Nolan Holloway v. Grant County Area Plan Commission (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Aug 31 2020, 10:43 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Todd J. Janzen Bruce N. Elliott
Brianna J. Schroeder Marion, Indiana
Janzen Agricultural Law LLC
Indianapolis, Indiana ATTORNEY FOR INTERVENORS
Robert W. Eherenman
Haller & Colvin, P.C.
Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Nolan Holloway, August 31, 2020
Appellant-Petitioner, Court of Appeals Case No.
20A-PL-117
v. Appeal from the Grant Superior
Court
Grant County Area Plan The Honorable Warren Haas,
Commission, Judge
Appellee-Respondent, Trial Court Cause No.
27D03-1901-PL-1
Susan E. Smoker, Jon W. Mattern,
Shirley M. Mattern, Rodney L.
Kelly, Arndt Mueller, James W.
Riley, Beverly Riley, and The Riley
Family Trust,
Intervenors.
Court of Appeals of Indiana | Memorandum Decision 20A-PL-117 | August 31, 2020 Page 1 of 18
Najam, Judge.
Statement of the Case
[1] Nolan Holloway appeals the trial court’s denial of his petition for judicial
review following an adverse decision by the Grant County Area Plan
Commission (“the Plan Commission”). Holloway raises one issue for our
review, which we restate as the following two issues:
1. Whether the trial court abused its discretion when it
declined to vacate the Plan Commission’s final decision
following a violation of Indiana’s Open Door law.
2. Whether Holloway preserved for judicial review his
argument that the Plan Commission was required to
approve his final Concentrated Feeding Operation
(“CFO”) application as a ministerial act or his argument
that the Plan Commission violated his due process rights
at the final meeting on his CFO request.
[2] We affirm.
Facts and Procedural History
[3] On December 16, 2019, pursuant to Indiana Code Section 36-7-4-1614(c), the
trial court entered the following relevant findings of fact on Holloway’s petition
for judicial review from a final decision of the Plan Commission:
1. The Grant County Zoning Ordinance (“GCZO”) establishes
zoning regulations for [CFOs]. The scope and purpose of these
CFO zoning regulations clearly state that: “To minimize adverse
effects and to protect the public health and safety consideration
should be given to the many branches of the agricultural industry
and their effect on the environment. The Plan Commission
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recognizes that the county has many diverse areas where the
geologic, topographic, climatic, biological and social conditions
are significantly different and specifications for animal feeding
operations may vary depending on these conditions.” (GCZO, §
153,525(A)).
2. The GCZO expressly recognizes that: “Animal feeding
operation [(“AFO”) 1] development plan review is hereby
established in order to encourage the flexibility in the
development of land that may be necessary to permit adjustments
to changing public and private needs; to foster the ability to
provide development patterns which are more compatible with
and effective in meeting the needs; to promote the more efficient
use of land so as to preserve and enhance the natural
characteristics and unique features of property; to improve the
design, character and quality of new development; to encourage
integrated planning for the economical provision of
streets/roads/infrastructures and other utilities to reduce the
burden by more efficient development; and to conserve the value
of land.” (GCZO, § 153.525(B))[.]
3. The GCZO provides that the basis for having a CFO zoning
review is because “animal feeding operation land uses, while
generally appropriate in agricultural zoning districts have
characteristics and location impacts which may have detrimental
effect upon other land uses.” (GCZO, § 153.528).
4. The CFO zoning review includes, among other criteria, the
consideration of “[c]ompatibility of the proposed use and the site
design with the district and adjoining areas in which the use is
proposed to be located.” (GCZO, § 153.529(C)).
1
AFO and CFO appear to have been used interchangeably before the Plan Commission and the trial court,
and there is no suggestion on appeal that they are materially different for Holloway’s purposes.
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5. The GCZO also requires the CFO to show the proximity of
the CFO to “sensitive areas.” (GCZO, § 153.529(D)). The
GCZO defines “sensitive area” as “[a] site where conditions pose
specific water quality threat to one or more of the following: (1)
[a]quifers used as source of drinking water; (2) [p]ublic water
supply wells; (3) [w]ell head protection areas; (4) [d]rinking water
supply reservoirs; and (5) [a]reas requiring special protection,”
such as wetlands, karst terrain, critical habitat for endangered
species[,] or natural areas. (GCZO, § 153.527).
