MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                 FILED
regarded as precedent or cited before any                                        Aug 31 2020, 10:43 am
court except for the purpose of establishing
the defense of res judicata, collateral                                               CLERK
                                                                                  Indiana Supreme Court
                                                                                     Court of Appeals
estoppel, or the law of the case.                                                      and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Todd J. Janzen                                           Bruce N. Elliott
Brianna J. Schroeder                                     Marion, Indiana
Janzen Agricultural Law LLC
Indianapolis, Indiana                                    ATTORNEY FOR INTERVENORS
                                                         Robert W. Eherenman
                                                         Haller & Colvin, P.C.
                                                         Fort Wayne, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Nolan Holloway,                                          August 31, 2020
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         20A-PL-117
        v.                                               Appeal from the Grant Superior
                                                         Court
Grant County Area Plan                                   The Honorable Warren Haas,
Commission,                                              Judge
Appellee-Respondent,                                     Trial Court Cause No.
                                                         27D03-1901-PL-1
Susan E. Smoker, Jon W. Mattern,
Shirley M. Mattern, Rodney L.
Kelly, Arndt Mueller, James W.
Riley, Beverly Riley, and The Riley
Family Trust,
Intervenors.



Court of Appeals of Indiana | Memorandum Decision 20A-PL-117 | August 31, 2020                   Page 1 of 18
      Najam, Judge.


                                       Statement of the Case
[1]   Nolan Holloway appeals the trial court’s denial of his petition for judicial

      review following an adverse decision by the Grant County Area Plan

      Commission (“the Plan Commission”). Holloway raises one issue for our

      review, which we restate as the following two issues:


              1.       Whether the trial court abused its discretion when it
                       declined to vacate the Plan Commission’s final decision
                       following a violation of Indiana’s Open Door law.


              2.       Whether Holloway preserved for judicial review his
                       argument that the Plan Commission was required to
                       approve his final Concentrated Feeding Operation
                       (“CFO”) application as a ministerial act or his argument
                       that the Plan Commission violated his due process rights
                       at the final meeting on his CFO request.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On December 16, 2019, pursuant to Indiana Code Section 36-7-4-1614(c), the

      trial court entered the following relevant findings of fact on Holloway’s petition

      for judicial review from a final decision of the Plan Commission:


              1. The Grant County Zoning Ordinance (“GCZO”) establishes
              zoning regulations for [CFOs]. The scope and purpose of these
              CFO zoning regulations clearly state that: “To minimize adverse
              effects and to protect the public health and safety consideration
              should be given to the many branches of the agricultural industry
              and their effect on the environment. The Plan Commission

      Court of Appeals of Indiana | Memorandum Decision 20A-PL-117 | August 31, 2020   Page 2 of 18
        recognizes that the county has many diverse areas where the
        geologic, topographic, climatic, biological and social conditions
        are significantly different and specifications for animal feeding
        operations may vary depending on these conditions.” (GCZO, §
        153,525(A)).


        2. The GCZO expressly recognizes that: “Animal feeding
        operation [(“AFO”) 1] development plan review is hereby
        established in order to encourage the flexibility in the
        development of land that may be necessary to permit adjustments
        to changing public and private needs; to foster the ability to
        provide development patterns which are more compatible with
        and effective in meeting the needs; to promote the more efficient
        use of land so as to preserve and enhance the natural
        characteristics and unique features of property; to improve the
        design, character and quality of new development; to encourage
        integrated planning for the economical provision of
        streets/roads/infrastructures and other utilities to reduce the
        burden by more efficient development; and to conserve the value
        of land.” (GCZO, § 153.525(B))[.]


        3. The GCZO provides that the basis for having a CFO zoning
        review is because “animal feeding operation land uses, while
        generally appropriate in agricultural zoning districts have
        characteristics and location impacts which may have detrimental
        effect upon other land uses.” (GCZO, § 153.528).


        4. The CFO zoning review includes, among other criteria, the
        consideration of “[c]ompatibility of the proposed use and the site
        design with the district and adjoining areas in which the use is
        proposed to be located.” (GCZO, § 153.529(C)).




