                                                                                 FILED
                                                                            Apr 18 2019, 10:20 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
C. Gregory Fifer                                            CLARK COUNTY BOARD OF
F. Brad Benson                                              ZONING APPEALS
Applegate Fifer Pulliam LLC                                 Douglas B. Bates
Jeffersonville, Indiana                                     Chelsea R. Stanley
                                                            Stites & Harbison PLLC
                                                            Jeffersonville, Indiana

                                                            Zachary M. VanVactor
                                                            Stites & Harbison PLLC
                                                            Louisville, Kentucky


                                                            ATTORNEYS FOR APPELLEE
                                                            SIERRA CLUB
                                                            Khushi K. Desai
                                                            Earthjustice
                                                            Washington, D.C.
                                                            Jeffrey B Hyman
                                                            Conservation Law Center
                                                            Bloomington, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA




Court of Appeals of Indiana | Opinion 10A04-1709-PL-2199 | April 18, 2019                      Page 1 of 38
      Essroc Cement Corp,                                         April 18, 2019
      Appellant-Petitioner,                                       Court of Appeals Case No.
                                                                  10A04-1709-PL-2199
              v.                                                  Appeal from the Clark Circuit
                                                                  Court
      Clark County Board of Zoning                                The Honorable Susan L. Orth,
      Appeals and Sierra Club,                                    Special Judge
      Appellees-Respondents                                       Trial Court Cause No.
                                                                  10C02-1609-PL-108



      May, Judge.


[1]   Essroc Cement Corporation (“Essroc”) operates in Clark County, Indiana, on

      land zoned M2 for Heavy Industrial Use. To date, Essroc has always used coal

      to power its concrete production, but in the past decade Essroc began

      considering firing its concrete kiln with liquid waste derived fuels (“LWDF”).

      In December 2014, Essroc requested an informal determination from the Clark

      County Plan Commission (“the Plan Commission”) about the permissibility of

      burning LWDF on land zoned M2. In late January 2015, the executive director

      of the Plan Commission gave Essroc a private letter indicating the burning of

      LWDF was permitted in an area zoned M2.


[2]   However, seventeen months later, Plan Commission staff issued a second

      private letter to Essroc that revoked the first private letter and indicated Essroc

      would need to obtain a variance or re-zone its property to an M3 district if it

      wished to burn LWDF. Essroc appealed that second private letter to the Clark

      County Board of Zoning Appeals (“the CCBZA”). The CCBZA held a public


      Court of Appeals of Indiana | Opinion 10A04-1709-PL-2199 | April 18, 2019               Page 2 of 38
      hearing and determined Essroc’s proposed use of LWDF is prohibited in an

      area zoned M2. As a result, to burn LWDF, Essroc would need either to re-

      zone to M3, which is a Hazardous Waste Disposal District, or to petition for a

      use variance.


[3]   Essroc petitioned the trial court to review that administrative determination.

      The trial court affirmed the CCBZA’s decision. Essroc filed a motion to correct

      error, which the trial court granted in part and denied in part. Essroc now

      appeals to this court, raising numerous procedural and substantive issues 1 that

      we reorganize and restate as:


               I. Does the Clark County Zoning Ordinance (“CCZO”) permit
               the burning of LWDF on land zoned M2 or only on land zoned
               M3?


               II. Can Essroc nevertheless burn LWDF on its land zoned M2
               because such burning is permitted as an “accessory use”?


               III. Does Plan Commission staff have the authority to revoke a
               prior staff-issued, non-public, informal zoning determination
               letter by sending another staff-issued letter?




      1
        In its Brief, Essroc also asserted the trial court committed reversible error by failing to hold a hearing, as
      requested by the parties, prior to ruling on the competing motions for summary judgment. At oral argument,
      counsel for Essroc withdrew that issue from our consideration by conceding that any error that occurred
      thereby was harmless as the trial court held a full hearing prior to ruling on Essroc’s motion to correct error.

      Court of Appeals of Indiana | Opinion 10A04-1709-PL-2199 | April 18, 2019                          Page 3 of 38
              IV. If Plan Commission staff could revoke the initial staff
              determination, was Essroc entitled to notice and a public hearing
              before that revocation?