6. The GCZO also imposes development requirement that the
“AFO must be so located as to exercise no undue detrimental
influence upon surrounding properties which can be ensured if all
requirements are met. In addition, the AFO shall not endanger
the public welfare or safety.” (GCZO, § 153.530(B)). One of the
development requirements in the GCZO is to provide
“[c]omplete subsurface geological study of the area on which the
structures and monitoring wells will be located, including
information on soils; groundwater sampling and analysis;
hydrology; geology of the land areas used for the manure storage
or treatment facility; and a digital magnetic survey.” (GCZO, §
153.530(K)).
7. When an applicant applies for CFO zoning approval, “[a]ll
prospective applicants shall review copies of this subchapter,
which is available for inspection at the Area Plan Office to
determine the consistency of the proposal with the county’s
adopted planning rationale and whether or not the proposal is
likely to be compatible with existing and anticipated lands uses in
the vicinity of the proposal.” (GCZO, § 153.531(B)). The
“applicant is required to sign a statement to the effect that the
applicant has reviewed copies of this subchapter and the zoning
maps of this subchapter at the time the AFO application is
submitted for approval.” (GCZO, § 153.531(B)(1)).
8. The GCZO provides for a special two-step process for CFO
zoning approval. First, the Plan Commission hears a
“preliminary development plan.” Following a public hearing
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and review of the preliminary development plan, the Plan
Commission has the option of approving it, approving it with
conditions, or denying it. (GCZO, § 153.531(B)(2)(c)). The
approval of the preliminary development plan “shall not constitute
approval of the final development plan.” (GCZO, §
153.531(B)(2)(d)). Rather, it is only preliminary approval of the
“layout.” Id. The second step of the CFO approval process is the “final
development plan,” and “the Plan Commission must approve, approve
with conditions or deny” the final development plan. (GCZO, §
153.531(C)(2)(c)). The final development plan is approved by the
Plan Commission adopting findings of fact with six specific
criteria that are set forth in Section 153.537(A) through (F).
9. On July 13, 2018, Petitioner Nolan Holloway (“Petitioner”)
applied under the GCZO for zoning approval of CFO for 9,240
pigs.
10. Petitioner’s proposed CFO would generate approximately
1.92 million gallons of manure per year.
11. Petitioner certified to [the Plan Commission] that he had
“reviewed a copy of the Grant County Areawide Zoning
Ordinance” and that he was “familiar with AFO requirements
and procedures.” By making this certification, Petitioner clearly
understood the development requirements in the GCZO, which
require the “proposed use” be “compatible”; that there be “no
undue detrimental influence upon surrounding properties”; and
that the public welfare and safety were not to be endangered.
GCZO, §§ 153.529(C) and 153.530(B). Petitioner specifically
responded to these criteria to demonstrate “compatibility.”
12. In his application, [while] Petitioner stated the distance his
proposed CFO would be from a residential district, Petitioner’s
application did not include any reference to separation from
“sensitive areas,” as defined by the [GCZO]. Also, Petitioner’s
CFO application did not contain a geological study of the
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surrounding area, as required by Section 153.530(K) of the
GCZO.
13. On October 1, 2018, the Plan Commission held its
preliminary hearing on Petitioner’s CFO application.
14. At the hearing, the Plan Commission explained the two-step
process under the GCZO and explained that the Plan
Commission would make its final decision at the next meeting
and base its decision upon the criteria set forth in Section
153.537(A) through (F) of the GCZO.
15. At the October 1, 2018, public hearing, Petitioner presented
information that his CFO application satisfied the legal criteria in
the GCZO, including [that] his proposed CFO would not
endanger the public welfare or safety, would not have an undue
detrimental influence upon surrounding properties, and would
not be a risk to human health, the environment or the general
public welfare. Petitioner did not introduce any evidence
regarding sensitive areas or geological studies.
