Posted by: Patricia Salkin | April 18, 2019

IN Appeals Court of Indiana Holds Firing Concrete Kiln with Liquid Waste Derived Fuels was Not an Accessory Use

This post was authored by Matthew Loeser, Esq.

 

Essroc Cement Corporation operated in Clark County, Indiana, on land zoned M2 for Heavy Industrial Use. Essroc had previously used coal to power its concrete production, but in the decade prior to this action Essroc began considering firing its concrete kiln with liquid waste derived fuels (“LWDF”). In 2014, Essroc requested an informal determination from the Clark County Plan Commission regarding the permissibility of burning LWDF on land zoned M2. In late 2015, the executive director of the Plan Commission gave Essroc a private letter indicating the burning of LWDF was permitted in an area zoned M2. Approximately seventeen months later, Plan Commission staff issued a second private letter to Essroc that revoked the first private letter and indicated Essroc would need to obtain a variance or re-zone its property to an M3 district if it desired to burn LWDF. Essroc appealed that second private letter to the Clark County Board of Zoning Appeals (“the CCBZA”), which held a public hearing and determined Essroc’s proposed use of LWDF was prohibited in an area zoned M2. The trial court affirmed the CCBZA’s decision.

 

On appeal, Essroc first contended that “by the clear and unequivocal terms of the provisions of the Zoning Ordinance, the receiving and storage of waste, in and of itself, is insufficient to mandate rezoning to M3.” The record reflected, however, that Essroc did not intend to simply receive and store LWDF, but rather to pump the stored LWDF to its kiln and burn it as fuel in the kiln. The court found that Essroc’s plan to store LWDF, pump it to the kiln, and burn it as fuel fit squarely within the intention for which the M3 district was created: “for the disposal, destruction, or recycling of toxic chemicals … and other forms of hazardous waste whether through incineration, land filling, or other mechanical, chemical, or technological means.” As such, the court affirmed the CCBZA’s findings that Essroc’s burning of hazardous waste was prohibited in the CCZO’s M2 district but permitted in its M3 district.

 

Essroc next argued that its proposed use of LWDF should be “permitted as an accessory use as a matter of law.” As stated above, the court determined that the CCZO set forth the storage, processing, and recycling of hazardous wastes was a use allowed in only the M3 district. Accordingly, this use could not be permitted in any other zoning district.

 

Lastly, as to the Plan Commission’s authority to revoke a prior staff-issued, non-public, informal zoning determination letter, the court noted that the Plan Commission staff revoked the first letter to Essroc based on an actual error of law. Since Essroc’s proposal to receive, store, process, and burn LWDF Hazardous Waste could be permitted only on land zoned M3 under the CCZO, the Plan Commission staff’s first letter to Essroc was erroneous as a matter of law. Thus, the staff had the authority to correct its earlier, legally erroneous decision. Additionally, Essroc failed to set forth any section of the CCZO that required public notice or a hearing before Plan Commission staff produce an opinion letter. As staff opinions were produced without public hearing following notice, Essroc was unable to demonstrated error in staff’s issuance of the second letter without a public hearing or notice. As all of Essroc’s assertions of CCB2A error were rejected, the court affirmed the decision of the CCBZA.

 

Essroc Cement Corp. v. Clark County Board of Zoning Appeals, 2019 WL 1716776 (IN App. 4/18/2019)


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