Articles Posted in Zoning

Recently, the Indiana Court of Appeals decided whether a couple was truly aggrieved, which is a required condition to petition for judicial review of a zoning decision, when they lost their view of Lake Michigan.

The Shinalls own a hilltop property with a view of Lake Michigan visible over the roof of the Tarpos’ current home. The Odgen Dunes Zoning Code allows residential buildings to be a maximum height of thirty feet, but the Tarpos wanted a variance allowing their new house to be thirty-nine feet tall, which would obstruct the view the Shinalls have enjoyed for nearly twenty years. Despite the Shinalls’ opposition, the variance was approved. The Shinalls filed a petition for judicial review asserting they would be aggrieved if they lost the use and enjoyment of their waterfront view due to the Tarpos’ new home. Losing the view would also adversely impact the property’s value. Similarly aggrieved neighbors joined the Shinalls’ opposition efforts, but the trial court determined that a person is not aggrieved because they lose their view. The trial court dismissed the Shinalls’ petition because they lacked standing, so the Shinalls appealed.

However, Indiana Code § 36-7-4-1603(a)(2) illustrates that the Shinalls, in fact, do have standing. To have the standing required to secure judicial review of a zoning decision, a person must be aggrieved by the decision, which means the decision “infringes on a legal right” of the individual, resulting in a pecuniary injury. The Shinalls are substantially aggrieved by the loss of their view and suffer a pecuniary injury because the property value would decrease if it no longer included a waterfront view. With their standing confirmed, the Shinalls claim victory on appeal to reverse the lower court’s dismissal ruling.

On July 30, 2020, the Indiana Court of Appeals concluded that a county’s refusal to issue a document indicating that no rezoning or variance would be necessary for an applicant’s operation of a proposed waste transfer station was “arbitrary, capricious, and an abuse of discretion.” Monster Trash, Inc. v. Owen County Council, Owen County Commissioners, and Owen County Board of Zoning Appeals. In the case, Monster Trash, Inc. applied to Indiana Department of Environmental Management for a license to operate a solid waste transfer station in Owen County. As a condition of approval, applicants are required to provide a “document from a county official confirming zoning requirements are not needed for the location of the proposed facility.” Owen County’s Board of Zoning Appeals refused to provide this document to Monster Trash, Inc., thus resulting in litigation.

Owen County had an ordinance in place that prohibited waste transfer stations, which did not allow appeals for a use variance to the Owen County Board of Zoning Appeals, however, the ordinance specifically stated that waste transfer stations are not prohibited if licensed and approved by the State of Indiana. Thus, the Court of Appeals then addressed Owen County’s refusal to provide the requested document to Monster Trash. The Court concluded “zoning requirements” were not a requirement to operate this solid waste transfer station, which resulted in its conclusion that the County’s refusal to provide the document went against its own ordinance and qualified as “arbitrary, capricious, and an abuse of discretion,” pursuant to Indiana statute. Therefore, the Court determined that there was no legally justifiable reason for the County to refuse the document and its refusal prejudiced Monster Trash from obtaining a State-issued license.

James A.L. Buddenbaum is a partner of the law firm of Parr Richey Frandsen Patterson Kruse LLP with offices in Indianapolis and Lebanon, Indiana. He advises business, utility and municipal and hospital clients in the areas of corporate compliance, corporate governance, employment, real estate, commercial transactions and regulatory law as well as representing policyholders in insurance disputes. He has 30 years of experience representing rural electric and telephone cooperatives.

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