1
  AFO and CFO appear to have been used interchangeably before the Plan Commission and the trial court,
and there is no suggestion on appeal that they are materially different for Holloway’s purposes.

Court of Appeals of Indiana | Memorandum Decision 20A-PL-117 | August 31, 2020              Page 3 of 18
        5. The GCZO also requires the CFO to show the proximity of
        the CFO to “sensitive areas.” (GCZO, § 153.529(D)). The
        GCZO defines “sensitive area” as “[a] site where conditions pose
        specific water quality threat to one or more of the following: (1)
        [a]quifers used as source of drinking water; (2) [p]ublic water
        supply wells; (3) [w]ell head protection areas; (4) [d]rinking water
        supply reservoirs; and (5) [a]reas requiring special protection,”
        such as wetlands, karst terrain, critical habitat for endangered
        species[,] or natural areas. (GCZO, § 153.527).


        6. The GCZO also imposes development requirement that the
        “AFO must be so located as to exercise no undue detrimental
        influence upon surrounding properties which can be ensured if all
        requirements are met. In addition, the AFO shall not endanger
        the public welfare or safety.” (GCZO, § 153.530(B)). One of the
        development requirements in the GCZO is to provide
        “[c]omplete subsurface geological study of the area on which the
        structures and monitoring wells will be located, including
        information on soils; groundwater sampling and analysis;
        hydrology; geology of the land areas used for the manure storage
        or treatment facility; and a digital magnetic survey.” (GCZO, §
        153.530(K)).


        7. When an applicant applies for CFO zoning approval, “[a]ll
        prospective applicants shall review copies of this subchapter,
        which is available for inspection at the Area Plan Office to
        determine the consistency of the proposal with the county’s
        adopted planning rationale and whether or not the proposal is
        likely to be compatible with existing and anticipated lands uses in
        the vicinity of the proposal.” (GCZO, § 153.531(B)). The
        “applicant is required to sign a statement to the effect that the
        applicant has reviewed copies of this subchapter and the zoning
        maps of this subchapter at the time the AFO application is
        submitted for approval.” (GCZO, § 153.531(B)(1)).


        8. The GCZO provides for a special two-step process for CFO
        zoning approval. First, the Plan Commission hears a
        “preliminary development plan.” Following a public hearing
Court of Appeals of Indiana | Memorandum Decision 20A-PL-117 | August 31, 2020   Page 4 of 18
        and review of the preliminary development plan, the Plan
        Commission has the option of approving it, approving it with
        conditions, or denying it. (GCZO, § 153.531(B)(2)(c)). The
        approval of the preliminary development plan “shall not constitute
        approval of the final development plan.” (GCZO, §
        153.531(B)(2)(d)). Rather, it is only preliminary approval of the
        “layout.” Id. The second step of the CFO approval process is the “final
        development plan,” and “the Plan Commission must approve, approve
        with conditions or deny” the final development plan. (GCZO, §
        153.531(C)(2)(c)). The final development plan is approved by the
        Plan Commission adopting findings of fact with six specific
        criteria that are set forth in Section 153.537(A) through (F).


        9. On July 13, 2018, Petitioner Nolan Holloway (“Petitioner”)
        applied under the GCZO for zoning approval of CFO for 9,240
        pigs.


        10. Petitioner’s proposed CFO would generate approximately
        1.92 million gallons of manure per year.


        11. Petitioner certified to [the Plan Commission] that he had
        “reviewed a copy of the Grant County Areawide Zoning
        Ordinance” and that he was “familiar with AFO requirements
        and procedures.” By making this certification, Petitioner clearly
        understood the development requirements in the GCZO, which
        require the “proposed use” be “compatible”; that there be “no
        undue detrimental influence upon surrounding properties”; and
        that the public welfare and safety were not to be endangered.
        GCZO, §§ 153.529(C) and 153.530(B). Petitioner specifically
        responded to these criteria to demonstrate “compatibility.”