***
17. The Intervenors[ 2] introduced evidence that Petitioner’s CFO
application did not comply with the GCZO’s legal criteria. In
particular the Intervenors introduced two expert reports: one
from an MAI appraiser and the other from a board-certified
geologist, both of whom opined that the proposed location of the
CFO would be harmful to the surrounding area.
18. There were also numerous citizen emails and
correspondence received by the Plan Commission opposing
2
While the Intervenors are parties on appeal, they have joined the Plan Commission’s submissions to this
Court, and we need not separately refer to them.
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Petitioner’s CFO because it would not be compatible with the
surrounding area, would adversely affect property values, would
be otherwise detrimental to the surrounding area, and would
endanger the public health and safety.
***
20. At the conclusion of the [October 1] public hearing, the Plan
Commission voted to conditionally approve Petitioner’s zoning
application which moved the preliminary plan to the final stage
where the zoning request would be evaluated according to the
criteria set forth in Section 153.537(A) through (F) of the GCZO.
21. On December 3, 2018, the Plan Commission held its meeting
on the final review and approval of Petitioner’s CFO.
22. The Plan Commission stated that it would need to address
each of the six findings of fact in Section 153.537 of the GCZO
and that Petitioner had the burden of proving all six findings of
fact.
23. During the December 3 meeting, Petitioner was asked questions
and was the only member of the public allowed to speak to the Plan
Commission.
24. At no time during the December meeting did Petitioner ever object or
challenge the issues that were being raised or considered by the Plan
Commission, and Petitioner never objected to the GCZO’s process.
Petitioner never told the Plan Commission that they had no discretion in
reviewing his CFO approval or that it was just a ministerial act. Even
though Petitioner was given numerous times to speak at the December
meeting, he did not object to or challenge the GCZO’s development
requirements, the application of the GCZO to his property, the findings of
fact required by Section 153.537 of the GCZO, or the conduct of any
Plan Commission member at the meeting.
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25. On December 3, 2018, by a vote of 8-2, the Plan
Commission denied the final approval of Petitioner’s CFO based
on the findings of fact required by Section 153.537 of the GCZO.
26. On January 2, 2019, Petitioner filed his Verified Petition for
Judicial Review challenging the zoning decision made by the
Plan Commission.
27. On January 8, 2019, the Intervenors filed their motion to
intervene which was granted on January 16, 2019.
28. After an extension of time was granted, Petitioner timely
filed the zoning record with the Court on February 21, 2019, as
required by I.C. [§] 36-7-4-1613.
29. On April 18, 2019, the Court remanded this matter back to
the Plan Commission for the entry of proper findings of fact and,
after approving new findings of fact on May 20, 2019, the Plan
Commission filed its findings of fact on May 21, 2019.
Appellant’s App. Vol. II at 9-13 (emphases added; some citations omitted). The
court then concluded in relevant part as follows:
43. The Court has reviewed the [r]ecord and concludes
that . . . Petitioner never advised the Plan Commission that it did
not have any discretion in approving his CFO and was required
to approve it as a ministerial act.
***
45. . . . [T]he failure to raise an issue at the agency level waives
the issue for the purposes of judicial review.
46. This type of waiver also applies to constitutional issues.
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***
48. Based on the foregoing, the Court concludes that Petitioner’s
contentions and arguments are all . . . waived because Petitioner failed to
preserve these issues for judicial review . . . .
49. Furthermore, the [r]ecord reveals that the Plan Commission
proceedings were orderly, fair, judicious and complied with due
process. Petitioner was given ample time to present his case and
to make any objections to the proceedings . . . or any of the legal
criteria for his CFO zoning approval. Petitioner filed his CFO
application in July of 2018 and the Plan Commission’s final
decision was not made until December of 2018. Petitioner had
five months to make any written or oral objections to the
GCZO’s CFO zoning regulations and/or the Plan Commission
proceedings[.] Petitioner simply chose to remain silent and to not make
any such objections.
***
50. It is undisputed that the Plan Commission committed a
violation of the Indiana Open Door Law by denying certain
members of the media the opportunity to video[record] the
December 3, 2018, Plan Commission meeting. However, the
media that were denied the right to video[record] the hearing did
not bring an Open Door violation and the Court concludes that
this Open Door [v]iolation does not justify reversing the Plan
Commission’s denial of Petitioner’s CFO application.
