                                                                                 FILED
                                                                            Jun 07 2019, 8:32 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEY FOR APPELLANT                                      ATTORNEY FOR APPELLEE
      Larry O. Wilder                                             Keith D. Mull
      Jeffersonville, Indiana                                     New Albany, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Utica Township Fire                                         June 7, 2019
      Department Incorporated,                                    Court of Appeals Case No.
      Appellant-Petitioner,                                       18A-PL-2725
                                                                  Appeal from the
              v.                                                  Floyd Circuit Court
                                                                  The Honorable
      Floyd County Board of Zoning                                J. Terrence Cody, Judge
      Appeals,                                                    Trial Court Cause No.
      Appellee-Respondent                                         22C01-1710-PL-1405




      Vaidik, Chief Judge.



                                            Case Summary
[1]   Utica Township Fire Department Incorporated (“Fire Department”) appeals

      the trial court’s denial of its petition for judicial review of a decision of the

      Floyd County Board of Zoning Appeals (“BZA”). We affirm.




      Court of Appeals of Indiana | Opinion 18A-PL-2725 | June 7, 2019                               Page 1 of 7
                             Facts and Procedural History
[2]   In June 2017, the Fire Department, a non-profit corporation, bought the

      property at 1436 W. Knable Road in Georgetown for use as an emergency

      medical services sub-station. The property, which includes a house and a two-

      stall garage, is located in an area zoned for residential use. However, the Fire

      Department did not seek permission to operate the sub-station either before or

      after purchasing the property. Instead, it simply began using the property as a

      sub-station.


[3]   Shortly thereafter, “a complaint was filed with the Floyd County Plan

      Commission asserting that [the Fire Department] was operating in violation of

      the County’s zoning ordinance.” Appellant’s Br. p. 6. Only then did the Fire

      Department file a Conditional Use Application with the BZA. The Floyd

      County Zoning Ordinance, Section 15.09, provides that the BZA must approve

      such an application if:


              a. The conditional use will not be injurious to the public health,
              safety, moral, and general welfare of the community.


              b. The use and value of area adjacent to the property will not be
              adversely affected.




      Court of Appeals of Indiana | Opinion 18A-PL-2725 | June 7, 2019             Page 2 of 7
               c. The need for the conditional use does not result from [1] any
               conditions, unusual or peculiar to the subject property.


               d. The strict application of the terms of the Floyd County Zoning
               Ordinance would result in an unnecessary hardship in the use of
               the property.


               e. The approval of the conditional use will not contradict the
               goals and objectives of the Floyd County Comprehensive Plan.


      Appellant’s App. Vol II p. 78.


[4]   After holding a hearing on the application, the BZA found in favor of the Fire

      Department as to the first, second, third, and fifth requirements but not the

      fourth:


               1. The conditional use will not be injurious to the public health,
               safety, morals, and general welfare of the community because:
               the ambulance service is a community asset that travels all
               county roads, legally.


               2. The use and value of the area adjacent to the property will not
               be adversely affected because: the [Fire Department] will
               maintain the property.




      1
        We assume the inclusion of the phrase “does not result from” was a drafting error. The statute on which
      the ordinance appears to be based, Indiana Code section 36-7-4-918.4, requires a finding that “the need for
      the variance arises from some condition peculiar to the property involved[.]” (Emphasis added). In any
      event, this conflict between the ordinance and the statute is irrelevant to our ultimate resolution of the Fire
      Department’s appeal.


      Court of Appeals of Indiana | Opinion 18A-PL-2725 | June 7, 2019                                      Page 3 of 7
              3. The need for the conditional use does not result from any
              conditions, unusual, or peculiar to the property itself because:
              instead, the need is dictated by the ordinance itself.


              4. Strict application of the terms of the Floyd County Zoning
              Ordinance will not result in an unnecessary hardship in the use
              of the property because: it is a home & can be occupied &
              utilized as one in the future[.]


              5. Approval of the conditional use will not contradict the goals
              and objectives of the Floyd County Comprehensive Plan
              because: we all need ambulance services and they are permitted
              and welcomed other places.


      Id. at 74 (emphasis added).2 Because not all five requirements were satisfied,

      the BZA denied the Fire Department’s application.


[5]   The Fire Department then filed a petition for judicial review of the BZA’s

      decision. In its brief in support of the petition, the Fire Department argued that

      “[t]he findings of fact entered by the BZA are merely recitations of the relevant

      statutory language and therefore insufficient to allow review [of] the BZA’s

      action.” Memorandum in Support of Petition on Appeal, Case No. 22C01-1710-PL-




      2
        The BZA’s finding on the third requirement—that “[t]he need for the conditional use does not result from
      any conditions, unusual, or peculiar to the property itself because: instead, the need is dictated by the
      ordinance itself,” Appellant’s App. Vol. II p. 74 (emphasis added)—was technically favorable to the Fire
      Department under Section 15.09(C)(1)(c) of the Floyd County Zoning Ordinance, but, as discussed in note 1,
      that portion of the ordinance conflicts with Indiana Code section 36-7-4-918.4. Again, that conflict does not
      affect our analysis of the Fire Department’s appeal.

      Court of Appeals of Indiana | Opinion 18A-PL-2725 | June 7, 2019                                  Page 4 of 7
      1405 (filed July 15, 2018). The trial court disagreed with the Fire Department

      and affirmed the BZA’s decision.