              V. Is the CCBZA equitably estopped from requiring Essroc to
              rezone because Essroc had spent money in reliance on the Plan
              Commission’s first determination letter?


              VI. Should Finding 18, Finding 19, and Conclusion 7 be struck
              from the trial court’s final order because the issue of whether the
              CCZO is preempted by federal law was not before the trial court?


      We affirm.



                             Facts and Procedural History                                2




[4]   For over 100 years, Essroc has produced cement at its facility in Clark County,

      Indiana. To date, Essroc has fired its cement kiln using coal. However, Essroc

      wishes to begin firing its kiln with LWDF, which are an amalgam made of such

      liquids as household cleaning products, oils, nail polish, nail polish remover,

      perfume, paint, and ink. To burn LWDF, Essroc needs a permit from the

      Indiana Department of Environmental Management (“IDEM”), and to obtain

      that IDEM permit, Essroc needs a letter confirming it has CCBZA approval for

      converting from coal to LWDF.




      2
        We held oral argument on this case at the Indiana Statehouse on June 20, 2018. We thank counsel for their
      insightful arguments, which assisted our resolution of this proceeding.

      Court of Appeals of Indiana | Opinion 10A04-1709-PL-2199 | April 18, 2019                      Page 4 of 38
[5]   On December 19, 2014, Essroc’s legal counsel sent a letter to the Plan

      Commission asking “for certification of zoning compliance from the Clark

      County Plan Commission and/or Plan Director”:


              This firm represents Essroc. Essroc’s production facilities at
              Speed are located on approximately 3500 acres in the
              unincorporated territory of Clark County with the manufacturing
              and production of the facility within the M2 (Heavy Industrial)
              zoning district as shown on the Clark County Zone Map.


              To date Essroc has fueled its production facilities primarily with
              coal. It proposes to begin supplementing its coal usage with
              alternative fuels. These materials would include solvents, paints,
              etc. They would be flammable (as required to create heat for the
              kiln), and would be accordingly designated as “hazardous” due
              to such flammability. The alternative fuel materials would be
              delivered by generators to Essroc’s Logansport, Indiana, plant for
              blending. This plant already has a permit to burn alternative
              fuels, and therefore presently has all of the equipment in place as
              required to properly handle these materials.


              After blending at the Logansport plant, the materials would be
              transported by truck to the Speed plant. Essroc already has one
              (1) tank in place that it has used for waste oils in the past. The
              only capital addition Essroc currently proposes to make would be
              the addition of a second tank to enable replacement of up to fifty
              percent (50%) of the coal it now uses. However, Essroc presently
              anticipates that it will likely achieve replacement of coal in the
              25-30% range, but plans to seek IDEM permitting to allow up to
              the 50% replacement level. The addition of this single tank is
              obviously a very small addition to Essroc’s existing plant. Once
              the materials arrive at the Speed plant, they will be pumped into
              the existing and new tanks, and then pumped to the kiln utilizing
              existing equipment to use as a process fuel in manufacturing
              clinker, a work-in-process that ultimately becomes cement.
      Court of Appeals of Indiana | Opinion 10A04-1709-PL-2199 | April 18, 2019   Page 5 of 38
        Enclosed are the materials that Essroc has provided to adjoining
        property owners as part of the environmental permitting process.
        Please not [sic] the graphic on page 4 illustrating the cement
        manufacturing process entitled “Cleaner Alternative Fuels Can
        Replace Coal”. [sic] Again, the only change in Essroc’s current
        production activities relates to the Alternative Fuel graphic on
        the right hand side of this page, as Essroc plans to replace a
        portion of the coal used in its kiln with such alternative fuels.


        Essroc needs to demonstrate to IDEM that, if permitted, its plans
        will comply with all local zoning regulations. Permitted uses (g)
        (“concrete mixing”, etc.), and (h) (“sand, gravel or aggregate
        wash production or processing”) would appear to expressly
        permit the continued operation of Essroc’s cement production
        facilities, regardless of whether alternative fuels are utilized as a
        supplement to coal. Essroc does not in any manner intend to
        construct or operate any facilities constituting a “landfill, waste
        transfer facilities, recycling facilities and related operations, or
        storage processing and recycling of hazardous materials” that
        would most likely require rezoning to M3 (Hazardous Waste
        Disposal District).