51. I.C. [§] 5-14-1.5-7(d) provides a balancing test whether to
declare the final action of the Plan Commission void because of
an Open Door violation.
52. In this case, the Court concludes that the factors in I.C. [§] 5-14-1.5-
7(d)(1) through (3) weigh against reversing the Plan Commission’s denial
of Petitioner’s CFO.
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53. The Court concludes that the violation did not affect the
substance of the Plan Commission’s final action, did not deny or
impair meaningful access to the December meeting, and did not
prevent or impair public knowledge or understanding of the Plan
Commission’s public business. I.C. [§] 5-14-1.5-7(d)(1). The
[r]ecord demonstrates that the meeting was still held open to the
public to watch and observe as the Plan Commission deliberated
over its findings. The Plan Commission recorded the meeting,
and this recording was later available for review, inspection and
copying under the Access to Public Records statute. The Plan
Commission publicly deliberated over the six findings of fact
required by the GCZO, and this deliberation was open for the
public to observe. The violation of the Open Door Law did not
affect Petitioner’s ability to pursue or defend his CFO
application, as he was the only member of the public allowed to
engage and debate the proposed findings with members of the
Plan Commission at the December 3 meeting. Finally, Plan
Commission President, Mr. Bothwell—like he did at the October
1 hearing—provided a very thorough explanation of the GCZO
process, as well as the criteria that the Plan Commission was
required to consider under the GCZO.
54. The Court also concludes that voiding the Plan
Commission’s decision is not a necessary prerequisite to
substantial reconsideration of the CFO denial. I.C. [§] 5-14-1.5-
7(d)(2). In this case, the matter has already been remanded by
the Court back to the Plan Commission for reconsideration of its
Findings of Fact. The Plan Commission met in a public meeting
on May 3, 2019 and adopted detailed, written Findings of Fact,
and there is no evidence that the public was denied the right to
record, video, or observe the Plan Commission’s May 3 public
meeting. Again, there is no evidence of any other Open Door
Law violations for either the October 1 public hearing or the
December 3 meeting or that the Plan Commission did not
substantially comply with the Open Door Law in all other
respects.
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55. Finally, the Court concludes that the remedial benefits of
allowing the public to video record a second meeting are
outweighed by the prejudice to the public and the reliance on the
Plan Commission’s decision. I.C. [§] 5-14-1.5-7(d)(3). The
media who were denied the right to record the December
meeting did not file a complaint with the Public Access
Counselor and did not bring any action against the Plan
Commission for the Open Door violation. Numerous members
of the public, including all of the citizens and property owners in
the surrounding area who opposed Petitioner’s CFO, have relied
on the Plan Commission’s decision to deny the CFO. The
Intervenors and the numerous Grant County citizens who
opposed Petitioner’s CFO had nothing to do with the violation of
the Open Door Law and spent long hours organizing, collecting
petitions, sending letters to the Plan Commission and attending
long Plan Commission meetings on Petitioner’s CFO. To
remand this matter to back to the Plan Commission for another
meeting appears to be a useless act as no new evidence can be
admitted into the [r]ecord and the Plan Commission’s decision
would not change. Again, the Open Door violation in no way
affected Petitioner’s ability to present and defend his application;
the meeting was already being recorded and transcribed and
there is an accurate record of the Plan Commission’s
deliberations; and the meeting was otherwise open to the public
and complied with the Open Door law.
56. The Court concludes that the Open Door Law violation had
nothing to do with the Plan Commission’s ultimate decision to
deny Petitioner’s CFO application and the Plan Commission was
very open and transparent in explaining how it was conducting
its public business and how it reached its zoning decision.
***
78. Petitioner does [not] contend that the Plan Commission’s
Findings of Fact are unsupported by substantial evidence and
does not dispute the underlying factual basis of the Plan
Commission’s Findings of Fact.
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Id. at 16-18, 22 (emphases added; citations omitted); see also id. at 19-20
(concluding again that Holloway had waived his claims of due process errors)
and id. at 22 (concluding again that Holloway had waived his claim that the
Plan Commission was required to approve his final request as a ministerial act
based on its preliminary approval).