[6]   The Fire Department now appeals.



                                  Discussion and Decision
[7]   On appeal, the Fire Department renews its argument that “[t]he findings of fact

      entered by the BZA are merely recitations of the relevant statutory language

      and therefore insufficient to allow review of the BZA’s action.” Appellant’s Br.

      p. 8. Before addressing that claim, we note that the argument section of the

      Fire Department’s brief is essentially a word-for-word reproduction of large

      portions of this Court’s analysis in Riverside Meadows I, LLC v. City of

      Jeffersonville, Indiana Board of Zoning Appeals, 72 N.E.3d 534 (Ind. Ct. App.

      2017). Nowhere in the brief, however, is there a citation to that opinion. We

      have condemned this type of wholesale appropriation before. See Keeney v.

      State, 873 N.E.2d 187, 190 (Ind. Ct. App. 2007) (reprimanding appellate

      attorney who “merely transplanted” text of Massachusetts federal court order

      into her brief “as if it were her own work”).


[8]   Because the Fire Department’s argument was lifted directly from our analysis in

      Riverside Meadows I, there is no discussion of the BZA’s actual findings in this

      case. Given that the Fire Department’s only contention on appeal is that the

      BZA’s findings are insufficient, this omission is problematic. Moreover, the

      argument does not include any citations to the record on appeal. This is a


      Court of Appeals of Indiana | Opinion 18A-PL-2725 | June 7, 2019           Page 5 of 7
      violation of Appellate Rule 46(A)(8)(a).3 As our Supreme Court has observed,

      “A brief is not to be a document thrown together without either organized

      thought or intelligent editing on the part of the brief-writer. Inadequate briefing

      is not, as any thoughtful lawyer knows, helpful to either a lawyer’s client or to

      the Court.” Frith v. State, 263 Ind. 100, 325 N.E.2d 186, 189 (1975).


[9]   In any event, Riverside Meadows I is easily distinguishable from this case.4

      There, the Jeffersonville Board of Zoning Appeals denied an application for a

      use variance and entered findings that literally mirrored the language of the

      applicable zoning ordinance. Riverside Meadows I, 72 N.E.3d at 536-39. We

      explained that such findings are insufficient to permit meaningful judicial




      3
        The Fire Department’s statement of the case and statement of facts do not include any citations to the
      record either, in violation of Appellate Rule 46(A)(5) and (6)(a). The reason for this, we gather, is that the
      Fire Department’s brief on appeal is for the most part a replica of the brief it filed in the trial court, which
      itself was devoid of any citations to the BZA record. See Memorandum in Support of Petition on Appeal, Case
      No. 22C01-1710-PL-1405 (filed July 15, 2018).
      4
       In his eagerness to borrow from Riverside Meadows I, the Fire Department’s attorney failed to recognize the
      distinction between a “use variance” and a “conditional use.” Riverside Meadows I involved the former, as we
      noted in the first sentence of our analysis: “In the present case, Riverside sought a use variance from the
      zoning ordinance.” 72 N.E.3d at 538. This case, on the other hand, involves an application for a conditional
      use. Appellant’s App. Vol. II p. 80. However, except for the name of the appellant, the first sentence of
      counsel’s “analysis” is identical to that sentence from Riverside Meadows I: “In the present case, Utica sought a
      use variance from the zoning ordinance.” Appellant’s Br. p. 8 (emphasis added). As we have explained:
               A conditional use is not a variance. The primary difference between the two is that a
               conditional use is not an exceptional use. A conditional use is a desirable use which is
               attended with detrimental effects which require that certain conditions be met before it
               can be established at a given location. While a variance is a departure from the terms of
               an ordinance, a conditional use is a permitted use under the terms of the ordinance, so
               long as the enumerated conditions are met.
      Eberhart v. Ind. Waste Sys., Inc., 452 N.E.2d 455, 460 (Ind. Ct. App. 1983) (citations omitted). The Floyd
      County Zoning Ordinance contains separate procedures for conditional uses (Section 15.09) and use
      variances (Section 15.11).

      Court of Appeals of Indiana | Opinion 18A-PL-2725 | June 7, 2019                                        Page 6 of 7
       review of the BZA decision, and we remanded the matter to the BZA for the

       entry of more detailed findings. Id. at 539-40.


[10]   Here, the Fire Department’s claim that the BZA’s findings were “merely

       recitations” of the controlling ordinance is simply inaccurate. As discussed

       above, the BZA included case-specific reasoning in each of its five findings. See

       Appellant’s App. Vol. II p. 74. Most importantly, regarding the fourth

       requirement, the BZA found that “[s]trict application of the terms of the Floyd

       County Zoning Ordinance will not result in an unnecessary hardship in the use

       of the property because: it is a home & can be occupied & utilized as one in

       the future[.]” Id. (emphasis added). In short, the property the Fire Department

       purchased is a dwelling, and it can be used as such going forward. That strikes

       us as an eminently reasonable rationale for denying the conditional use

       application, and the Fire Department does not argue otherwise. Instead, it rests

       on its assertion that the BZA’s findings just track the language of the Floyd

       County ordinance. Because that assertion is wrong, the Fire Department’s

       appeal necessarily fails.


[11]   Affirmed.


       Kirsch, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 18A-PL-2725 | June 7, 2019          Page 7 of 7
