Steuben County v. Family Development, Ltd.
| Decision Date | 31 July 2001 |
| Docket Number | No. 76A04-0006-CV-259.,76A04-0006-CV-259. |
| Citation | 753 N.E.2d 693 |
| Parties | STEUBEN COUNTY; F. Mayo Sanders, Dale Hughes, Jr. and Rodney Wells, In Their Capacity as Members of the Steuben County Board of Commissioners; Steuben County Plan Commission; James A. Crowl, Ronald Dodd, Paul Friend, Larry Gilbert, Dale Hughes, Jr., August Bud Kurtz, Nancy Vail-Mattingly, John McLaughlin, and Delbert Shultz, In Their Capacities as Members of the Steuben County Plan Commission; Steuben County Board of Zoning Appeals; William Bryan, Ronald Dodd, Thomas Hanselman, Willis Ingledue, August Bud Kurtz, In Their Capacities as Members of the Steuben County Board of Zoning Appeals; Phillip K. Meyers, In His Capacity as Steuben County Zoning Administrator; and June Fee Haskins and Patricia Hakes on Behalf of the Waste Watchers, Inc. as Their Interests May Appear, Appellants-Defendants, v. FAMILY DEVELOPMENT, LTD., Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Phillip S. Renz, Diana C. Bauer, Miller Carson Boxberger & Murphy, Fort Wayne, IN, Attorneys for Appellants.
Lawrence A. Vanore, Sommer & Barnard, Indianapolis, IN, James P. McCanna, Auburn, IN, Attorneys for Steuben County Waste Watchers.
James P. Fenton, Alan VerPlanck, Eilbacher Scott, Fort Wayne, IN, Attorneys for Appellee.
June Fee Haskins and Colleen Hake,1 on behalf of Steuben County Waste Watchers, Inc. (collectively, "Waste Watchers"), and several Steuben County elected officials and government agencies (collectively, "Steuben County"),2 appeal the trial court's grant of Family Development, Ltd.'s ("Family Development") motion for summary judgment and the trial court's denial of their respective motions for summary judgment. Waste Watchers and Steuben County each raise several issues,3 which we consolidate and restate as:
1. whether the trial court abused its discretion when it granted Family Development's motion to strike portions of two affidavits submitted by Waste Watchers; and
2. whether the trial court erred when it granted Family Development's motion for summary judgment and denied Waste Watchers and Steuben County's motions for summary judgment.
We affirm in part, reverse in part, and remand with instructions.
The relevant facts follow. In 1975, Clarence Rowlinson owned eighty acres of land in Steuben County. On June 11, 1975, Rowlinson petitioned the BZA for a special exception to build a landfill on his property.4 The BZA granted the request on July 7, 1975. Later that same year, Rowlinson leased approximately eighteen acres of his land to Peter Putnam, who constructed a landfill. Putnam operated the landfill until the Indiana Department of Environmental Management ("IDEM") closed the landfill in 1986.
On August 1, 1986, Rowlinson conveyed the rest of his property, consisting of approximately sixty-two acres, to National Serv-All, Inc. ("Serv-All"). Rowlinson retained ownership of the land that he had leased to Putnam. In 1989, Serv-All applied for a permit from IDEM to operate a landfill on its sixty-two acres. On May 23, 1997, while the permit application was pending, Serv-All, by its president, Gregory C. Walbridge, quitclaimed its interest in the property to Gregory C. Walbridge, G. Charles Walbridge, and Kevin C. Walbridge. On August 1, 1997, the Walbridges conveyed the property by warranty deed to Family Development.
Family Development has continued to pursue Serv-All's application to IDEM for a permit to operate a landfill on the sixty-two acres. However, Family Development has never applied to the BZA for a special exception or an ILP to construct and manage a landfill on its property. In addition, the proposed landfill has faced opposition in Steuben County. Waste Watchers is a not-for-profit corporation that is involved in environmental issues in Steuben County, and it has objected to the proposed landfill. Phillip K. Meyers, the Steuben County Plan Director and Zoning Administrator, also opposes the proposed landfill. On September 12, 1997, Meyers sent a letter to IDEM stating that Family Development did not possess a valid special exception to use its land as a landfill or an ILP permitting it to build the landfill. Meyers also related that, in his opinion, Family Development would be required to seek a new special exception and an ILP from the BZA to construct its landfill, and that the proposed landfill would have to meet current developmental standards, rather than the standards that were in effect in 1975, in order to obtain the BZA's approval.
