Holmes v. Board of Zoning Appeals of Jasper County

• Decision Date: 16 May 1994
• Docket Number: No. 37A03-9211-CV-375,37A03-9211-CV-375
• Parties: Harold HOLMES, III, Howard Holmes, and Holmes Bros., Inc., Appellants-Petitioners Below, v. BOARD OF ZONING APPEALS OF JASPER COUNTY, Indiana, Appellee-Respondent Below.
• Court: Indiana Appellate Court

Page 522

634 N.E.2d 522

Harold HOLMES, III, Howard Holmes, and Holmes Bros., Inc., Appellants-Petitioners Below, v. BOARD OF ZONING APPEALS OF JASPER COUNTY, Indiana,

Appellee-Respondent Below.

No. 37A03-9211-CV-375.

Court of Appeals of Indiana,

Third District.

May 16, 1994.

David C. Appel, Valparaiso, for appellant.

James R. Beaver, Halleck & Beaver P.C., Rensselaer, Lawrence A. Vanore, Donald C. Biggs, Sommer & Barnard, P.C., Indianapolis, for appellee.

STATON, Judge.

Howard Holmes, Harold Holmes, and Holmes Bros., Inc. (collectively "Holmes") appeal the trial court's judgment affirming a decision of the Board of Zoning Appeals of Jasper County ("BZA"). Holmes presents thirteen issues for our review, only one of which we must address: whether the trial court erred in determining that the BZA's authority to regulate Holmes' proposed storage tank is not preempted by state law. We also raise sua sponte the issue of whether the BZA erred by failing to make written findings.

We affirm in part and remand.

Harold Holmes and Howard Holmes own and operate Holmes Bros., Inc., a corporation engaged in the business of constructing, repairing and servicing private residential septic systems in Jasper County. For several years, Holmes Bros. disposed of residential septage generated from its operation by land application of that septage on Howard Holmes' farm. Holmes' land application activities were approved annually by the Indiana Department of Environmental Management ("IDEM"). In the spring of 1991, the Indiana State Board of Health notified Holmes that its land application activities would be restricted, limiting application to the time between May 1 and December 1 of each year. Because of these limitations, Holmes got permission from IDEM to build an 86,000 gallon concrete storage tank adjacent to the application site on Holmes' farm. The BZA informed Holmes that in order to use the storage tank, Holmes was required to apply for and obtain a special exception under the zoning code. Although Holmes disagreed that a special exception was necessary, Holmes filed an application.

The Jasper County Plan Commission held a public hearing on Holmes' special exception application on April 22, 1991. After the hearing, the BZA concluded that Holmes was not entitled to a special exception and disallowed use of the tank. Holmes petitioned the Jasper County Circuit Court for writ of certiorari challenging the BZA's decision. The trial court affirmed the BZA, and this appeal ensued.

I. Preemption

Holmes contends that state law preempts the BZA's authority to regulate the proposed storage tank. ¹ In reviewing a BZA decision, we are bound by the same standard of review as the trial court. Yater v. Hancock County Planning Commission (1993), Ind.App., 614 N.E.2d 568, 571. Because this issue is a pure question of law, our standard does not require deference to the determinations of the BZA. Town of Beverly Shores v. Bagnall (1992), Ind., 590 N.E.2d 1059, 1061. We will reverse only if an error of law is demonstrated. Id. Absent illegality, this court may not substitute its judgment for that of the BZA. Id. Because the BZA determined that regulation of Holmes' tank was within the scope of its authority, we must determine whether the BZA's determination was illegal.

The trial court found that disposal of residential septic waste is subject to local comprehensive zoning requirements and not preempted by state law. The trial court based this finding on IND.CODE 8-1-2-89(b) (1993), which expressly subjects companies providing sewage disposal service to local zoning requirements. Holmes argues that the trial court's reliance on I.C. 8-1-2-89(b) is erroneous because it is not a company providing sewage disposal service as defined in I.C. 8-1-2-89(a), and therefore is not subject to this section. I.C. 8-1-2-89(a)(1) defines sewage disposal service as follows:

(1) "Sewage disposal service" means any public utility service whereby liquid and solid waste, sewage, night soil, and industrial waste of any single territorial area is collected, treated, purified, and disposed of in a sanitary manner, and includes all sewage treatment plant or plants, main sewers, submain sewers, local and lateral sewers, intercepting sewers, outfall sewers, force mains, pumping stations, ejector stations, and all other equipment and appurtenances necessary or useful and convenient for the rendition of such service.

Holmes argues that this does not apply to its wastewater land application operation, including the proposed storage tank, because this operation is wholly private and cannot be considered a public utility. Thus this section does not give the BZA authority to regulate Holmes' land application operation.

We agree with Holmes that application of residential septage on land privately owned by Howard Holmes should not be characterized as a public utility. ² We believe Holmes' activities instead fall under the purview of the Environmental Management Act, IND.CODE 13-7-1-1 et seq. (1993). However, this does not change the trial court's result.

This court addressed the issue of preemption of local authority by the Environmental Management Act in Indiana Waste v. Board of Commissioners of Howard County (1979), 180 Ind.App. 385, 389 N.E.2d 52, tr. denied. Indiana Waste involved local government regulation of sanitary landfills. In order to prevent local regulation, the appellant attempted to rely on the purpose of the Act to establish state law preemption. Id. at 393-394, 389 N.E.2d at 57. The purpose as set forth in the Act provides:

The purpose of [article 7] is to provide for evolving policies for comprehensive environmental development and control on a statewide basis, to unify, coordinate, and implement programs to provide for the most beneficial use of the resources of the state, and to preserve, protect, and enhance the quality of the environment so that, to the extent possible, future generations will be ensured clean air, clean water, and a healthful environment.

IND.CODE 13-7-1-1(a) (1993). In interpreting this language, this court concluded that it did not contain even a "hint of preemption". Indiana Waste, supra. To support its conclusion, this court relied on additional provisions of the Act, including I.C. 13-7-15-2, which encourages local government units to develop facilities and establish standards for environmental management. Id. at 394, 389 N.E.2d at 57-58. Government units could not fulfill this provision if they were divested of power to deal with its subject matter. Id.

We conclude that this rationale applies equally to the case at bar. ³ The wastewater management section of the Environmental Management Act ⁴ does not preempt local regulation of wastewater disposal, including zoning authority, as long as local regulation is not inconsistent with the Act. The BZA's actions in this case are not inconsistent, and in fact further the purpose of the Act. The BZA is not disallowing construction of storage tanks to assist in land...