        12. In his application, [while] Petitioner stated the distance his
        proposed CFO would be from a residential district, Petitioner’s
        application did not include any reference to separation from
        “sensitive areas,” as defined by the [GCZO]. Also, Petitioner’s
        CFO application did not contain a geological study of the


Court of Appeals of Indiana | Memorandum Decision 20A-PL-117 | August 31, 2020   Page 5 of 18
        surrounding area, as required by Section 153.530(K) of the
        GCZO.


        13. On October 1, 2018, the Plan Commission held its
        preliminary hearing on Petitioner’s CFO application.


        14. At the hearing, the Plan Commission explained the two-step
        process under the GCZO and explained that the Plan
        Commission would make its final decision at the next meeting
        and base its decision upon the criteria set forth in Section
        153.537(A) through (F) of the GCZO.


        15. At the October 1, 2018, public hearing, Petitioner presented
        information that his CFO application satisfied the legal criteria in
        the GCZO, including [that] his proposed CFO would not
        endanger the public welfare or safety, would not have an undue
        detrimental influence upon surrounding properties, and would
        not be a risk to human health, the environment or the general
        public welfare. Petitioner did not introduce any evidence
        regarding sensitive areas or geological studies.


                                             ***


        17. The Intervenors[ 2] introduced evidence that Petitioner’s CFO
        application did not comply with the GCZO’s legal criteria. In
        particular the Intervenors introduced two expert reports: one
        from an MAI appraiser and the other from a board-certified
        geologist, both of whom opined that the proposed location of the
        CFO would be harmful to the surrounding area.


        18. There were also numerous citizen emails and
        correspondence received by the Plan Commission opposing



2
 While the Intervenors are parties on appeal, they have joined the Plan Commission’s submissions to this
Court, and we need not separately refer to them.

Court of Appeals of Indiana | Memorandum Decision 20A-PL-117 | August 31, 2020                 Page 6 of 18
        Petitioner’s CFO because it would not be compatible with the
        surrounding area, would adversely affect property values, would
        be otherwise detrimental to the surrounding area, and would
        endanger the public health and safety.


                                            ***


        20. At the conclusion of the [October 1] public hearing, the Plan
        Commission voted to conditionally approve Petitioner’s zoning
        application which moved the preliminary plan to the final stage
        where the zoning request would be evaluated according to the
        criteria set forth in Section 153.537(A) through (F) of the GCZO.


        21. On December 3, 2018, the Plan Commission held its meeting
        on the final review and approval of Petitioner’s CFO.


        22. The Plan Commission stated that it would need to address
        each of the six findings of fact in Section 153.537 of the GCZO
        and that Petitioner had the burden of proving all six findings of
        fact.


        23. During the December 3 meeting, Petitioner was asked questions
        and was the only member of the public allowed to speak to the Plan
        Commission.


        24. At no time during the December meeting did Petitioner ever object or
        challenge the issues that were being raised or considered by the Plan
        Commission, and Petitioner never objected to the GCZO’s process.
        Petitioner never told the Plan Commission that they had no discretion in
        reviewing his CFO approval or that it was just a ministerial act. Even
        though Petitioner was given numerous times to speak at the December
        meeting, he did not object to or challenge the GCZO’s development
        requirements, the application of the GCZO to his property, the findings of
        fact required by Section 153.537 of the GCZO, or the conduct of any
        Plan Commission member at the meeting.



Court of Appeals of Indiana | Memorandum Decision 20A-PL-117 | August 31, 2020   Page 7 of 18
        25. On December 3, 2018, by a vote of 8-2, the Plan
        Commission denied the final approval of Petitioner’s CFO based
        on the findings of fact required by Section 153.537 of the GCZO.


        26. On January 2, 2019, Petitioner filed his Verified Petition for
        Judicial Review challenging the zoning decision made by the
        Plan Commission.


        27. On January 8, 2019, the Intervenors filed their motion to
        intervene which was granted on January 16, 2019.


        28. After an extension of time was granted, Petitioner timely
        filed the zoning record with the Court on February 21, 2019, as
        required by I.C. [§] 36-7-4-1613.