On January 15, 1998, Family Development filed a complaint against Steuben County and Waste Watchers in the Steuben Circuit Court. Family Development requested a declaration that it possesses all of the necessary zoning approval to build the landfill, an injunction against further interference with Family Development's attempts to obtain IDEM's approval for the landfill, or, in the alternative, damages for an unlawful taking of its property. All three parties filed motions for summary judgment. Family Development also filed a motion to strike portions of two affidavits filed by Waste Watchers. On March 29, 2000, the trial court granted Family Development's motion for summary judgment and denied Steuben County and Waste Watchers' motions for summary judgment. The trial court also granted Family Development's motion to strike. Steuben County and Waste Watchers both filed motions to correct error, which the trial court denied. On June 16, 2000, pursuant to the parties' request, the trial court certified its summary judgment ruling as a final judgment.5
The first issue is whether the trial court abused its discretion when it granted Family Development's motion to strike portions of two affidavits submitted by Waste Watchers. We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Richardson v. Calderon, 713 N.E.2d 856, 860 (Ind.Ct.App. 1999),reh'g denied, trans. denied. We will reverse such an exercise of discretion only when the decision is clearly against the logic and effect of the facts and the circumstances. Id. Affidavits in support of or in opposition to a motion for summary judgment are governed by Ind. Trial Rule 56(E), which provides, in relevant part: "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein."
We will address each affidavit in turn.
The trial court struck the following paragraphs from the affidavit of appellant/defendant June Fee Haskins, who is a director of Waste Watchers:
6. A sanitary landfill was operated on that portion of the 80 acres not part of the Subject Real Estate, but was closed and its permit to operate revoked because of repeated violations of rules and regulations of [IDEM] and also of Steuben County Regulatory and Zoning authorities.
7. That landfill was never properly closed, and leachate from the site remains a serious threat to the area ecosystem, and is subject to a state and local commission investigating possible ways to clean up the site. That leachate stains the soil with which it comes into contact, carries a foul order [sic], and eventually goes into Black Creek.
8. Black Creek and its tributaries run along the north, west, and south sides of the site.
9. Black Creek runs directly into Hamilton Lake, which is only 2.5 miles from the site.
10. Many of the neighbors within the watershed and downstream from the Subject Real Estate have wells for domestic use less than 60 feet below ground level.
11. Surface water drainage from the Subject Real Estate drains primarily to the south and into Black Creek, which in turn drains into Hamilton Lake.
* * * * * *
13. There are two Amish schools, one about one-half mile south of the Subject Real Estate, and the other about one mile southeast of the Subject Real Estate, many of whose students travel by open buggy to and from school on the same roads accessing the Subject Real Estate.
As we discuss below, the primary issues debated by the parties are whether Family Development possesses a valid special exception and a valid ILP. See infra Part II. These issues focus on interpretation of the Steuben County zoning ordinance and other statutes. The paragraphs outlined above describe the environmental problems at Putnam's landfill and the nature of the land surrounding Family Development's property, which are not relevant to questions of statutory interpretation. Because those paragraphs are irrelevant to the issues in this case, the trial court did not abuse its discretion when it struck those paragraphs from Ms. Haskins' affidavit. See Laudig v. Marion County Bd. of Voters Registration, 585 N.E.2d 700, 709 (Ind.Ct.App.1992),
trans. denied.
The trial court also struck the following paragraphs from defendant/appellant Phillip Meyers's affidavit:
4. To construct and operate a landfill in Steuben County at any time from the beginning of 1975 through the date hereof, an applicant must obtain a special exception, which will permit use as a landfill on a particular site, assuming that site has the appropriate zoning, and further assuming the applicant meets or has met all other requirements of the Zoning Ordinance, and other federal, state, and local laws, rules and/or regulations.
* * * * * *
8. There is some question over whether the special exception for the subject real estate still is effective; but, for the purposes of this affidavit and the summary judgment motion of defendants which it supports, assuming that the special exception were still effective, no one, including plaintiff, could construct or operate a landfill on the subject real estate without meeting all of the other provisions of the Steuben County Zoning Ordinance. Those other provisions of the Steuben County Zoning...
To continue reading
Request your trial
-
Metro. Dev. Comm'n v. Pinnacle Media, LLC
...in respect of a permit application on file with a permitting agency at the time of the change. See Steuben County v. Family Dev., Ltd., 753 N.E.2d 693 (Ind.Ct.App.2001), trans. denied (concerning a permit for a landfill); Yater v. Hancock County Bd. of Health, 677 N.E.2d 526 (Ind.Ct.App.199......
-
Vaughn v. Daniels Co.(West Virginia), Inc.
...expertise and not merely on hearsay statements of the parties to the accident), trans. denied.; but see Steuben County v. Family Dev., Ltd., 753 N.E.2d 693, 698 (Ind.Ct.App.2001) (excluding paragraphs from an affidavit describing as a matter of law how an applicant may obtain approval for a......
-
In re Remonstrance Appealing Ordinance, 32A01-0108-CV-298.
...denied. We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Steuben County v. Family Dev. Ltd., 753 N.E.2d 693, 696 (Ind.Ct.App. 2001). We will reverse such an exercise of discretion only when the decision is clearly against the logic and effect of th......
-
METROPOLITAN DEVELOPMENT COM'N OF MARION CTY. v. Pinnacle Media, …
...general rule of law that ordinances or statutes which are substantive in their effect are not retroactive"); Steuben County v. Family Dev., Ltd., 753 N.E.2d 693 (Ind.Ct.App.2001) (building permit for landfill), trans. denied; Yater v. Hancock County Bd. of Health, 677 N.E.2d 526 (Ind.Ct.App......