        Based on the foregoing, Essroc would request the issuance of an
        assurance letter by the Plan Directoor [sic] and/or on behalf of
        the Plan Commission (in the manner you deem appropriate),
        certifying that (i) Essroc’s current cement manufacturing
        operations are permitted as a matter of right, (ii) such operations
        will continue to be permitted as a matter of right subsequent to
        Essroc’s conversion to alternative fuels usage; provided however,
        that Essroc complies with all applicable laws, regulations, and
        permits with respect to the handling and usage of such alternative
        fuels, and (iii) Essroc’s use of such alternative fuels will not
        necessitate a change of zoning classification to M3 (Hazardous
        Waste Disposal District) for any portion of its facilities.



Court of Appeals of Indiana | Opinion 10A04-1709-PL-2199 | April 18, 2019   Page 6 of 38
                Should the Plan Commission or you require any additional
                information in order to be able to issue the requested assurance
                letter, please advise and we will attempt to accommodate your
                request promptly. Essroc representatives and I would also be
                glad to meet with the Plan Director, yourself, or other
                appropriate County officials as required to satisfy any remaining
                concerns regarding this request.


      (App. Vol. II at 53-4.)


[6]   Essroc and Plan Commission staff held informal meetings and, on January 26,

      2015, the Executive Director of the Plan Commission sent a letter to Essroc that

      stated:


                The Office of Planning & Zoning for Clark County[,] Indiana
                concludes after our meeting on January 22, 2015, that Essroc’s
                current cement manufacturing operation is permitted as a matter
                of right within the M2 (Heavy Industrial) district in which it is
                located. Such operations will continue to be permitted as a
                matter of right subsequent to Essroc’s conversion to RCRA-
                regulated Liquid Waste Derived Fuels (kiln-ready fuel) usage at
                this site location as described and detailed to the Office of
                Planning, provided that Essroc complies with all applicable laws,
                regulations, permits, and local ordinances with respect to the
                handling, usage, and location of such alternative fuel. Essroc’s
                use of such alternative fuels will not require a rezoning to M3
                (Hazardous Waste Disposal District) for any portion of its
                facilities or the grant of any use variance.


                The new storage tank and shed over the existing tank farm will
                require commercial building permits issued through the Office of
                Planning & Zoning by the Building Commissioner after all
                approvals or permits are received from other agencies, including
                the Indiana Department of Natural Resources for the approval of

      Court of Appeals of Indiana | Opinion 10A04-1709-PL-2199 | April 18, 2019     Page 7 of 38
              the location of the items in the floodway . . . and the Indiana
              Department of Environmental Management (IDEM) for the
              modifications to the Essroc facility for the construction of, and
              operations for, the use of these alternative fuels as specified in the
              RCRA and Clean Air Act permit applications to be prepared and
              submitted by Essroc.


      (Id. at 61.)


[7]   In February 2016, IDEM held a meeting on Essroc’s permit application for

      burning of LWDF. (Id. at 46.) At the next Plan Commission meeting, a group

      of Clark County citizens (“Concerned Citizens”) 3 raised concerns about Essroc

      burning LWDF:


              The Essroc Cement Corporation (Essroc) has applied for a
              modification of its Part 70 Clean Air Act permit that would allow
              it to burn liquid hazardous wastes that require comprehensive
              regulation under the Resource Conservation and Recovery Act
              (RCRA) at its Sellersburg, Indiana cement plant. RCRA is a
              federal law governing the generation, storage, transport and
              disposal of regulated hazardous wastes, which are among the
              most highly toxic substances produced in industrial
              manufacturing and business use. The Essroc plant is located in
              close proximity to homes, churches, schools, and daycare
              centers, and its permit application documents reveal that it
              already emits vast quantities of toxic pollution into the
              neighboring community – even without burning hazardous
              waste. Allowing the plant to burn hazardous waste would
              increase the toxic burden on families in this community, and
              would also create the risk of catastrophic events if the hazardous



      3
       Concerned Citizens includes Carl A. Dreyer, Teri Corya, Chuck Corya, Vicki Whittinghill, and Karl
      Truman. (See App. Vol. II at 101.)

