Van Vactor Farms, Inc. v. Marshall County Plan Commission

793 N.E.2d 1136, 2003 Ind. App. LEXIS 1516, 2003 WL 21977233
CourtIndiana Court of Appeals
DecidedAugust 20, 2003
Docket50A03-0209-CV-326
StatusPublished
Cited by4 cases

This text of 793 N.E.2d 1136 (Van Vactor Farms, Inc. v. Marshall County Plan Commission) 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
Van Vactor Farms, Inc. v. Marshall County Plan Commission, 793 N.E.2d 1136, 2003 Ind. App. LEXIS 1516, 2003 WL 21977233 (Ind. Ct. App. 2003).

Opinion

OPINION

KIRSCH, Judge.

Van Vactor Farms, Inc. ("Van Vactor") appeals the trial court's denial of relief on its petition for writ of certiorari following the Marshall County Plan Commission's ("the Commission") denial of its application for preliminary plat approval for a proposed subdivision. Van Vactor raises a number of issues on appeal, which we consolidate and rephrase as:

I. Whether the Marshall County Subdivision Control Ordinance provisions relied upon by the Commission to deny the preliminary plat approval were sufficiently specific and concrete and not extrinsic to the ordinance so as to provide Van Vactor fair notice of what would be required for the parcel of land to be subdivided.
II. Whether the evidence was sufficient to support the Commission's determination.
III. Whether the Commission's decision was illegal, arbitrary and capricious.

We affirm.

FACTS AND PROCEDURAL HISTORY

In June 2000, Van Vactor filed its original application for preliminary plat approval of a subdivision to be named "Prairie Meadows." The subdivision was to be located on farmland owned by Van Vactor, which was zoned agricultural with a provision allowing single-family dwellings to be built. The subdivision was to be located on land situated in the countryside of Marshall County and adjacent to Olive Trail, which runs north and south on the eastside of the land, and 12th Road, which runs east and west on the southside of the land. Both roads are two-lane rural roadways used frequently by farmers to transport farm machinery and which provide the only access to the proposed subdivision. Several lakes, including Myers Lake and Lawrence Lake, are located on the south side of 12th Road, directly opposite the proposed subdivision site.

The Commission conducted several hearings and received a large amount of evidence in the eight-month period that it considered Van Vactor's application. Of particular concern to the Commission was evidence that the roadways could not safely accommodate additional traffic, that a risk of groundwater contamination existed due to septic tank use, and that there were risks associated with the application of wastewater sludge on the farmland for many years.

In denying the application, the Commission issued the following relevant findings of fact and conclusions:

Findings of Fact
*e ode ok
*1140 (A) In accordance with § 501.4 and § 501.5(d) of the Marshall County Subdivision Ordinance, the public roads, to-wit: Olive Trail and 12th Road, serving the proposed subdivision are inadequate and dangerous. The traffic count determined by the Marshall County Highway Department as submitted by the applicant is 3266 vehicles per day. The estimated added vehicles generated by the subdivision is 1040, or a total of 48306 vehicles per day, representing a thirty percent (80%) increase in volume. The current design standards for that volume of traffic would require two (2) twelve foot (12) driving lanes and six foot (6) or eight foot (®) shoulders as stated in the plan director's staff report. These roads, namely, Olive Trail and 12th Road, are not designed to carry the increased volume of traffic as proposed by the applicant. The traffic counts as submitted by the applicant, indicate that the roads would have to be widened and improved, in order to safely handle additional traffic. This is also an agriculturally zoned area, and slow moving agricultural equipment, which utilize Olive Trail and 12th Road, would be particularly jeopardized by the increased flow of traffic.
(B) In accordance with § 501.3 and § 501.4 of the Marshall County Subdivision Control Ordinance, 109 individual on-site septic systems on 170.8 acres as proposed gives rise to potential ground water contamination. The long-term ef-feets of large numbers of private, individual septic systems constitute a hazard to the health and safety of the community because septic systems have been found to fail over time, causing wastewa-ter to infiltrate the groundwater of the area. The existing sand and gravel found in the Riddles soil type prevalent in this development allows groundwater to move more readily, resulting in an even increased risk of ground contamination.
(C) In accordance with § 501.3 and § 501.4 of the Marshall County Subdivision Control Ordinance, the proximity of the sludge produced and applied from the City of Plymouth's Waste Water Treatment Plant endangers the public health, safety and welfare of residents using the sludge application land. Two studies, "A Case for Caution: Recommendations for Land Application Of Sewage Studges and An Appraisal of the U.S. EPA's Part 508 Sludge Rules," 1999 by Ellen Z. Harrison, Murray B. McBride and David B. Bouldin, Cornell Waste Management Institute; and "The Issue of Sludge Deposit on Land," 1988 by Dr. D.J. Lisk, Cornell University; were presented to the Plan Commission indicating sludge has been shown to contain toxic levels of heavy metals, pathogens and pesticides which-are harmful to human beings.
(D) The Land Use section of the Marshall County, Indiana, Comprehensive Plan, pages 5-8 and 14-21, requires that:
* Residential development shall be located in and around existing cities and towns of the county;
* In the agricultural areas of the county as shown on the Land Use Plan, a rural density of residential development should be maintained;
* The provision of public services, such as sanitary sewer and water systems, fire protection, and street lights will be supported in the areas shown on the Land Use Plan and discouraged in the agricultural areas;
* Higher standards of development and improved patterns of development will be encouraged in the areas around the lakes[.]
*1141 (E) The proposed subdivision fails to comply with the minimum roadway infrastructure as set out in § 222.4, § 222.5, § 222.6 and § 222.7, § 502.1. and § 602.1(a) and (b), specifically § 222.5, "Local Roads", being the access and principal arteries of the subdivision (ie.) sixty foot (60°) right-of-way § 502.1 and twenty foot (20°) paved § 602.1(a); § 2224 "Minor Collector Roads" are moderate capacity thoroughfares designed to accommodate relatively low speed traffic. Two moving lanes unsep-arated, but wider than local road lanes, are required, ie. § 502.1 and 602.1(.e.) seventy foot (7O') right-of-way and 502.1(sic), twenty-two foot (22) paved 602.1(b).
Conclusions of Law
1. Under § 501.4 and § 501.5(d) of the Marshall County Subdivision Control Ordinance, the proposed subdivision's circulating systems and land patterns conflict with the efficiency of bordering Olive Trail and 12th Road in that these roads were not designed and built to safely carry the proposed increase in the volume of traffic, and hence would be dangerous and detrimental to the public safety.
2.

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793 N.E.2d 1136, 2003 Ind. App. LEXIS 1516, 2003 WL 21977233, Counsel Stack Legal Research, https://law.counselstack.com/opinion/van-vactor-farms-inc-v-marshall-county-plan-commission-indctapp-2003.