[4] Based on its findings and conclusions, the court denied Holloway’s petition for
judicial review and affirmed the Plan Commission’s final decision to deny his
CFO request. This appeal ensued.
Discussion and Decision
Standard of Review
[5] Holloway appeals the trial court’s denial of his petition for judicial review over
the Plan Commission’s final decision. Indiana Code Section 36-7-4-1614(d)
(2020) provides that a reviewing court, whether the trial court or this Court,
shall grant relief . . . only if the court determines that a person
seeking judicial relief has been prejudiced by a zoning decision
that is:
(1) arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law;
(2) contrary to constitutional right, power, privilege, or
immunity;
(3) in excess of statutory jurisdiction, authority, or limitations, or
short of statutory right;
(4) without observance of procedure required by law; or
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(5) unsupported by substantial evidence.
A decision is arbitrary and capricious if it is “patently unreasonable” or “made
without consideration of the facts and in total disregard of the circumstances
and lacks any basis which might lead a reasonable person to the same
conclusion.” Lockerbie Glove Factory Town Home Owners Ass’n, Inc. v. Indianapolis
Historic Pres. Comm’n, 106 N.E.3d 482, 488 (Ind. Ct. App. 2018) (quotation
marks omitted), trans. denied. A decision is unsupported by substantial evidence
if there is no “relevant evidence which a reasonable mind might accept as
adequate to support a conclusion.” Id. The party seeking judicial review has
the burden of demonstrating the invalidity of a plan commission’s decision.
I.C. § 36-7-4-1614(a).
[6] When we review a plan commission’s decision, we may not reweigh the
evidence or reassess the credibility of the witnesses. Id. We must accept the
facts as found by the plan commission, but we review questions of law de novo.
Id. We presume the determination of a plan commission with expertise in a
given subject is correct. Id. at 488-89.
[7] On appeal, Holloway argues that the trial court erred in denying his petition
because the Plan Commission’s decision against him was arbitrary, capricious,
or contrary to law. In particular, he asserts: (1) that the trial court abused its
discretion when it did not vacate the Plan Commission’s decision after the Plan
Commission violated Indiana’s Open Door law; and (2) that the Plan
Commission’s final decision was arbitrary, capricious, or contrary to law
because he satisfied the conditions attached to the preliminary approval and
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because the Plan Commission denied him an opportunity to respond to new
evidence presented at the meeting for final approval. We address each of
Holloway’s arguments in turn.
Issue One: Whether the Trial Court Abused its Discretion
when it Declined to Vacate the Plan Commission’s Decision
[8] We first consider Holloway’s argument that the trial court erred when it did not
vacate the Plan Commission’s decision following an Open Door violation. We
initially note, as the trial court did, that there is no dispute that the Plan
Commission’s final meeting on Holloway’s CFO request was in violation of
Indiana’s Open Door law when it excluded third-party media from recording
the meeting. 3 The only dispute on appeal is whether the trial court entered an
erroneous remedy for that violation.
[9] As we have explained:
Whether to declare void any policy, decision, or final action
taken by a public agency in violation of the Open Door Law is a
matter left to the trial court’s discretion. Among the factors the
trial court considers in reaching this determination are: 1) the
extent to which the violation affected the substance of the action,
denied or impaired access to any meetings that the public had a
right to observe, and prevented or impaired public knowledge or
understanding; 2) whether voiding of the action is a necessary
prerequisite to a substantial reconsideration of the subject matter;
and 3) the balancing of the remedial benefits gained by
effectuating the public policy of the state declared in the
3
We agree with Holloway that “[t]here is no requirement that the ousted media file a claim” under the Open
Door law for a violation to be found. Appellant’s Br. at 16. But we disagree with Holloway’s suggestion that
the trial court said otherwise.
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“Purpose” section of the Open Door Law against the prejudice
likely to accrue to the public if the action is voided (including the
extent to which persons have relied upon the validity of the
challenged action).