      Court of Appeals of Indiana | Opinion 10A04-1709-PL-2199 | April 18, 2019                    Page 8 of 38
              waste that Essroc seeks to store on site – which, by Essroc’s
              admission is volatile and ignitable – should spill, leak, catch fire,
              or explode. Hazardous waste is dangerous to handle, transport,
              store, and incinerate because it consists of highly toxic chemicals
              in complex harmful mixtures.


      (Id. at 66) (first paragraph of a ten-page submission to CCBZA).


[8]   On April 4, 2016, Concerned Citizens filed a petition with the CCBZA for

      administrative appeal of the letter of January 26, 2015. (Id. at 81-3.) The

      CCBZA dismissed that appeal because staff decisions must be appealed within

      thirty days, such that the letter of January 26, 2015, was “not an appealable

      administrative decision.” (Id. at 122.) On June 17, 2016, Concerned Citizens

      filed a petition for judicial review by the Clark Circuit Court. (Id. at 101-12.)

      Essroc moved to intervene in that court case and then, on August 10, 2016, the

      case was dismissed with prejudice by joint agreement of Concerned Citizens,

      Essroc, and the CCBZA.


[9]   However, in the meantime, on June 27, 2016, the new Acting Executive

      Director of the CCBZA, Stacia Franklin, and the President of the Plan

      Commission, Jack Coffman, sent a letter to Essroc that provided, in necessary

      part:


                    In correspondence dated December 19, 2014, counsel for
              Essroc requested that the Clark County Plan Commission or the
              Plan Director issue a letter of assurance related to Essroc’s
              current manufacturing operations and proposed future
              operations. In that letter Essroc stated:



      Court of Appeals of Indiana | Opinion 10A04-1709-PL-2199 | April 18, 2019   Page 9 of 38
                 “Essroc does not in any manner intend to construct or
                 operate any facilities constituting a landfill, waste transfer
                 facilities, recycling facilities and related operations or
                 storage processing and recycling of hazardous materials’
                 that would most likely require rezoning to M3 (hazardous
                 waste disposal) district.”


               The staff of the office of Planning and Zoning for Clark
        County relied on the representations of Essroc’s letter and issued
        the requested assurances in a letter dated January 26, 2015
        subject to the further requirements stated in the assurance letter.


                Clark County has just recently discovered that on
        February 26, 2015, Essroc submitted to IDEM, an initial part B
        permit application (“RCRA Permit”) (VFC#80012744) for the
        Esroc [sic] Speed, Indiana facility to request addition of a LWDF
        process to the Speed facility. On the “Type of Application”
        section, Essroc designated “Hazardous Waste Storage Facility;
        Hazardous Waste Treatment Facility”. [sic] Additionally, in
        February of 2015, Essroc applied for a significant modification of
        its Part 70 Operation Permit (“Title V Permit”) in order to begin
        utilizing LWDF. IDEM’s preliminary findings conclude that
        Essroc will construct a RCRA LWDF waste receiving and
        storage facility at the Speed, Indiana facility.


              Therefore, the Office of Planning and Zoning of Clark
        County, Indiana still concludes that Essroc’s current cement
        manufacturing operation is permitted as a matter of right but
        based upon these newly discovered facts, in order to add the uses
        which are the subject of IDEM approval, Essroc must file for
        rezoning to an M-3 zone and/or file for a variance prior to any
        such use at its Speed facility.




Court of Appeals of Indiana | Opinion 10A04-1709-PL-2199 | April 18, 2019     Page 10 of 38
(Id. at 126-7.) Essroc filed a petition with the CCBZA for administrative appeal

of that Determination. The CCBZA held a hearing and then affirmed the

Determination in an order that provided, in necessary part:


               2.      This action was brought by Essroc pursuant to I.C.
        36-7-4-918.1 (1) claiming to be aggrieved by the Determination
        relating to its intended burning of hazardous materials, and the
        requirement that Essroc file a petition to rezone its real estate
        from its present M-2 zoning to an M-3 zoning designation or in
        the alternative to file a Petition for a use variance of its real estate
        to burn hazardous wastes, to store hazardous wastes and treat
        hazardous wastes. The contents of the Determination are
        incorporated herein by reference as if full [sic] set out herein.


              3.     This action is necessary and is also brought
        pursuant to Article XXII of the Clark County Zoning Ordinance
        (the “Ordinance”)[.]


