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FILED
FOR PUBLICATION
May 24 2011, 8:21 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANTS: C. GREGORY FIFER Applegate Fifer Pulliam LLC Jeffersonville, Indiana

ATTORNEY FOR APPELLEES: STEVEN A. GUSTAFSON New Albany, Indiana

IN THE COURT OF APPEALS OF INDIANA
WASTEWATER ONE, LLC and WILLIAM A. MUSSELMAN, Appellants, vs. FLOYD COUNTY BOARD OF ZONING APPEALS and FLOYD COUNTY, INDIANA, Appellees. ) ) ) ) ) ) ) ) ) ) ) )

No. 22A04-1007-PL-418

APPEAL FROM THE FLOYD CIRCUIT COURT The Honorable J. Terrence Cody, Judge Cause No. 22C01-0712-PL-851

May 24, 2011

OPINION - FOR PUBLICATION

BROWN, Judge

Wastewater One, LLC (the "Utility") and William A. Musselman ("Musselman," and collectively with the Utility, the "Applicants") appeal the Findings of Fact, Conclusions of Law, and Judgment in favor of the Floyd County Board of Zoning Appeals and Floyd County, Indiana (collectively, the "BZA") affirming the BZAs denial of a conditional use permit for the expansion of a sewage treatment plant. Applicants raise four issues which we revise and restate as: I. Whether the BZA had jurisdiction over the Utilitys proposal to expand the Plant; Whether the requirements of the Floyd County Zoning Ordinance (the "Ordinance") for evaluating conditional use petitions are contrary to Indiana law; and Whether the court erred in affirming the BZAs denial of the conditional use petition. The

II.

III. We affirm.1

The relevant facts follow. In 2006, the Utility was approved to purchase a sewage treatment plant known as the Highlander Village Sewage Treatment Plant (the "Plant") that serviced two residential subdivisions in Floyd County, Highlander Village and Cedar
The BZA also raises the issue in its brief that "[s]ince the Indiana Utility Regulatory Commission has denied the [Applicants] petition to expand its service area, this appeal is moot." Appellees Brief at 15. Initially, we note that the BZAs only citation to the record for this proposition is to the BZAs filing dated April 1, 2010, objecting to the Applicants motion to correct errors. Id. at 15. n.22 (citing Appellants Appendix at 63). Also, at the hearing before the trial court on November 23, 2009, the Applicants addressed "the matter that was pending before the Regulatory Review Board" and noted that the "initial proceeding has been dismissed" because "the Office of the Utility Consumer Council objected to the formatting of financial data that was submitted in support of a proposed rate increase" and did not at that proceeding get "into the merits" of the proposed expansion of its territorial authority. Transcript at 5. The Applicants also noted that they had "re-filed a petition seeking the same relief . . . ." Id.
1

Based upon our review of the record, as well as recognizing that we affirm the trial courts order on the merits, we decline to address the BZAs mootness argument.

2

Pointe, since the 1970s.2 The Plant was situated on a .324-acre parcel in close proximity to some of the houses in the subdivisions, was located in a "Residential Suburban" zoning district, and treated approximately 37,000 gallons per day servicing 123 customers. Appellants Appendix at 241. At some point since the Plant was built, Floyd County made changes to its zoning ordinance, and to the extent that the Plants use or specifications conflict with the current Ordinance, it is considered a grandfathered-in, non-conforming use. The Ordinance lists a sanitary sewage treatment plant as a

conditional use "permitted upon conditional approval of the [BZA] in accordance with Article 15 of [the] Ordinance for the Residential Suburban (RS) District." Id. at 105. The Utility entered into an agreement with Musselman, who owned tracts of land in the area, to provide sewage services for a new 129-home subdivision Musselman was developing which would be located adjacent to Cedar Pointe.3 Musselman also owns a 1.954-acre tract situated adjacent to the Plant, and as part of their agreement he agreed to allow the Plant to build an expansion on this property. The property that the Plant sits on and Musselmans 1.954-acre tract were joined as a single tract when the Plant was initially built. On June 21, 2007, the Applicants jointly submitted a Conditional Use Application to the BZA to expand the Plants treatment capacity to 100,000 gallons per day, and on
2

The record reveals that the Highlander Village Sewage Treatment Plant has been renamed the Galena Wastewater Treatment Plant. The Utility was named in the agreement as the "successor in interest to Highlander Village Sewage Treatment Plant, Inc." Appellants Appendix at 79. At the November 14, 2007 BZA hearing, the Utilitys counsel explained that Stephen Tolliver, the owner of the Utility, had operated the plant in some capacity since 1997 but that he "had authority to make capital improvements [since] roughly right at a year ago." Id. at 302.
3

