Posted by: Patricia Salkin | June 28, 2019

IN Appeals Court Finds Argument Section of Brief That Was Word-For-Word Reproduction of Large Portions of Court’s Analysis was Insufficient to Support Conditional Use Application

This post was authored by Matthew Loeser, Esq.

In 2017, the Utica Township Fire Department Incorporated, a non-profit corporation, bought property in Georgetown for use as an emergency medical services sub-station. The property, which included a house and a two-stall garage, was located in an area zoned for residential use. The Fire Department did not seek permission to operate the sub-station either before or after purchasing the property, but instead simply began using the property as a sub-station. Shortly following this, a complaint was filed with the Floyd County Plan Commission alleging that the Fire Department was operating in violation of the County’s zoning ordinance. After this complaint was filed the Fire Department submitted a conditional use application with the BZA. In this case, the Fire Department appealed the trial court’s denial of its petition for judicial review of a decision of the Floyd County Board of Zoning Appeals to deny its application.

On appeal, the Fire Department renewed its argument that the findings of fact entered by the BZA were mere recitations of the relevant statutory language, and therefore insufficient to allow review of the BZA’s action. The court noted that the argument section of the Fire Department’s brief was essentially a word-for-word reproduction of large portions of the Court’s analysis in Riverside Meadows I, LLC v. City of Jeffersonville, Indiana Board of Zoning Appeals, 72 N.E.3d 534 (Ind. Ct. App. 2017). Despite this, there was no citation to that opinion anywhere in that brief. Since the Fire Department’s argument was lifted directly from the Court’s analysis in Riverside Meadows I, there was no discussion of the BZA’s actual findings from this case, or any citations to the record on appeal.

The court next found that the Fire Department’s claim that the BZA’s findings were “merely recitations” of the controlling ordinance was entirely inaccurate. The record reflected that the BZA included case-specific reasoning in each of its five findings. Specifically, it found the property the Fire Department purchased was a dwelling, and it could be used for that purpose going forward. The court found that was reasonable rationale for denying the conditional use application and, because the Fire Department did not argue otherwise, the trial court’s holding was affirmed.

Utica Township Fire Department Incorporated v. Floyd County Zoning Board of Appeals, 2019 WL 2399952 (IN App. 6/7/2019)

 


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