122 N.E.3d 881
Ind. Ct. App.2019Background
- Essroc Cement operates a long-standing cement plant in Clark County zoned M2 (Heavy Industrial) and sought to switch kiln fuel from coal to liquid waste-derived fuels (LWDF), which are RCRA-regulated hazardous liquids.
- Essroc requested a staff assurance letter (Dec 2014); Plan Commission staff issued a private letter (Jan 26, 2015) stating LWDF use would be permitted as a matter of right in M2 and would not require rezoning or a variance.
- After Essroc applied to IDEM for RCRA/Title V permit modifications, new Plan Commission leadership issued a second staff letter (June 27, 2016) withdrawing the first letter and stating Essroc must rezone to M3 or obtain a variance to receive/store/treat/burn LWDF.
- Concerned citizens appealed; the Clark County Board of Zoning Appeals (CCBZA) held a public hearing and affirmed the second staff determination, concluding burning/storage/processing of hazardous waste is permitted only in M3, not M2.
- Essroc sought judicial review; the trial court affirmed the CCBZA. Essroc appealed to the Court of Appeals, raising zoning-interpretation, accessory-use, staff-authority, notice/hearing, equitable-estoppel, and federal-preemption issues.
Issues
| Issue | Essroc's Argument | CCBZA/County's Argument | Held |
|---|---|---|---|
| 1. Does CCZO permit burning LWDF in M2 or only M3? | Essroc: LWDF use is a permitted M2 use (fits within existing permitted uses for cement production). | CCBZA: Storage/processing/recycling/burning of hazardous waste is a use allowed only in M3; M2 does not list hazardous-waste burning. | Held: Use (receive/store/process/recycle/burn LWDF) is a prohibited M2 use and permitted only in M3. |
| 2. Is burning LWDF an accessory use to Essroc’s cement operation? | Essroc: Doctrine of accessory use allows secondary uses that do not change the character of primary permitted use. | CCBZA: CCZO enumerates hazardous-waste activities only in M3; expressio unius excludes those uses from other districts. | Held: Accessory-use argument rejected; hazardous-waste activities are permitted only in M3. |
| 3. Could Plan Commission staff revoke its earlier informal determination by issuing a second staff letter? | Essroc: First staff letter was a binding assurance and could not be revoked without consequence. | County: Staff may correct an erroneous staff determination where it was legally incorrect. | Held: Staff had authority to revoke the earlier non-public letter because the first letter was legally erroneous (error of law) and correction was permissible. |
| 4. Was Essroc entitled to notice and a public hearing before staff revoked the first letter? | Essroc: Revocation deprived it of due process; staff should have provided notice/hearing. | County: No CCZO provision requires public notice/hearing for staff opinion letters; only appeals to BZA require notice/hearing. | Held: No notice or public hearing required for staff to issue a corrective staff opinion; Essroc had no right to notice before the second staff letter. |
| 5. Is CCBZA equitably estopped from requiring rezoning because Essroc spent money relying on the first letter? | Essroc: Spent over $1.2M in reliance on staff assurance; estoppel should bar enforcement. | CCBZA: Estoppel issue was not raised before the Board and thus waived; governments generally immune from estoppel by officials. | Held: Estoppel claim waived for failure to raise before administrative agency; not considered on judicial review. |
| 6. Should trial-court findings about federal preemption be stricken because preemption was not before the Board? | Essroc: Preemption by federal RCRA was not properly before the tribunal. | CCBZA/Sierra Club: Issue was argued and addressed below. | Held: Preemption issue was not raised before the administrative board and is not cognizable on judicial review; trial court erred to the extent it reached substantive preemption findings. |
Key Cases Cited
- Flying J., Inc. v. City of New Haven, 855 N.E.2d 1035 (Ind. Ct. App. 2006) (rules for construing zoning ordinances and accessory-use analysis)
- Hoosier Outdoor Advert. Corp. v. RBL Mgmt., Inc., 844 N.E.2d 157 (Ind. Ct. App. 2006) (deference given to administrative agency interpretation when reasonable)
- ANR Pipeline Co. v. Indiana Dep’t of State Revenue, 672 N.E.2d 91 (Ind. Tax Ct. 1996) (administrative bodies may rescind a prior determination only to correct an actual error of law; change of reasoning is not enough)
- Cress v. State, 152 N.E. 822 (Ind. 1926) (power to undo an act is not implied from grant of power to do the act)
- Civil City of Indianapolis v. Ostrom Realty & Const. Co., 176 N.E. 246 (Ind. Ct. App. 1931) (permits/licenses do not authorize actions contrary to ordinance)