3

June 25, 2007 they filed a conditional use permit checklist and submission of information as required by the Ordinance. On November 14, 2007, the BZA conducted a public hearing on the application. At the hearing, the Applicants presented facts consistent with the foregoing and that rates were to be increased from $45 to $74 per month due to a $60,000 investment by the Utility to renovate the facility which had fallen into disrepair under previous ownership. The Utility stated that "when this plant goes to a hundred thousand gallons," the sewage flow will be processed faster "and will alleviate those odor conditions that periodically exist[] now," and that although incidents of odor would not be eliminated, "it will be less than it is today." Id. at 287. The Utility stated that, due to the already-high projected monthly price of $74 per month for sewage services, building another plant at another location "probably isnt financially feasible" because of the new infrastructure that would have to be installed. Id. The Utility noted that they were seeking a conditional use permit rather than a variance and thus were "not seeking to do something that your ordinance otherwise prohibits." Id. at 288. The Utility also

"preemptively object[ed]" to the ballot upon which the BZA would decide the issue if it contained "the five items on the variance requirements in the statute . . . ." Id. at 290. The Utility noted that they would not shut down the existing plant until "the new plant was operating properly." Id. at 293. Remonstrators also appeared in opposition to the application. Carol Bedan stated that the Plant is located "fifteen feet from the back line of . . . a couple of [] houses," which would not be allowed for new construction under current law, that "theres something to be said about [] changing the proximity of houses to sewer plants," and she 4

asked the BZA "to please consider the spirit of the new five-hundred-foot rule." Id. at 308-309. Bedan noted that the expansion "is going to result in facilitating more

subdivisions" because it will allow "over five hundred new sewer tap-ins . . . ." Id. at 309. She noted that "[s]ummertime odor from the plant is going to be tremendous, as it is from other plants in the area." Id. She also noted that "[t]he traffic is terrible at rush hour and [] bad at many other times," that "[e]very new home results in at lea st two to three more cars" on the local roadways, and that "two to three hundred more cars . . . [is] unacceptable on the present highway." Id. at 310-311. George Mouser stated that "there is no way to argue that the use and value of adjacent property will not be adversely affected" and that "[a] young man, not too long ago, went into that area to look at a house that was for sale, and he told me that he saw it was by a sewage treatment plant and he turned around and left promptly." Id. at 313. He also noted that just because the Plant had "been in compliance for the last few months [] doesnt mean that it will be in compliance after its [sic] expanded" and that, based on past experience, it is difficult to get a sewer back into compliance. Id. At the conclusion of the hearing, one of the BZA members noted that Tolliver revealed in a letter that his "objective was to make this a three hundred thousand gallon plant ultimately when its completed, not just this one hundred thousand." Id. at 322. The BZA voted 4-1 to deny the Applicants conditional use application and adopted the following findings by use of a conditional use ballot prepared in accordance with Section 15.09(C)(1) of the Ordinance: After careful review the Board finds that: 5

(1)

The conditional use WILL NOT be injurious to the public health, safety, moral, and general welfare of the community because: It will provide an essential service to the community. The use and value of the area adjacent to the property WILL be adversely affected because: Expansion of this capacity within the area now available will impact adjacent residences. The need for the conditional use DOES NOT result from any conditions, unusual or peculiar to the subject property itself because: This is an expanded use of a public facility. Strict application of the terms of the Floyd County Zoning Ordinance WILL result in an unnecessary hardship in the use of the property because: It will eliminate necessary facilities for 123 residences. Approval of the conditional use WILL contradict the goals and objectives of the Floyd County Comprehensive Plan because: This will allow continued service to Highlander Village then seven additional square miles of undeveloped land which will compound present congestion of the roadways.

(2)

(3)

(4)

(5)

Id. at 279, 323. On December 11, 2007, the Applicants filed a petition for judicial review by certiorari of denial of conditional use permit and mandate of approval of such permit and complaint for declaratory relief which the trial court granted. On November 23, 2009, the court held a hearing and heard argument by counsel. At the hearing, the Applicants renewed their argument made at the BZA hearing that the Ordinance is "contrary to Indiana law" because "a conditional use and a variance are two (2) totally different things," but the Ordinance "requires the BZA, when it considers a conditional use permit to apply the standards applicable by statute to a use variance." Transcript at 18. The Applicants also argued that BZA Findings 2 and 5 were not based upon evidence 6

presented at the hearing. The Applicants argued that the BZA did not have jurisdiction "to decide where utility facilities get built," and that Ind. Code

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