Frye v. Vigo County, 769 N.E.2d 188, 196 (Ind. Ct. App. 2002); see also I.C. § 5-
14-1.5-7(d) (enumerating those same factors for the trial court to consider in
determining the proper remedy for an Open Door violation).
[10] Holloway’s argument on this issue disregards our standard of review and
appears to be premised on the incorrect assumption that we will engage in a de
novo review of the relevant factors. We will not do so. While we do not
approve of the Plan Commission’s obvious Open Door violation, the trial court
considered the statutory factors and the evidence underlying each factor,
Holloway does not challenge the court’s findings on appeal, and he does not
assert that the court erred as a matter of law in its finding of any factor or in its
balancing of the factors. 4 Accordingly, we cannot say that the trial court’s
remedy for the Open Door violation was an abuse of the court’s discretion. The
trial court was not required to vacate the Plan Commission’s final decision, and
we will not reweigh the statutory factors on appeal as Holloway requests. We
affirm the trial court’s judgment on this issue.
4
Holloway asserts that the trial court found that the Plan Commission had “cured” the Open Door
violation, and he asserts that such a finding is contrary to the Open Door law. See Appellant’s Br. at 16. But
nowhere in the trial court’s judgment did the court find that the Plan Commission had “cured” the Open
Door violation. Rather, the court’s judgment is clear that it considered the evidence underlying the statutory
factors and then balanced those factors to determine the proper remedy for the violation.
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Issue Two: Whether Holloway Preserved for Judicial Review
His Arguments that the Plan Commission was Required to
Approve his Final Request as a Ministerial Act and Whether
the Plan Commission Violated his Due Process Rights
[11] Holloway also asserts on appeal that the Plan Commission’s final decision to
deny his CFO request was arbitrary and capricious because, once the Plan
Commission approved Holloway’s preliminary development plan subject to
conditions, and he satisfied those conditions, the final approval of his CFO
request should have been a mere ministerial act of the Plan Commission. He
also asserts that the Plan Commission violated his due process rights when it
did not give him an opportunity to respond to evidence presented at the final
meeting.
[12] But Holloway was present and, contrary to his assertions on appeal, given an
opportunity to speak at the December 3 meeting. Indeed, the trial court
expressly found that Holloway was permitted to speak at that meeting, but “he
simply chose to remain silent . . . .” Appellant’s App. Vol. II at 17. Holloway
does not assert that the trial court’s findings are not supported by substantial
evidence. Instead—in his Reply Brief—he asserts that objecting was not
required here because doing so would have been a “dramatic interruption” of
the Plan Commission’s proceedings, uncivil, and “a public disturbance.” Reply
Br. at 10-11. We reject Holloway’s argument that he should be excused from
presenting his arguments and objections to the Plan Commission on his theory
that doing so might have been seen as rude.
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[13] As the trial court found and concluded, Holloway’s failure to raise these
arguments to the Plan Commission at the final meeting results in his waiver of
these arguments. Indiana Code Section 36-7-4-1610 expressly says:
A person may obtain judicial review of an issue that was not
raised before the board, only to the extent that:
(1) the issue concerns whether a person who was required to be
notified by this chapter or other law of a board hearing was
notified in substantial compliance with this chapter or other law;
or
(2) the interests of justice would be served by judicial resolution
of an issue arising from a change in controlling law occurring
after the zoning decision.
Neither of those two exceptions to the rule of waiver applies to Holloway’s
arguments here.5 See Lockerbie Glove Factory, 106 N.E.3d at 489 (holding that
the petitioner’s failure to object to alleged commissioner bias at the agency level
resulted in a waiver of the issue on judicial review). Accordingly, Holloway’s
arguments are not properly before us, and we cannot consider them.
Conclusion
[14] In sum, we affirm the trial court’s denial of Holloway’s petition for judicial
review.
5
Moreover, as the trial court found, the Grant County Zoning Ordinance plainly provides a “two-step
process for CFO zoning approval” and “[t]he approval of the preliminary development plan shall not
constitute approval of the final development plan.” Appellant’s App. Vol. II at 10 (quotation marks omitted).
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[15] Affirmed.
Bradford, C.J., and Mathias, J., concur.
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