               4.     The real estate which is the subject of this appeal is
        that of Essroc at 301 U.S. 31 Sellersburg, Indiana (the “Real
        Estate”), is currently zoned “M2 (Heavy Industrial)” and has
        been so zoned at all pertinent times.


                5.    On January 26, 2015, without a public hearing
        and/or public meeting, but apparently in a meeting with Essroc
        on January 22, 2015, the then Executive Director of the Clark
        County Plan Commission, Michael Tackett issued a
        determination that Essroc Cement was able to, as a matter of
        right, burn regulated liquid waste-derived fuel at its location
        without a zoning change and/or a zoning variance from its M2
        zoning district (the “Interpretation”).




Court of Appeals of Indiana | Opinion 10A04-1709-PL-2199 | April 18, 2019     Page 11 of 38
               6.    The “M2 (Heavy Industrial)” in the Ordinance does
        not allow the destruction or recycling [or] the burning of
        hazardous waste.


               7.    The Intentions of Article XVI: M2 Heavy Industrial
        in the Ordinance state:


                 Heavy industrial district is intended for those heavy
                 industrial uses that are typically characterized by
                 objectionable factors which are exceedingly difficult to
                 eliminate. These industries are therefore buffered by
                 efficient [sic] areas that minimize any adverse effects and
                 wherever practical the district is removed as far as possible
                 from residential areas buffered by intervening industrial
                 districts.


               8.    Pursuant to the Ordinance the only zoning district
        in Clark County, Indiana allowing the burning of hazardous
        waste is an “M3 Hazardous Waste Disposal District” in Clark
        County, Indiana, and the same is described in Article XVII of the
        Ordinance.


             9.    The Intentions of Article XVII: M3 Hazardous
        Waste Disposal District in the Ordinance state:


                 This district is restricted to facilities for the disposal,
                 destruction, or recycling of toxic chemicals, radioactive
                 wastes, heavy metals, asbestos or other forms of hazardous
                 waste whether through incineration, land filling, or other
                 mechanical, chemical, or technological means.


              10. Under “Permitted Uses” in Article XVII (M3) the
        Ordinance further provides in pertinent part: “No building,



Court of Appeals of Indiana | Opinion 10A04-1709-PL-2199 | April 18, 2019   Page 12 of 38
        structure or premises shall be used, arranged or designed to be
        use[d] except for one or more of the following uses:


                 (e) Storage processing and recycling of hazardous
                 materials.”


               11. Additionally under the Ordinance the M3 district
        requires special setback requirements: “No M3 use shall be
        located within one mile of any business, residence, church,
        school, health care facility, or child care facility as measured
        from the point of admission discharge or regulate[d] activity to
        the nearest property line.”


               12. In a letter to David Nachand dated December 19,
        2014, Essroc’s counsel (the “Essroc Letter”) acknowledges the
        alternative fuels (“solvents, paints, etc . . .”) are “hazardous” and
        further indicates these hazardous materials would be
        “transported by truck” to Essroc’s Speed, Indiana facility from its
        Logansport facility then stored at the Speed, Indiana facility until
        pumped for processing as fuel.


               13. Additionally in the Essroc Letter to David
        Nachand, Essroc’s counsel represented, it “does not in any
        manner intend to construct or operate facilities constituting a
        landfill, waste transfer facilities, recycling facilities and related
        operations or storage processing and recycling of hazardous
        materials that would most likely require rezoning to M# [sic]
        (hazardous waste disposal) District.”


               14. As background evidence reveals, in 1993 the Clark
        County Commissioners responded/reacted to the very same
        issue after Essroc had applied for a similar permit in 1992 to burn
        hazardous waste at its Speed, Indiana facility by the passage of
        the M3 zoning designation.


Court of Appeals of Indiana | Opinion 10A04-1709-PL-2199 | April 18, 2019       Page 13 of 38
                15. In principle Essroc’s present intended use is no
        different than its 1992 request to burn hazardous fuels and since
        that time the Clark County Commissioners enacted legislation
        governing hazardous materials in the County and created the M3
        district in the Ordinance.


               16. The Interpretation by the then Executive Director’s
        [sic] was based upon the representations made in the Essroc
        Letter by Essroc’s counsel.