        29. On April 18, 2019, the Court remanded this matter back to
        the Plan Commission for the entry of proper findings of fact and,
        after approving new findings of fact on May 20, 2019, the Plan
        Commission filed its findings of fact on May 21, 2019.


Appellant’s App. Vol. II at 9-13 (emphases added; some citations omitted). The

court then concluded in relevant part as follows:


        43. The Court has reviewed the [r]ecord and concludes
        that . . . Petitioner never advised the Plan Commission that it did
        not have any discretion in approving his CFO and was required
        to approve it as a ministerial act.


                                                ***


        45. . . . [T]he failure to raise an issue at the agency level waives
        the issue for the purposes of judicial review.


        46. This type of waiver also applies to constitutional issues.


Court of Appeals of Indiana | Memorandum Decision 20A-PL-117 | August 31, 2020   Page 8 of 18
                                                ***


        48. Based on the foregoing, the Court concludes that Petitioner’s
        contentions and arguments are all . . . waived because Petitioner failed to
        preserve these issues for judicial review . . . .


        49. Furthermore, the [r]ecord reveals that the Plan Commission
        proceedings were orderly, fair, judicious and complied with due
        process. Petitioner was given ample time to present his case and
        to make any objections to the proceedings . . . or any of the legal
        criteria for his CFO zoning approval. Petitioner filed his CFO
        application in July of 2018 and the Plan Commission’s final
        decision was not made until December of 2018. Petitioner had
        five months to make any written or oral objections to the
        GCZO’s CFO zoning regulations and/or the Plan Commission
        proceedings[.] Petitioner simply chose to remain silent and to not make
        any such objections.


                                                ***


        50. It is undisputed that the Plan Commission committed a
        violation of the Indiana Open Door Law by denying certain
        members of the media the opportunity to video[record] the
        December 3, 2018, Plan Commission meeting. However, the
        media that were denied the right to video[record] the hearing did
        not bring an Open Door violation and the Court concludes that
        this Open Door [v]iolation does not justify reversing the Plan
        Commission’s denial of Petitioner’s CFO application.


        51. I.C. [§] 5-14-1.5-7(d) provides a balancing test whether to
        declare the final action of the Plan Commission void because of
        an Open Door violation.


        52. In this case, the Court concludes that the factors in I.C. [§] 5-14-1.5-
        7(d)(1) through (3) weigh against reversing the Plan Commission’s denial
        of Petitioner’s CFO.

Court of Appeals of Indiana | Memorandum Decision 20A-PL-117 | August 31, 2020    Page 9 of 18
        53. The Court concludes that the violation did not affect the
        substance of the Plan Commission’s final action, did not deny or
        impair meaningful access to the December meeting, and did not
        prevent or impair public knowledge or understanding of the Plan
        Commission’s public business. I.C. [§] 5-14-1.5-7(d)(1). The
        [r]ecord demonstrates that the meeting was still held open to the
        public to watch and observe as the Plan Commission deliberated
        over its findings. The Plan Commission recorded the meeting,
        and this recording was later available for review, inspection and
        copying under the Access to Public Records statute. The Plan
        Commission publicly deliberated over the six findings of fact
        required by the GCZO, and this deliberation was open for the
        public to observe. The violation of the Open Door Law did not
        affect Petitioner’s ability to pursue or defend his CFO
        application, as he was the only member of the public allowed to
        engage and debate the proposed findings with members of the
        Plan Commission at the December 3 meeting. Finally, Plan
        Commission President, Mr. Bothwell—like he did at the October
        1 hearing—provided a very thorough explanation of the GCZO
        process, as well as the criteria that the Plan Commission was
        required to consider under the GCZO.


