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ATTORNEYS FOR APPELLANT Robert M. Frye Indianapolis, Indiana Scott R. Sikkenga Kalamazoo, Michigan

ATTORNEYS FOR APPELLEES METROPOLITAN BOARD OF ZONING APPEALS OF MARION COUNTY, INDIANA, DIVISION ONE AND CITY OF INDIANAPOLIS James B. Osborn Ian Stewart Indianapolis, Indiana

ATTORNEYS FOR APPELLEE KITE REALTY GROUP, L.P. Michael A. Wukmer Melanie E. Harris Brian E. Bailey Indianapolis, Indiana Jun 30 2008, 2:41 pm ______________________________________________________________________________

FILED
of the supreme court, court of appeals and tax court

In the

CLERK

Indiana Supreme Court
No. 49S05-0711-CV-513 600 LAND, INC.,

______________________________________________________________________________

Appellant (Defendant below), v. METROPOLITAN BOARD OF ZONING APPEALS OF MARION COUNTY, INDIANA, DIVISION ONE AND CITY OF INDIANAPOLIS, KITE REALTY GROUP, L.P., Appellees (Plaintiffs below). _________________________________ Appeal from the Marion County Superior Court, Civil Div., No. 49F12-0407-PL-1912 The Honorable Michael D. Keele, Judge _________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 49A05-0604-CV-223 _________________________________ June 30, 2008 Sullivan, Justice.

600 Land, Inc. is the owner of land in Marion County on which it wants to build a "solid waste transfer station." The County contends that a special exception from the zoning ordinance is required. The land is zoned to permit a "motor truck terminal" to be operated without a special use permit. 600 Land's proposed use qualifies as a "motor truck terminal" because "[a] terminal may include facilities for the temporary storage of loads prior to transshipment."

Background

600 Land, Inc. purchased an 8-acre parcel of land in Marion County with the intent to develop it as a "solid waste transfer station" and recycling facility. Trucks bring loads of solid waste and recyclables to a "transfer station," a building where the trucks are unloaded, the loads stored temporarily, and then re-loaded onto larger trucks to be taken to incinerators, landfills, or recycling facilities. Marion County has adopted an Industrial Zoning Ordinance (IZO) and under the IZO, 600 Land's property is zoned as I-4-S, the heaviest industrial classification. The IZO does not explicitly list a "solid waste transfer station" as a permitted or prohibited use in an I-4-S district.

The Indianapolis Department of Metropolitan Development (DMD) is responsible for administering the IZO and its staff advised 600 Land that it was required to file a petition for a special exception from the IZO in order to operate the proposed transfer station. 600 Land filed a petition for a special exception with the Marion County Board of Zoning Appeals (BZA), as provided for under the IZO and as advised by the DMD staff. A number of area property and business owners remonstrated against the proposed special exception, including Kite Realty Group, L.P. (Kite) and Sybaris Club of Indianapolis, LLC (Sybaris), who are intervenors in this appeal. 1 The BZA denied the petition after a public hearing. 600 Land then appealed the BZA's denial to the trial court. 600 Land subsequently amended its appeal from the BZA's decision to include a request for a declaratory judgment that the IZO did not require it to obtain a special exception at all because its proposed use qualified as a "motor truck terminal," an explicitly permitted land use in a district zoned I-4-S.

1

Kite and Sybaris were intervenors on appeal; however, Sybaris has not joined in the petition to transfer.

2

The trial court held that (1) the IZO did require 600 Land to obtain a special use exception for this use and (2) affirmed the denial of the special exception. 600 Land appealed. The Court of Appeals (1) affirmed the trial court's determination that a special exception was required, but (2) reversed the BZA's denial of the special exception on grounds that its findings were unsupported by the evidence. 600 Land, Inc. v. Metro. BZA of Marion County, 863 N.E.2d 339, 356 (Ind. Ct. App. 2007). The BZA and Kite petitioned for, and we granted, transfer, 878 N.E.2d 218 (Ind. 2007) (table), thereby vacating the opinion of the Court of Appeals. Ind. Appellate Rule 58(A).