               17. That the Interpretation of the then Executive
        Director of the Plan Commission was the result of a private
        meeting (not a public meeting or hearing) and without notice to
        neighboring property owners as required by notice requirements
        of the Ordinance pertaining to Essroc’s requested burning of
        hazardous materials in violation of the Ordinance.


              18. The Interpretation by the then Executive Director
        was improper [and] incorrect[,] as the intended use by Essroc,
        according to its own filing with the Indiana Department of
        Environmental Management (“IDEM”) for a RCRA Permit
        (VFC#80012744) its new intended use [sic] stated it as a
        “Hazardous Waste Storage Facility; Hazardous Waste
        Treatment Facility.”


                19. Essroc in February of 2015 also applied to modify
        (significantly) it[s] Part 70 Operation Permit (“Title V Permit”) to
        begin utilizing LWDF. The preliminary findings of IDEM
        conclude that Essroc will construct a RCRA LWDF waste
        receiving and storage facility at it[s] Real Estate.


             20. The proposed use by Essroc is a prohibited use in an
        M2 zoning district in Clark County, Indiana.



Court of Appeals of Indiana | Opinion 10A04-1709-PL-2199 | April 18, 2019   Page 14 of 38
                     21. The Determination should be affirmed in all
               respects requiring Essroc to file a Petition for Rezoning [of] the
               Real Estate or a Petition for a Use [V]ariance for its intended
               uses which are the subject of the IDEM approval.


                     22. If either Petition is filed by Essroc the Plan
               Commission or the Board of Zoning Appeals shall give the
               proper statutory considerations pursuant to I.C. 36-7-4-603 or 36-
               7-4-918.4 respectively to the petition(s) filed.


                     23. This decision is a “Zoning Decision” as the same is
               defined by I.C. 36-7-4-1016, and is subject to “Judicial Review”
               pursuant to I.C. 36-7-4-1600 et seq.


       (Id. at 185-8.)


[10]   Essroc petitioned the trial court for review on September 14, 2016. The

       CCBZA answered that petition on September 20, 2016. On December 13,

       2016, the certified administrative record was filed. Sierra Club thereafter

       petitioned the court to intervene as a respondent, and on February 3, 2017, the

       trial court granted Sierra Club’s motion to intervene. On April 24, 2017, Essroc

       moved for summary judgment. On June 21, 2017, CCBZA moved for

       dismissal and for summary judgment against Essroc, and Sierra Club moved for

       summary judgment against Essroc. On July 18, 2017, Essroc filed a summary

       judgment reply brief and a motion for a summary judgment hearing.


[11]   On July 24, 2017, the trial court affirmed the decision of the CCBZA in an

       order containing findings and conclusions. (See App. Vol. IV at 94-8.) On

       August 22, 2017, Essroc filed a motion to correct error. The trial court held a

       Court of Appeals of Indiana | Opinion 10A04-1709-PL-2199 | April 18, 2019    Page 15 of 38
       hearing, see supra n.1, and then, on September 7, 2017, affirmed its judgment in

       favor of the CCBZA. (See id. at 129-30.) The order on rehearing also modified

       one of the trial court’s findings, number 18, from its original judgment, which

       we will explain in more detail when we reach Essroc’s final issue on appeal.



                                   Discussion and Decision
[12]   Essroc appeals following the trial court’s affirmation of the CCBZA’s decision.

       When reviewing a zoning board’s decision, we are bound by the same standard

       of review as the trial court. Flat Rock Wind, LLC v. Rush Cty. Area Bd. of Zoning

       Appeals, 70 N.E.3d 848, 857 (Ind. Ct. App. 2017), trans. denied. The trial court

       is not permitted to conduct a trial de novo, and instead neither that court nor this

       one may reweigh the evidence or reassess the credibility of witnesses. Id. We

       may grant relief from the zoning board’s decision


               . . . 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 | Opinion 10A04-1709-PL-2199 | April 18, 2019   Page 16 of 38
               (5) unsupported by substantial evidence.


       Ind. Code § 36-7-4-1614(d). “The burden of demonstrating the invalidity of a

       zoning decision is on the party to the judicial review proceeding asserting

       invalidity.” Ind. Code § 36-7-4-1614(a). Thus, Essroc has the burden on appeal

       to demonstrate error by the CCBZA.


