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FILED
FOR PUBLICATION
Apr 30 2010, 9:14 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANTS: KIM FERRARO Legal Environmental Aid Foundation of Indiana, Inc. Valparaiso, Indiana

ATTORNEYS FOR APPELLEES: R. GORDON LORD NATHANIEL M. JORDAN Yoder, Ainlay, Ulmer & Buckingham, LLP Goshen, Indiana JAMES W. KOLBUS DONALD R. SHULER Barkes, Kolbus & Rife, LLP Goshen, Indiana

IN THE COURT OF APPEALS OF INDIANA
JOYCE BELLOWS, EDGAR BELLOWS, BARBARA ) STUTSMAN, and WAYNE STUTSMAN, ) ) Appellants-Petitioners, ) ) vs. ) ) BOARD OF COMMISSIONERS OF THE ) COUNTY OF ELKHART and PLAN COMMISSION ) OF ELKHART COUNTY, ) ) Appellees-Respondents. )

No. 20A03-0909-CV-412

APPEAL FROM THE ELKHART CIRCUIT COURT The Honorable Terry C. Shewmaker, Judge Cause No. 20C01-0810-PL-75

April 30, 2010 OPINION - FOR PUBLICATION NAJAM, Judge

STATEMENT OF THE CASE Joyce and Edgar Bellows ("the Bellowses") and Barbara and Wayne Stutsman ("the Stutsmans") appeal the trial courts order dismissing their three-count petition for writ of certiorari and complaint for declaratory judgment ("the complaint") against the Board of Commissioners of the County of Elkhart ("the Board") and the Plan Commission of Elkhart County ("the Plan Commission"). The Bellowses and Stutsmans raise four issues for our review, which we restate as the following three issues: 1. Whether the trial court properly dismissed Count I of the complaint for failure to state a claim upon which relief could be granted. Whether the trial court properly dismissed Count II for lack of subject matter jurisdiction. Whether the trial court properly dismissed Count III because the Bellowses and Stutsmans lack standing to seek a declaratory judgment.

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We affirm. FACTS AND PROCEDURAL HISTORY On October 2, 2008, the Bellowses and Stutsmans filed the complaint in the Elkhart Circuit Court. The complaint stated as follows: COUNT I--GENERAL ALLEGATIONS 1. [The Board] is the legislative body with authority to adopt zoning ordinances for Elkhart County . . . including the power to provide for planned unit development ("PUD") through adoption and amendment of zoning ordinances, including PUD district ordinances . . . . 2. [The Plan Commission] is the Advisory Plan Commission for Elkhart County which makes recommendations to the Board on petitions for rezoning and zoning map changes . . . . 2

3. K.C. Industries, LLC, is the owner and developer of certain real estate located at 29861 U.S. Highway 33, in the City of Elkhart, County of Elkhart and State of Indiana ("the subject real estate" or "the site") upon which VIM Recycling, Inc. ("VIM") conducts certain activities including outdoor storage, grinding and mixing of regulated solid wastes including gypsum, industrial scrap wood, plastic, steel, glass, carpet, and drywall from the manufacture of mobile homes, and bio-solids from the City of Elkharts wastewater treatment plant. 4. VIM has a long and documented history of noncompliance with federal and state environmental, health and safety laws, as well as local land use and zoning laws, and its activities constitute a nuisance to neighboring land owners. 5. Members of the BAUGO NORTH NEIGHBORHOOD GROUP ["the Neighborhood Group"1] including but not limited to Petitioners . . . own residential property located adjacent to the subject real estate owned by K.C. Industries, LLC and are persons aggrieved and adversely affected by VIMs illegal activities and ongoing operations. 6. On January 28, 2008, the Elkhart County Zoning Administrator determined upon inspection of the VIM site that ongoing uses and activities undertaken by VIM are in violation of Elkhart County zoning law. Specifically, the Zoning Administrator noted problems with odor, vapor, smoke, gas, dust and other debris from the VIM site adversely impacting neighboring properties and determined that VIM is in violation of the Setback and Lot Coverage standards of the General Manufacturing (M-2C) District. 7. The Zoning Administrator advised that these violations "would be diminished if the activities of VIM took place entirely within a completely enclosed building, so as to avoid a Junk Yard designation, or if the substantial waste products long located at the site, outside of an enclosed building, were not at hand, as such piling, accumulation, deterioration, and composting of waste products does create a sense of nuisance to the neighborhood and/or takes on dump or landfill characteristics."

The Neighborhood Group was originally identified as a plaintiff in the complaint, with the Bellowses and Stutsmans as representative members, but it was later dismissed from the proceedings with the Bellowses and Stutsmans going forward in their individual capacities.

