Wastewater One, LLC v. Floyd County Board of Zoning Appeals
2011 Ind. App. LEXIS 929
Ind. Ct. App. Recl.2011Background
- Wastewater One, LLC and Musselman sought to expand a sewage plant in Floyd County, Indiana.
- The plant is a preexisting nonconforming use in a Residential Suburban district and serves Highlander Village and Cedar Pointe with ~123 customers.
- Musselman owned adjacent land proposed for the expansion; the plant and Musselman’s tract were joined when built.
- Applicants filed a Conditional Use Application in 2007 to expand to 100,000 gallons per day; the BZA denied in 2007 after a hearing.
- The trial court affirmed the BZA; on appeal the court reviewed jurisdiction, ordinance compliance, and evidentiary support, and affirmed the judgment.
- That decision is now before the Indiana Court of Appeals for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether BZA had jurisdiction over expansion | Musselman argued no local authority over utility siting expansion. | BZA contends §8-1-2-89(b) preserves local zoning control over wastewater facilities. | BZA had jurisdiction over the expansion. |
| Whether Ordinance Section 15.09(C)(1) complies with Indiana law | Section 15.09(C)(1) improperly mirrors use-variance standards for conditional uses. | Section 15.09(C)(1) provides discretionary standards appropriate for conditional uses. | Section 15.09(C)(1) complies with Indiana law. |
| Whether the denial of the conditional use was supported by substantial evidence | Evidence showed compliance with Section 10.02 and 15.09; remonstrators’ objections were not properly probative. | BZA properly denied based on findings under Section 15.09 and policy goals. | Trial court did not err in affirming the BZA’s denial. |
Key Cases Cited
- Holmes v. Bd. of Zoning Appeals of Jasper Cnty., 634 N.E.2d 522 (Ind. Ct. App. 1994) (Section 89(b) subjects sewage utilities to local zoning)
- Midwest Minerals, Inc. v. Bd. of Zoning Appeals of the Area Plan Dep't/Comm'n of Vigo Cnty., 880 N.E.2d 1264 (Ind. Ct. App. 2008) (BZA discretion in conditional-use cases; regulatory vs discretionary structure)
- Crooked Creek Conservation & Gun Club v. Hamilton Cnty. N. Bd. of Zoning Appeals, 677 N.E.2d 544 (Ind. Ct. App. 1997) (Board may require proving compliance with statutory criteria when discretion exists)
- Ragucci v. Metro. Dev. Comm'n of Marion Cnty., 702 N.E.2d 677 (Ind. 1998) (Nonconforming uses expansion restrictions)
- Rieth-Riley Constr. Co. v. Hendricks Cnty. Bd. of Com'rs, 868 N.E.2d 844 (Ind. Ct. App. 2007) (Rieth-Riley discussed sufficiency and specificity of development-plan criteria)