       I. Does the CCZO permit the burning of LWDF on land zoned M2 or only on
                                    land zoned M3?

[13]   “Construction of a zoning ordinance is a question of law.” Flying J., Inc. v. City

       of New Haven, Bd. of Zoning Appeals, 855 N.E.2d 1035, 1039 (Ind. Ct. App.

       2006), reh’g denied, trans. denied. Regulations that impair the use of real property

       are strictly construed because they “are in derogation of the common law.” Id.

       We therefore will not extend zoning regulations by implication. Id.


[14]   When we must construe a zoning ordinance, we apply the same rules of

       construction that we use on statutes. Flat Rock Wind, 70 N.E.3d at 857.

       Specific ordinances control over general ordinances, and ordinances that “relate

       to the same general subject matter” should be construed together. Id.


               [T]he express language of the ordinance controls our
               interpretation and our goal is to determine, give effect to, and
               implement the intent of the enacting body. When an ordinance
               is subject to different interpretations, the interpretation chosen by
               the administrative agency charged with the duty of enforcing the
               ordinance is entitled to great weight, unless that interpretation is
               inconsistent with the ordinance itself. If a court is faced with two
               reasonable interpretations of an ordinance, one of which is
               supplied by an administrative agency charged with enforcing the

       Court of Appeals of Indiana | Opinion 10A04-1709-PL-2199 | April 18, 2019   Page 17 of 38
               ordinance, the court should defer to the agency. Once a court
               determines that an administrative agency’s interpretation is
               reasonable, it should end its analysis and not address the
               reasonableness of the other party’s interpretation. Terminating
               the analysis reinforces the policies of acknowledging the expertise
               of agencies empowered to interpret and enforce ordinances and
               increasing public reliance on agency interpretations.


       Hoosier Outdoor Advert. Corp. v. RBL Mgmt., Inc., 844 N.E.2d 157, 163 (Ind. Ct.

       App. 2006) (internal references omitted), trans. denied.


[15]   The CCBZA’s decision provided in relevant part:


                      6.    The “M2 (Heavy Industrial)” in the Ordinance does
               not allow the destruction or recycling [or] the burning of
               hazardous waste.


                                                      *****


                      8.    Pursuant to the Ordinance the only zoning district
               in Clark County, Indiana allowing the burning of hazardous
               waste is an “M3 Hazardous Waste Disposal District” in Clark
               County, Indiana, and the same is described in Article XVII of the
               Ordinance.


                                                      *****


                     18. The Interpretation by the then Executive Director
               was improper [and] incorrect[,] as the intended use by Essroc,
               according to its own filing with the Indiana Department of
               Environmental Management (“IDEM”) for a RCRA Permit
               (VFC#80012744) its new intended use [sic] stated it as a
               “Hazardous Waste Storage Facility; Hazardous Waste
               Treatment Facility.”
       Court of Appeals of Indiana | Opinion 10A04-1709-PL-2199 | April 18, 2019   Page 18 of 38
                        19. Essroc in February of 2015 also applied to modify
                (significantly) it[s] Part 70 Operation Permit (“Title V Permit”) to
                begin utilizing LWDF. The preliminary findings of IDEM
                conclude that Essroc will construct a RCRA LWDF waste
                receiving and storage facility at it[s] Real Estate.


                     20. The proposed use by Essroc is a prohibited use in an
                M2 zoning district in Clark County, Indiana.


                      21. The Determination should be affirmed in all
                respects requiring Essroc to file a Petition for Rezoning [of] the
                Real Estate or a Petition for a Use [V]ariance for its intended
                uses which are the subject of the IDEM approval.


       (App. Vol. II at 186, 188.)


[16]   Essroc asserts “that its proposed use of alternative fuels is a permitted use as a

       matter of right in the M2 district.” (Reply Br. at 21.) The CCZO defines a

       “permitted use” as the “uses 4 which are allowed within a specific zoning

       district.” (App. Vol. III at 20 (footnote added).) The CCZO explains the “M2

       Heavy Industrial” district to have the following intention and permitted uses:


                Intention of District – Heavy industrial district is intended for
                those heavy industrial uses that are typically characterized by
                objectionable factors which are exceedingly difficult to eliminate.
                These industries are therefore buffered by efficient [sic] areas that
                minimize any adverse effects and wherever practical this district




       4
         A “use” is defined as the “purpose or activity for which the land or building thereon is designed, arranged
       or intended, or for which it is occupied or maintained.” (App. Vol. III at 23.)