Discussion

I

Under the Indiana Rules of Appellate Procedure, when the Supreme Court grants transfer, as we have done in this case, the case stands before us in the same procedural posture as it did when initially filed in the Court of Appeals: this Court has "jurisdiction over the appeal and all issues as if originally filed in the Supreme Court." App. R. 58(A). In this appeal, the BZA and Kite seek transfer on grounds that the Court of Appeals incorrectly reversed the BZA's decision denying 600 Land's request for a special exception. 600 Land has not sought transfer from the Court of Appeals determination that a special exception was required. But because the effect of a grant of transfer is to place all issues initially raised in the Court of Appeals before this Court, both the question of whether a special exception was required and the question of whether the special exception was properly denied are before us.

In the Court of Appeals, Kite (but neither the BZA nor Sybaris) argued that the issue of whether a special exception was required was not properly before the court, contending that 600 Land had conceded the point by filing a petition for a special exception in the first place and, in any event, that 600 Land had waived the right to appellate review of the issue by not seeking a determination on the point from the BZA or, for that matter, until amending its complaint in the trial court.

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We acknowledge that there is some authority from the Court of Appeals in support of Kite's position. 2 See Ayers v. Porter County Plan Comm'n, 544 N.E.2d 213, 217 n.7 (Ind. Ct. App. 1989) (dicta); Children's Home of S.E. Ind., Inc. v. Area Planning Comm'n of Franklin County, 486 N.E.2d 1048, 1051 (Ind. Ct. App. 1985). But for several reasons we have decided to resolve 600 Land's claim on the merits.

First, 600 Land had been advised by the DMD staff that in its view a special exception was required. This gave 600 Land three choices if it wanted to proceed with the project. It could commence work and face injunctive action initiated by the government. 3 It could file a

declaratory judgment action in the trial court. Or it could follow the advice of the DMD staff and seek a special exception from the BZA. Given these circumstances, 600 Land took what seems even in retrospect to be the most practical approach, the one that imposed the least burden on the legal system.

Second, we perceive absolutely no prejudice to the BZA or the intervenors from the way things evolved. They had a full and fair opportunity to litigate the issue both in the trial court and Court of Appeals (and here had they chosen to do so). Similarly, because the issue of whether a special exception was required is a question of law, Flying J., Inc. v. City of New Haven Bd. of Zoning Appeals, 855 N.E.2d 1035, 1039 (Ind. Ct. App. 2006), trans. denied, any determination that the BZA might have made on the subject would have been reviewed de novo by the trial court, the Court of Appeals, and this Court.

Third, we find nothing in the record that suggests that the BZA or the intervenors objected in the trial court to 600 Land seeking a declaratory judgment and, as noted above, neither the BZA nor Sybaris contended in the Court of Appeals that it was not available for review. Nor does the BZA or Kite renew the point in their transfer petition, though we

acknowledge that the issue did come up in oral argument. Given this history, we perceive at

2

The Court of Appeals found it unnecessary to address Kite's contention because it resolved the issue in Kite's favor. 600 Land, Inc., 863 N.E.2d at 344 n.3. In all likelihood, work would not be able to be commenced because no work permits would be granted.

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least some acquiescence to having the issue resolved on the merits, as both courts below have done.

II

Turning to the issue of whether 600 Land's proposed waste transfer station is land use permitted by the IZO, we begin by observing that Section 1.00 of the IZO establishes four levels of industrial zoning for suburban areas from I-1-S (least intense industrial uses) to I-4-S (most intense). As noted, 600 Land's property is zoned I-4-S. Section 2.01 lists the various uses that are permitted within these four levels of industrial districts. Waste transfer stations are not specifically referenced in Section 2.01 as a permitted use. But "motor truck terminals" are permitted uses in the heaviest industrial suburban district (I-4-S) without a special exception. 4

The IZO's definition of "motor truck terminal" consists of two separate sentences:

"[a] building or area in which trucks, including tractor or trailer units are parked, stored, or serviced, including the transfer, loading or unloading of goods. A terminal may include facilities for the temporary storage of loads prior to transshipment."

IZO,

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