Ash v. Rush County Board of Zoning Appeals

464 N.E.2d 347, 1984 Ind. App. LEXIS 2681
CourtIndiana Court of Appeals
DecidedJune 11, 1984
Docket1-1282A363
StatusPublished
Cited by20 cases

This text of 464 N.E.2d 347 (Ash v. Rush County Board of Zoning Appeals) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ash v. Rush County Board of Zoning Appeals, 464 N.E.2d 347, 1984 Ind. App. LEXIS 2681 (Ind. Ct. App. 1984).

Opinions

ROBERTSON, Judge.

Mae Ash, along with several other property owners, (petitioners) appeal the findings of fact and conclusions of law made by the Rush County Board of Zoning Appeals (Board) regarding the application for a zoning variance made by the Glenwood Terminal, Inc. (Glenwood Terminal). Glenwood Terminal applied for a variance in order to alter the zoning status of its property from agricultural to commercial in order to build a grain drying facility in the unineorporat-ed village of Mauzy. The application was filed with the Rush County Area Plan Commission. The petitioners sought to appeal the granting of this variance to the Board which affirmed the decision of the plan commission. The petitioners appealed this decision to the cireuit court which affirmed the decision of the Board. The appeal was pursued further to this court. We reversed and remanded the trial court's decision because the Board failed to make findings of fact, Ind.App., 451 N.E.2d 1182. The findings have been made and the petitioners now appeal the determination.

We affirm.

The petitioners raise three errors on appeal from the Board's findings of facts and conclusions of law: 1) whether the findings and conclusions are supported by sufficient evidence, are contrary to law, or constitute an abuse of discretion; 2) whether the Rush County zoning ordinances are unconstitutionally vague; and 3) whether the Board's composition was unlawfully constituted, such that its action would be void. The last two issues can easily be resolved because they were not raised by the petitioners in their motion to correct errors. The failure to include issues in the motion to correct errors constitutes a waiver. Winkler v. Royal Insurance Company, (1975) 167 Ind. App. 16, 337 N.E.2d 499. Furthermore, the record fails to disclose that these issues were raised before the trial court. We are not a court of original jurisdiction.

In order to discuss the petitioners' final issue it is necessary to make certain observations regarding zoning law. A great deal of confusion has been generated in this case because of the parties' failure to distinguish among rezoning amendments, variances, and special exceptions. Rezoning is a legislative matter which can only be accomplished by the actions of a legislative body. Hills v. Area Plan Com'n. of Vermillion Cty., (1981) Ind.App., 416 N.E.2d 456. Appellate review of legislative determinations is quite limited. City of Anderson v. Associated Furniture, (1979) Ind.App., 398 N.E.2d 1321, rev'd on other grounds, Ind., 423 N.E.2d 293. A variance involves a deviation or change from the legislated zoning classification applicable to a certain piece of property. The granting of a variance by the Board is discretionary even though the petitioner may have satisfied the statutory criteria. A special exception involves a use which is permitted within the given zoning classification onee certain statutory criteria have been satisfied. The granting of a special exception is mandatory upon compliance with the statutory criteria set forth in the ordinance. Boffo v. Boone Cty. Bd. of Zoning Appeals, (1981) Ind.App., 421 N.E.2d 1119. Upon remand, this case has been treated as an application for a special exception. We shall also treat it as a special exception.

Mauzy is an unincorporated village consisting of six houses. It is located on County Road 600 E in the area which intersects with State Road 44. Mauzy's size has remained constant since about 1900 and no other business has been conducted in the area since 1892. Other than the land purchased by Glenwood Terminal, the area is zoned for agricultural purposes. The petitioners presented evidence that the construction workers had been rude, that surrounding roads had an increase in traffic often beginning early in the morning, that [351]*351some of the construction traffic trespassed onto the petitioners' property, and that the petitioners had experienced some difficulty with their water supply. One of the petitioners testified that she was negotiating the sale of her home prior to the construction, but that negotiations ceased after the construction began.

Glenwood Terminal presented evidence to the Board that its purpose in altering the zoning was to permit the construction of a grain handling facility. It intended to ship grain to the east coast and eventually overseas. Glenwood Terminal also presented evidence that farmers operate on a very tight budget and that due to increased costs of fuel and truck maintenance, it would be able to pay from 5 cents to 25 cents more per bushel of grain because the property which it had purchased contained railroad track which would enable it to store grain in train cars as well as loading grain cars. Glenwood Terminal also admitted it was willing to spend as much as $6,000 to correct a drainage problem which would help the petitioners with their drainage. Evidence was presented to the Board that the road north of the facility would not have a great increase in traffic, but that the road south might have to be widened and strengthened and that if necessary, Glenwood Terminal would use its resources to keep the road in repair. Evidence was also presented that the only noisy equipment at the facility would be a grain drying machine which was to be located at the east end of the facility, which would only operate three to four weeks per year during harvest season, that a crossing guard would be at the railroad during school periods to warn buses of rail traffic, that eventually the area around the facility would be blacktopped to eliminate dust problems, and that the grain bins would be free standing concrete structures. The spokesman for Glenwood Terminal managed a similar facility in Falmouth which was considered to be clean and well operated.

The petitioners argue the evidence is insufficient to support the findings of fact and conclusions of law. They specifically challenge the sufficiency of evidence to support the following findings:

4(c) A large preponderance of the truck ing and hauling will be from the south and thus not pass but a part of one of the objectors real estate.
(d) Drainage is presently a problem of the objectors and Glenwood Terminal, Inc. is prepared to spend as much as $6,000.00 correcting its own drainage in such a manner as will help correct the present drainage problems of the objectors; if the County Road from the south to the Glenwood Terminal, Inc. facility has to be widened and strengthened, Glenwood Terminal, Inc. volunteers to keep said road in repair at its expense; further Glenwood Terminal, Inc. as a safety precaution will maintain a crossing guard at the railroad during the school periods to warn school buses of rail traffic.
(e) The only noisy machinery would be a grain dryer located at the east end of the facility which would operate only three to four weeks annually during harvest season; the noise of such dryer located this Board estimates [sic] is no closer than 800 feet from the nearest objector's residence and 1500 feet from the further-est [sic] objector's residence will not be disturbing to any of the objectors.

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Ash v. Rush County Board of Zoning Appeals
464 N.E.2d 347 (Indiana Court of Appeals, 1984)

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Bluebook (online)
464 N.E.2d 347, 1984 Ind. App. LEXIS 2681, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ash-v-rush-county-board-of-zoning-appeals-indctapp-1984.