (variance of use) for the Real Estate. Justin Tackett, the Director of Building and Development Services in Floyd County, submitted a report that he completed in connection with Full Circle's application, in which Tackett indicated that (1) Full Circle was requesting a variance to operate as an industrial machine controls manufacturer; (2) the proposed use specializes in assembling industrial machine controls; (3) the proposed use will utilize existing structure, as well as an additional 120 by 60 square foot structure to be built; (4) Full Circle has five employees; and (5) although Full Circle initially submitted a conditional use application for a Specialty Trade Office/Workshop, it was directed by staff to submit a request for a variance, as the use is not permitted by the zoning ordinance in the RR zoning district. Tackett's report further indicated as follows:

Planner Viewpoint:

The applicant needs to provide sufficient justification to the board to meet the six items below. My comments are listed below:

1. The special exception will not be injurious to the public health, safety, moral and general welfare of the community:

- Use is limited to assembly work of mechanical/electrical equipment. As presented by the applicant, with its small size, and limit to indoor assembly of parts, I do not see it being injurious to the public health, safety, moral and general welfare of the community.

2. The use and value of the adjacent to the subject property to the special exception will not be affected in a substantially adverse manner:

- If use is not limited in scope, screened, and held to a high standard, the use could be detrimental to adjoining property owners due to the close proximity of single family residential uses.

3. The need for the special exception arises from some condition peculiar to the property involved because:

- Use is permitted in the Office Business/General Industrial Districts. Maplewood Office Business Park is approximately 0.5 miles straight line distance from subject property.

4. The strict application of the terms of the Floyd County Zoning Ordinance will result in an unnecessary hardship in the use of the property:

- Use is permitted in the Office Business/General Industrial Districts. Maplewood Office Business Park is approximately 0.5 miles straight line distance from subject property.

5. The approval of the special exception will not contradict the goals and objectives of the Floyd County Comprehensive Plan:

- Floyd County should encourage the growth and support locally owned businesses, large or small. However, commercial development should be encouraged in commercial areas.

6. The special exception will not adversely affect neighboring property:

- If use is not limited in scope, use could be detrimental to adjoining property owners due to the close proximity of single family residential uses.

IF the applicant can successfully demonstrate to the board that the above items have been met, staff recommends the following conditions:

1. Material of new structure be of brick/masonry material

2. Commercial Septic Permit from State Department of Health

3. Buffer plantings on northern property line

4. No outside storage of manufacturing materials

5. Resurface of parking lot within 1 year of full operation[.]

Appellants’ App. Vol. II p. 172.

[4] The BZA conducted a public hearing on Full Circle's application on July 8, 2019, during which it heard arguments both against and in favor of the application. At the conclusion of the hearing, the BZA tabled the application until its August 12, 2019 meeting. After considering the application together with Tackett's report and the arguments made during the July 8, 2019 public meeting, the BZA adopted the following findings addressing each of the statutory considerations:

1. The special exception [will not] be injurious to the public health, safety, morals, and general welfare of the community because: the use is limited to assembly work of mechanical/electrical equipment. As presented by the applicant, with its small size, and limited to indoor assembly of parts.

2. The use and value of the area adjacent to the property subject to the special exception [will not] be affected in a substantially adverse manner because: the development will be limited in scope, screened & held to a high standard of construction.

3. The need for the special exception [does] arise from some condition peculiar to the property involved because: the property has been used for commercial activity & is currently vacant. This use is permitted in the Office Business/General Industrial Districts. Maplewood Office Business Park is approximately 0.5 miles straight line distance from subject property. The property is at a corner of a heavily traveled intersection making it more affected by noise & fumes than the surrounding area.

4. The strict application of the terms of the Floyd County Zoning Ordinance [will] result in an unnecessary hardship in the use of the property because: the site is located along [SR 62] which is conducive to commercial activity & its proximity to the Maplewood Office Business Park and this type of activity is permitted in [the] Office Business/General Industrial District.

5. The approval of the special exception [will not] contradict the goals and objectives of the Floyd County Comprehensive Plan because: Floyd County is encouraging the growth & support of locally owned businesses. The building will face [SR 62] which has commercial business along the road in this area.

6. The special exception [will not] adversely affect neighboring property because: the building will be constructed so it [is] compatible with the surrounding structures.

Appellants’ App. Vol. III p. 59. On August 12, 2019, the BZA granted Full Circle's application, subject to the following conditions:

1. The new structure will be constructed using brick, hardy board, or split face concrete blocks or stucco or a blend of these materials to enhance the [building's] appearance.

2. Acquire a Commercial Septic Permit from the State Dept. of Health.

3. Along the northern property line install buffer plantings (2 staggered rows at 20' on center). 6' tall Norway Spruce or [an] alternative approved by staff.

4. The parking lot will be paved within one year of receiving the certificate of occupancy.

5. Submit a landscape plan for staff approval with planting along [the] SR 62 side of the parking lot & the end of the building.

6. Add a minimum of two windows on the Yenowine Lane side of the building.

7. Existing [building] exterior to be refinished similar to [the] new building.

Appellants’ App. Vol. III p. 60. The approval was also subject to Full Circle's written commitment that Full Circle would "not store any manufacturing materials outside of the building." Appellants’ App. Vol. III p. 60.

[5] On September 4, 2019, Appellants filed a verified petition for judicial review of the BZA's decision. On September 30, 2020, following the submission of briefs by all parties, the trial court issued an order in which it affirmed the BZA's decision.

Discussion and Decision

[6] Appellants contend that the trial court erroneously affirmed the BZA's decision, arguing that the evidence "was so proportionately meager as to lead to the conclusion that the finding and decision of the BZA, and its affirmation by the trial court, were not supported by substantial evidence of probative value." Appellants’ Br. p. 16.

When reviewing a decision of a zoning board, this court and the trial court are bound by the same standard. Scott v. Marshall County Bd. of Zoning Appeals , 696 N.E.2d 884, 885 (Ind. Ct. App. 1998). We presume the

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