Wastewater One, LLC (“the Utility”) appealed from a decision that affirmed the BZA’s denial of a conditional use permit for the expansion of a sewage treatment plant. The treatment plant had been a grandfathered-in, non-conforming use since the 1970s, but the BZA found that the expansion would adversely affect the value of adjacent properties, the need for a conditional use is not caused by the characteristics of the property itself, and that it would contradict the purpose of the Floyd County Comprehensive Plan. On the other hand it also found that the expansion would cause unnecessary hardship for the Utility in restricting the use of its property and the use would not be injurious to the public welfare in general because it provides an essential service. The lower court found that the BZA acted within its authority to make these findings, which were adequately supported by the record.
The Indiana appellate court first considered the BZA’s jurisdiction over the expansion proposal. The Utility argued that although the BZA may have the authority with regard to the initial location of a utility, it lacks such jurisdiction over the repair, improvement, or expansion of existing facilities. The Utility also claims that the permit denial constituted a taking in violation of the federal Constitution. The BZA responded by arguing that because the expansion would be built on another tract of land it was not permitted as part of the current non-conforming use and was not an unconstitutional taking. The express language of Ind.Code § 8-1-2-89(b) subjected sewage plants to local zoning regulations. Consequently, the BZA had the authority over the Utility’s expansion proposal.
The Court then considered whether the relevant ordinance’s requirements for conditional use permits conflicted with Indiana law. The Utility argued that granting of conditional use permits is mandatory once an applicant meets certain requirements, and because the relevant ordinances gives discretion to the BZA, it should be declared void. The BZA contends, however, that Indiana case law establishes that some zoning ordinances are “purely regulatory” while others may grant discretion to local zoning boards to grant or deny conditional uses. The Court agreed with the BZA, and found that the provision at issue conferred a substantial amount of discretion upon the BZA, therefore entitling the BZA to use that discretion in this case and causing no conflict with state law.
The Utility proceeded to assert that the lower court erred in affirming the BZA’s denial of the permit, arguing that considering testimony of adjacent landowners and its relationship to the comprehensive plan were irrelevant to a determination of a conditional use. The Utility claimed the BZA abused its discretion in considering such evidence and subsequently denying the conditional use permit. The Court disposed of the Utility’s assertion that the BZA’s failure to analyze the technical requirements for a sewage plant revealed the arbitrariness of the decision, but failed to cite authority requiring the BZA to do so in its decision-making process.
Finally, the Utility challenged the lower court’s rationale for affirming the BZA’s decision because it was based only on the finding that granting a permit would contradict the goals of the Floyd County Comprehensive Plan and claim that such finding lacked evidentiary support in the record; the plan itself was not entered into the record. Allowing the expansion would have resulted in increased traffic congestion, and a major goal of the plan was to mitigate traffic problems as much as possible. This goal was stated in other statutory provisions that were in the record, and therefore provided an evidentiary basis for the lower court’s decision.
As a result, this Court upheld the BZA’s denial of a conditional use permit.
Wastewater One, LLC v. Floyd County Board of Zoning Appeals, 2011 WL 2002314 (Ind.App. 5/24/11)
The opinion can be accessed to: http://www.in.gov/judiciary/opinions/pdf/05241101ebb.pdf
