Utica Township Fire Department Incorporated v. Floyd County Board of Zoning Appeals

FILED
Jun 07 2019, 8:32 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Larry O. Wilder Keith D. Mull
Jeffersonville, Indiana New Albany, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Utica Township Fire June 7, 2019
Department Incorporated, Court of Appeals Case No.
Appellant-Petitioner, 18A-PL-2725
Appeal from the
v. Floyd Circuit Court
The Honorable
Floyd County Board of Zoning J. Terrence Cody, Judge
Appeals, Trial Court Cause No.
Appellee-Respondent 22C01-1710-PL-1405
Vaidik, Chief Judge.
Case Summary
[1] Utica Township Fire Department Incorporated (“Fire Department”) appeals
the trial court’s denial of its petition for judicial review of a decision of the
Floyd County Board of Zoning Appeals (“BZA”). We affirm.
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Facts and Procedural History
[2] In June 2017, the Fire Department, a non-profit corporation, bought the
property at 1436 W. Knable Road in Georgetown for use as an emergency
medical services sub-station. The property, which includes a house and a two-
stall garage, is located in an area zoned for residential use. However, the Fire
Department did not seek permission to operate the sub-station either before or
after purchasing the property. Instead, it simply began using the property as a
sub-station.
[3] Shortly thereafter, “a complaint was filed with the Floyd County Plan
Commission asserting that [the Fire Department] was operating in violation of
the County’s zoning ordinance.” Appellant’s Br. p. 6. Only then did the Fire
Department file a Conditional Use Application with the BZA. The Floyd
County Zoning Ordinance, Section 15.09, provides that the BZA must approve
such an application if:
a. The conditional use will not be injurious to the public health,
safety, moral, and general welfare of the community.
b. The use and value of area adjacent to the property will not be
adversely affected.
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c. The need for the conditional use does not result from [1] any
conditions, unusual or peculiar to the subject property.
d. The strict application of the terms of the Floyd County Zoning
Ordinance would result in an unnecessary hardship in the use of
the property.
e. The approval of the conditional use will not contradict the
goals and objectives of the Floyd County Comprehensive Plan.
Appellant’s App. Vol II p. 78.
[4] After holding a hearing on the application, the BZA found in favor of the Fire
Department as to the first, second, third, and fifth requirements but not the
fourth:
1. The conditional use will not be injurious to the public health,
safety, morals, and general welfare of the community because:
the ambulance service is a community asset that travels all
county roads, legally.
2. The use and value of the area adjacent to the property will not
be adversely affected because: the [Fire Department] will
maintain the property.
1
We assume the inclusion of the phrase “does not result from” was a drafting error. The statute on which
the ordinance appears to be based, Indiana Code section 36-7-4-918.4, requires a finding that “the need for
the variance arises from some condition peculiar to the property involved[.]” (Emphasis added). In any
event, this conflict between the ordinance and the statute is irrelevant to our ultimate resolution of the Fire
Department’s appeal.
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3. The need for the conditional use does not result from any
conditions, unusual, or peculiar to the property itself because:
instead, the need is dictated by the ordinance itself.
4. Strict application of the terms of the Floyd County Zoning
Ordinance will not result in an unnecessary hardship in the use
of the property because: it is a home & can be occupied &
utilized as one in the future[.]
5. Approval of the conditional use will not contradict the goals
and objectives of the Floyd County Comprehensive Plan
because: we all need ambulance services and they are permitted
and welcomed other places.
Id. at 74 (emphasis added).2 Because not all five requirements were satisfied,
the BZA denied the Fire Department’s application.
[5] The Fire Department then filed a petition for judicial review of the BZA’s
decision. In its brief in support of the petition, the Fire Department argued that
“[t]he findings of fact entered by the BZA are merely recitations of the relevant
statutory language and therefore insufficient to allow review [of] the BZA’s
action.” Memorandum in Support of Petition on Appeal, Case No. 22C01-1710-PL-
2
The BZA’s finding on the third requirement—that “[t]he need for the conditional use does not result from
any conditions, unusual, or peculiar to the property itself because: instead, the need is dictated by the
ordinance itself,” Appellant’s App. Vol. II p. 74 (emphasis added)—was technically favorable to the Fire
Department under Section 15.09(C)(1)(c) of the Floyd County Zoning Ordinance, but, as discussed in note 1,
that portion of the ordinance conflicts with Indiana Code section 36-7-4-918.4. Again, that conflict does not
affect our analysis of the Fire Department’s appeal.
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1405 (filed July 15, 2018). The trial court disagreed with the Fire Department
and affirmed the BZA’s decision.
[6] The Fire Department now appeals.