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8. To avoid enforcement proceedings, the Zoning Administrator directed VIM to "act promptly to secure an appropriate . . . DPUD [a detailed PUD] for its uses and site development . . . [or] seek developmental variances with regard to Setbacks and Lot Coverage [violations], a special use permit with regard to a landfill or dump, a conditional unit development approval for a Junk Yard or nuisance type use" or appeal the zoning administrators decision within thirty (30) days. 9. VIM failed to appeal the Zoning Administrators determination or timely pursue a PUD, variance, special use permit, conditional unit development approval, or other administrative procedure as directed by the Zoning Administrator within thirty (30) days of January 28, 2008. 10. Members of the Neighborhood Group sent a letter to the Zoning Administrator on March 3, 2008[,] requesting that the Zoning Administrator bring enforcement proceedings for VIMs failure to comply with the Zoning Administrators directive, VIMs ongoing zoning violations, and to address nuisance conditions at the site. 11. Despite the Neighborhood Groups request, the Zoning Administrator sent another letter to VIM extending the compliance deadline to June 9, 2008. 12. Nearly six (6) months after the Zoning Administrator determined that VIM operates as a nuisance to its neighbors and in violation of applicable zoning law, VIM submitted an application for a DPUD on June 9, 2008[,] identifying Plan Commission member[] Tom Holt[] as its "contact agent." 13. On review of VIMs application, the appointed Technical and Site Plan Review Committee determined that VIMs application was incomplete and found several deficiencies. Nevertheless, the Department of Planning & Development recommended in its "Staff Report" that the Plan Commission forward VIMs petition with a favorable recommendation to the Board on the condition that seventeen (17) specific conditions be imposed to address "known issues of follow-up and compliance" and to address the potential for nuisance/junk yard conditions at the VIM site. 14. On July 10, 2008, the Plan Commission held a public hearing on VIMs petition during which Plan Commission member[] Tom Holt[] represented VIM and urged the Plan Commission to recommend Board approval but with revised, less protective conditions than those 4

recommended by the Planning Staff Report. Ultimately, the Plan Commission recommended Board approval with an adjusted and reduced list of 11 conditions significantly less protective of the surrounding community than those recommended by the Planning Staff Report. 15. On August 18, 2008[,] and on September 2, 2008, the Board held public hearings on VIMs application wherein Plan Commission member[] Tom Holt[] continued to represent VIM before the Board and urged the Board to approve VIMs application with conditions significantly less protective of the surrounding community and less restrictive than those recommended by the Planning Staff Report. 16. On September 2, 2008, the Board voted to approve VIMs application for a zoning map change and amendment to the zoning ordinance rezoning the subject real estate from M-2 to DPUD M-2 ["the Ordinance"]. The Ordinance relieves VIM from having to comply with more restrictive M-2 District zoning requirements, fails to address and eliminate nuisance conditions at the VIM site, and fails to protect the health, safety and welfare of the surrounding community including Petitioners herein. COUNT II--PETITION FOR WRIT OF CERTIORARI Petitioners request this Court to issue a Writ of Certiorari to Respondents, BOARD OF COUNTY COMMISSIONERS OF ELKHART COUNTY and the ELKHART COUNTY PLAN COMMISSION[,] to cause to be certified to the Court for review[] all proceedings, documents, papers, testimony (whether electronically recorded or otherwise), minutes, and all other materials entered, reviewed by, and filed with, the Board and Plan Commission (collectively, the "Record") relating to the Boards final decision of September 2, 2008 to adopt [the Ordinance]. The Record should also include all written communications to, from, and among members of the Board and Plan Commission, all staff members of the Board and Plan Commission, and their agents, representatives and attorneys (not privileged)[] relating to the decision, and including all such documents relating to VIMs request for a zoning map change. In support, Petitioners state as follows: 1-16. Petitioners reallege, restate and incorporate by reference paragraphs one (1) through sixteen (16) of Count I of this Petition as and for paragraphs one (1) through sixteen (16) of this Count II as if fully set forth herein. 5

17. The Elkhart County Zoning Ordinance, Specifications D governing manufacturing districts and uses prohibits certain "Conditional Industrial Unit Development" uses in a General Manufacturing ("M-2") District, unless located more than three hundred (300) feet from any part of a residential district or use subject to the approval of the Board by specific amendment of the zoning ordinance after paying reasonable regard to LC. 36-7-4-603 and after receiving a recommendation from the Plan Commission following a public hearing. 18. The Elkhart County Zoning Ordinance, Specifications I governing Planned Unit Development prohibits all designated uses listed in the "Conditional Industrial Unit Development" within a Planned Unit Development District. 19. VIMs operations and activities constitute an unpermitted junk yard use and/or a nuisance within three hundred (300) feet of a residential district. As such said uses, which are listed "Conditional Industrial Unit Development" uses are prohibited uses within the M-2 District and Planned Unit Development District in violation of the Elkhart County Zoning Ordinance. 20. Plan Commission member[] Tom Holt[] directly and personally represented VIM in this zoning matter during the application process and public hearings before the Plan Commission and Board. As such, Tom Holt exercised improper influence on the Board and/or created a situation reasonably calculated to weaken public confidence and undermine the publics sense of security for protection of individual rights in the Plan Commissions and Boards exercise of zoning authority in violation of Indiana Code

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