        54. The Court also concludes that voiding the Plan
        Commission’s decision is not a necessary prerequisite to
        substantial reconsideration of the CFO denial. I.C. [§] 5-14-1.5-
        7(d)(2). In this case, the matter has already been remanded by
        the Court back to the Plan Commission for reconsideration of its
        Findings of Fact. The Plan Commission met in a public meeting
        on May 3, 2019 and adopted detailed, written Findings of Fact,
        and there is no evidence that the public was denied the right to
        record, video, or observe the Plan Commission’s May 3 public
        meeting. Again, there is no evidence of any other Open Door
        Law violations for either the October 1 public hearing or the
        December 3 meeting or that the Plan Commission did not
        substantially comply with the Open Door Law in all other
        respects.




Court of Appeals of Indiana | Memorandum Decision 20A-PL-117 | August 31, 2020   Page 10 of 18
        55. Finally, the Court concludes that the remedial benefits of
        allowing the public to video record a second meeting are
        outweighed by the prejudice to the public and the reliance on the
        Plan Commission’s decision. I.C. [§] 5-14-1.5-7(d)(3). The
        media who were denied the right to record the December
        meeting did not file a complaint with the Public Access
        Counselor and did not bring any action against the Plan
        Commission for the Open Door violation. Numerous members
        of the public, including all of the citizens and property owners in
        the surrounding area who opposed Petitioner’s CFO, have relied
        on the Plan Commission’s decision to deny the CFO. The
        Intervenors and the numerous Grant County citizens who
        opposed Petitioner’s CFO had nothing to do with the violation of
        the Open Door Law and spent long hours organizing, collecting
        petitions, sending letters to the Plan Commission and attending
        long Plan Commission meetings on Petitioner’s CFO. To
        remand this matter to back to the Plan Commission for another
        meeting appears to be a useless act as no new evidence can be
        admitted into the [r]ecord and the Plan Commission’s decision
        would not change. Again, the Open Door violation in no way
        affected Petitioner’s ability to present and defend his application;
        the meeting was already being recorded and transcribed and
        there is an accurate record of the Plan Commission’s
        deliberations; and the meeting was otherwise open to the public
        and complied with the Open Door law.


        56. The Court concludes that the Open Door Law violation had
        nothing to do with the Plan Commission’s ultimate decision to
        deny Petitioner’s CFO application and the Plan Commission was
        very open and transparent in explaining how it was conducting
        its public business and how it reached its zoning decision.


                                            ***


        78. Petitioner does [not] contend that the Plan Commission’s
        Findings of Fact are unsupported by substantial evidence and
        does not dispute the underlying factual basis of the Plan
        Commission’s Findings of Fact.
Court of Appeals of Indiana | Memorandum Decision 20A-PL-117 | August 31, 2020   Page 11 of 18
      Id. at 16-18, 22 (emphases added; citations omitted); see also id. at 19-20

      (concluding again that Holloway had waived his claims of due process errors)

      and id. at 22 (concluding again that Holloway had waived his claim that the

      Plan Commission was required to approve his final request as a ministerial act

      based on its preliminary approval).


[4]   Based on its findings and conclusions, the court denied Holloway’s petition for

      judicial review and affirmed the Plan Commission’s final decision to deny his

      CFO request. This appeal ensued.


                                     Discussion and Decision
                                             Standard of Review

[5]   Holloway appeals the trial court’s denial of his petition for judicial review over

      the Plan Commission’s final decision. Indiana Code Section 36-7-4-1614(d)

      (2020) provides that a reviewing court, whether the trial court or this Court,


              shall grant relief . . . only if the court determines that a person
              seeking judicial relief has been prejudiced by a zoning decision
              that is:


              (1) arbitrary, capricious, an abuse of discretion, or otherwise not
              in accordance with law;


              (2) contrary to constitutional right, power, privilege, or
              immunity;


              (3) in excess of statutory jurisdiction, authority, or limitations, or
              short of statutory right;


              (4) without observance of procedure required by law; or

      Court of Appeals of Indiana | Memorandum Decision 20A-PL-117 | August 31, 2020   Page 12 of 18
              (5) unsupported by substantial evidence.