Discussion and Decision
[7] On appeal, the Fire Department renews its argument that “[t]he findings of fact
entered by the BZA are merely recitations of the relevant statutory language
and therefore insufficient to allow review of the BZA’s action.” Appellant’s Br.
p. 8. Before addressing that claim, we note that the argument section of the
Fire Department’s brief is essentially a word-for-word reproduction of large
portions of this 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). Nowhere in the brief, however, is there a citation to that opinion. We
have condemned this type of wholesale appropriation before. See Keeney v.
State, 873 N.E.2d 187, 190 (Ind. Ct. App. 2007) (reprimanding appellate
attorney who “merely transplanted” text of Massachusetts federal court order
into her brief “as if it were her own work”).
[8] Because the Fire Department’s argument was lifted directly from our analysis in
Riverside Meadows I, there is no discussion of the BZA’s actual findings in this
case. Given that the Fire Department’s only contention on appeal is that the
BZA’s findings are insufficient, this omission is problematic. Moreover, the
argument does not include any citations to the record on appeal. This is a
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violation of Appellate Rule 46(A)(8)(a).3 As our Supreme Court has observed,
“A brief is not to be a document thrown together without either organized
thought or intelligent editing on the part of the brief-writer. Inadequate briefing
is not, as any thoughtful lawyer knows, helpful to either a lawyer’s client or to
the Court.” Frith v. State, 263 Ind. 100, 325 N.E.2d 186, 189 (1975).
[9] In any event, Riverside Meadows I is easily distinguishable from this case.4
There, the Jeffersonville Board of Zoning Appeals denied an application for a
use variance and entered findings that literally mirrored the language of the
applicable zoning ordinance. Riverside Meadows I, 72 N.E.3d at 536-39. We
explained that such findings are insufficient to permit meaningful judicial
3
The Fire Department’s statement of the case and statement of facts do not include any citations to the
record either, in violation of Appellate Rule 46(A)(5) and (6)(a). The reason for this, we gather, is that the
Fire Department’s brief on appeal is for the most part a replica of the brief it filed in the trial court, which
itself was devoid of any citations to the BZA record. See Memorandum in Support of Petition on Appeal, Case
No. 22C01-1710-PL-1405 (filed July 15, 2018).
4
In his eagerness to borrow from Riverside Meadows I, the Fire Department’s attorney failed to recognize the
distinction between a “use variance” and a “conditional use.” Riverside Meadows I involved the former, as we
noted in the first sentence of our analysis: “In the present case, Riverside sought a use variance from the
zoning ordinance.” 72 N.E.3d at 538. This case, on the other hand, involves an application for a conditional
use. Appellant’s App. Vol. II p. 80. However, except for the name of the appellant, the first sentence of
counsel’s “analysis” is identical to that sentence from Riverside Meadows I: “In the present case, Utica sought a
use variance from the zoning ordinance.” Appellant’s Br. p. 8 (emphasis added). As we have explained:
A conditional use is not a variance. The primary difference between the two is that a
conditional use is not an exceptional use. A conditional use is a desirable use which is
attended with detrimental effects which require that certain conditions be met before it
can be established at a given location. While a variance is a departure from the terms of
an ordinance, a conditional use is a permitted use under the terms of the ordinance, so
long as the enumerated conditions are met.
Eberhart v. Ind. Waste Sys., Inc., 452 N.E.2d 455, 460 (Ind. Ct. App. 1983) (citations omitted). The Floyd
County Zoning Ordinance contains separate procedures for conditional uses (Section 15.09) and use
variances (Section 15.11).
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review of the BZA decision, and we remanded the matter to the BZA for the
entry of more detailed findings. Id. at 539-40.
[10] Here, the Fire Department’s claim that the BZA’s findings were “merely
recitations” of the controlling ordinance is simply inaccurate. As discussed
above, the BZA included case-specific reasoning in each of its five findings. See
Appellant’s App. Vol. II p. 74. Most importantly, regarding the fourth
requirement, the BZA found that “[s]trict application of the terms of the Floyd
County Zoning Ordinance will not result in an unnecessary hardship in the use
of the property because: it is a home & can be occupied & utilized as one in
the future[.]” Id. (emphasis added). In short, the property the Fire Department
purchased is a dwelling, and it can be used as such going forward. That strikes
us as an eminently reasonable rationale for denying the conditional use
application, and the Fire Department does not argue otherwise. Instead, it rests
on its assertion that the BZA’s findings just track the language of the Floyd
County ordinance. Because that assertion is wrong, the Fire Department’s
appeal necessarily fails.
[11] Affirmed.
Kirsch, J., and Altice, J., concur.
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