      A decision is arbitrary and capricious if it is “patently unreasonable” or “made

      without consideration of the facts and in total disregard of the circumstances

      and lacks any basis which might lead a reasonable person to the same

      conclusion.” Lockerbie Glove Factory Town Home Owners Ass’n, Inc. v. Indianapolis

      Historic Pres. Comm’n, 106 N.E.3d 482, 488 (Ind. Ct. App. 2018) (quotation

      marks omitted), trans. denied. A decision is unsupported by substantial evidence

      if there is no “relevant evidence which a reasonable mind might accept as

      adequate to support a conclusion.” Id. The party seeking judicial review has

      the burden of demonstrating the invalidity of a plan commission’s decision.

      I.C. § 36-7-4-1614(a).


[6]   When we review a plan commission’s decision, we may not reweigh the

      evidence or reassess the credibility of the witnesses. Id. We must accept the

      facts as found by the plan commission, but we review questions of law de novo.

      Id. We presume the determination of a plan commission with expertise in a

      given subject is correct. Id. at 488-89.


[7]   On appeal, Holloway argues that the trial court erred in denying his petition

      because the Plan Commission’s decision against him was arbitrary, capricious,

      or contrary to law. In particular, he asserts: (1) that the trial court abused its

      discretion when it did not vacate the Plan Commission’s decision after the Plan

      Commission violated Indiana’s Open Door law; and (2) that the Plan

      Commission’s final decision was arbitrary, capricious, or contrary to law

      because he satisfied the conditions attached to the preliminary approval and


      Court of Appeals of Indiana | Memorandum Decision 20A-PL-117 | August 31, 2020   Page 13 of 18
      because the Plan Commission denied him an opportunity to respond to new

      evidence presented at the meeting for final approval. We address each of

      Holloway’s arguments in turn.


                   Issue One: Whether the Trial Court Abused its Discretion
                   when it Declined to Vacate the Plan Commission’s Decision

[8]   We first consider Holloway’s argument that the trial court erred when it did not

      vacate the Plan Commission’s decision following an Open Door violation. We

      initially note, as the trial court did, that there is no dispute that the Plan

      Commission’s final meeting on Holloway’s CFO request was in violation of

      Indiana’s Open Door law when it excluded third-party media from recording

      the meeting. 3 The only dispute on appeal is whether the trial court entered an

      erroneous remedy for that violation.


[9]   As we have explained:


              Whether to declare void any policy, decision, or final action
              taken by a public agency in violation of the Open Door Law is a
              matter left to the trial court’s discretion. Among the factors the
              trial court considers in reaching this determination are: 1) the
              extent to which the violation affected the substance of the action,
              denied or impaired access to any meetings that the public had a
              right to observe, and prevented or impaired public knowledge or
              understanding; 2) whether voiding of the action is a necessary
              prerequisite to a substantial reconsideration of the subject matter;
              and 3) the balancing of the remedial benefits gained by
              effectuating the public policy of the state declared in the




      3
        We agree with Holloway that “[t]here is no requirement that the ousted media file a claim” under the Open
      Door law for a violation to be found. Appellant’s Br. at 16. But we disagree with Holloway’s suggestion that
      the trial court said otherwise.

      Court of Appeals of Indiana | Memorandum Decision 20A-PL-117 | August 31, 2020                Page 14 of 18
                “Purpose” section of the Open Door Law against the prejudice
                likely to accrue to the public if the action is voided (including the
                extent to which persons have relied upon the validity of the
                challenged action).


       Frye v. Vigo County, 769 N.E.2d 188, 196 (Ind. Ct. App. 2002); see also I.C. § 5-

       14-1.5-7(d) (enumerating those same factors for the trial court to consider in

       determining the proper remedy for an Open Door violation).


[10]   Holloway’s argument on this issue disregards our standard of review and

       appears to be premised on the incorrect assumption that we will engage in a de

       novo review of the relevant factors. We will not do so. While we do not

       approve of the Plan Commission’s obvious Open Door violation, the trial court

       considered the statutory factors and the evidence underlying each factor,

       Holloway does not challenge the court’s findings on appeal, and he does not

       assert that the court erred as a matter of law in its finding of any factor or in its

       balancing of the factors. 4 Accordingly, we cannot say that the trial court’s

       remedy for the Open Door violation was an abuse of the court’s discretion. The

       trial court was not required to vacate the Plan Commission’s final decision, and

       we will not reweigh the statutory factors on appeal as Holloway requests. We

       affirm the trial court’s judgment on this issue.




       4
         Holloway asserts that the trial court found that the Plan Commission had “cured” the Open Door
       violation, and he asserts that such a finding is contrary to the Open Door law. See Appellant’s Br. at 16. But
       nowhere in the trial court’s judgment did the court find that the Plan Commission had “cured” the Open
       Door violation. Rather, the court’s judgment is clear that it considered the evidence underlying the statutory
       factors and then balanced those factors to determine the proper remedy for the violation.

       Court of Appeals of Indiana | Memorandum Decision 20A-PL-117 | August 31, 2020                   Page 15 of 18
                  Issue Two: Whether Holloway Preserved for Judicial Review
                    His Arguments that the Plan Commission was Required to
                  Approve his Final Request as a Ministerial Act and Whether
                      the Plan Commission Violated his Due Process Rights

[11]   Holloway also asserts on appeal that the Plan Commission’s final decision to

       deny his CFO request was arbitrary and capricious because, once the Plan

       Commission approved Holloway’s preliminary development plan subject to

       conditions, and he satisfied those conditions, the final approval of his CFO

       request should have been a mere ministerial act of the Plan Commission. He

       also asserts that the Plan Commission violated his due process rights when it

       did not give him an opportunity to respond to evidence presented at the final

       meeting.


[12]   But Holloway was present and, contrary to his assertions on appeal, given an

       opportunity to speak at the December 3 meeting. Indeed, the trial court

       expressly found that Holloway was permitted to speak at that meeting, but “he

       simply chose to remain silent . . . .” Appellant’s App. Vol. II at 17. Holloway

       does not assert that the trial court’s findings are not supported by substantial

       evidence. Instead—in his Reply Brief—he asserts that objecting was not

       required here because doing so would have been a “dramatic interruption” of

       the Plan Commission’s proceedings, uncivil, and “a public disturbance.” Reply

       Br. at 10-11. We reject Holloway’s argument that he should be excused from

       presenting his arguments and objections to the Plan Commission on his theory

       that doing so might have been seen as rude.




       Court of Appeals of Indiana | Memorandum Decision 20A-PL-117 | August 31, 2020   Page 16 of 18
[13]   As the trial court found and concluded, Holloway’s failure to raise these

       arguments to the Plan Commission at the final meeting results in his waiver of

       these arguments. Indiana Code Section 36-7-4-1610 expressly says:


               A person may obtain judicial review of an issue that was not
               raised before the board, only to the extent that:


               (1) the issue concerns whether a person who was required to be
               notified by this chapter or other law of a board hearing was
               notified in substantial compliance with this chapter or other law;
               or


               (2) the interests of justice would be served by judicial resolution
               of an issue arising from a change in controlling law occurring
               after the zoning decision.


       Neither of those two exceptions to the rule of waiver applies to Holloway’s

       arguments here.5 See Lockerbie Glove Factory, 106 N.E.3d at 489 (holding that

       the petitioner’s failure to object to alleged commissioner bias at the agency level

       resulted in a waiver of the issue on judicial review). Accordingly, Holloway’s

       arguments are not properly before us, and we cannot consider them.


                                                   Conclusion
[14]   In sum, we affirm the trial court’s denial of Holloway’s petition for judicial

       review.




       5
         Moreover, as the trial court found, the Grant County Zoning Ordinance plainly provides a “two-step
       process for CFO zoning approval” and “[t]he approval of the preliminary development plan shall not
       constitute approval of the final development plan.” Appellant’s App. Vol. II at 10 (quotation marks omitted).

       Court of Appeals of Indiana | Memorandum Decision 20A-PL-117 | August 31, 2020                 Page 17 of 18
[15]   Affirmed.


       Bradford, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-PL-117 | August 31, 2020   Page 18 of 18