       Court of Appeals of Indiana | Opinion 10A04-1709-PL-2199 | April 18, 2019                        Page 19 of 38
           is removed as far as possible from residential areas buffered by
           intervening minor industrial districts.


           Permitted Uses – No building[,] structure[,] or premises shall be
           used, arranged[,] or designed to be used except as one or more of
           the following uses:


           (a) Any use permitted in the M1 district (with the exception of
           Day Care Centers and Churches); 5


           (b) Creosote manufacturing and treatment of petroleum products;




5
    Uses permitted in the M1 district include:

           (a) Any permitted in the B2 or B3 districts (no residential uses); (b) Engineering or research
           laboratories, vocational or industrial training facilities, data processing or analysis; (c) Light
           manufacturing including processing, refining, fabricating, assembly cleaning, testing, or
           repairing of goods, materials or products; (d) Enclosed wholesaling and warehousing
           packaging, storage or distribution facilities; (e) General offices associated with an industrial
           use including service facilities for employees or 1[sic] guests provided that any service
           facility shall be entirely enclosed within a building; (f) Utility installations and facilities; (g)
           Accessory uses which are incidental or commonly associated with the operation or
           permitted use including recreational areas for employees, lodging facilities for owners,
           guards, or care takers; (h) Bakeries, secondary food processing, milk processing,
           manufacture and bottling of dairy products and beverages; (i) Machine, welding, tool and
           die shops and electroplating operations; (j) Manufacture of cloth, jewelry and leather
           products; (k) Biological, medical and cosmetic manufacturing; (l) Manufacture and
           assembly of optical goods, musical and recording instruments, office machinery, electrical
           and mechanical; (m) Manufacture and assembly of marine, office, household appliances,
           furniture, communication and automobile equipment, air conditioning, heating, and
           refrigeration equipment; (n) Can and container manufacture, processing and milling of
           forest products; (o) Dyeing and cleaning works and services such as linen suppliers, freight
           movers and communication and canteen operations; (p) Trucking and railroad terminals;
           (q) Upholstering and leather goods manufacture; (r) Cannery, bottling, processing, and
           packaging of food and beverages, granaries, grain processing, meat processing and starch
           manufacture; (s) Vehicle impound lots with no more than one (1) vehicle per 30 square feet
           of outdoor vehicle storage space (excluding stacking of vehicles) located entirely on
           concrete or adphalt [sic], fenced on all sides, and with no license plate expired more than
           thirty (30) days. This use shall not include parking lots[;] (t) Other uses comparable and
           compatible to those set forth in in this Article.
(App. Vol. III at 43-4) (formatting altered).

Court of Appeals of Indiana | Opinion 10A04-1709-PL-2199 | April 18, 2019                                 Page 20 of 38
        (c) Foundry, smelting operations, metal forging, fabricating,
        rolling and stamping operations;


        (d) Boiler manufacturing, structural steel fabricating, general
        manufacturing assembly plants;


        (e) Railroad equipment manufacturing, repair and service yards.


        (f) Manufacturing of soaps, pharmaceutical paper products,
        manufacturing of malt products, brewing distillation of liquor
        and spirits, poultry hatchery, stone works and stone cutting,
        thermal, electric, and steam power plants;


        (g) Concrete mixing, production of concrete blocks and shapes,
        cinder blocks and other similar building materials manufactured;


        (h) Mining, extraction, washing, and processing of sand, gravel,
        and other minerals;


        (i) Manufacture and assembly of glass, plastic and rubber
        products and implements;


        (j) Manufacture of colors, dye, paint and other coatings, and tar
        products;


        (k) Other uses comparable and compatible to those set forth in
        this Article.


        (l) Municipal solid waste landfill (non-hazardous) as defined by
        329 IAC 10-2-116, as the same may be amended from time-to-
        time.




Court of Appeals of Indiana | Opinion 10A04-1709-PL-2199 | April 18, 2019   Page 21 of 38
       (App. Vol. III at 46) (emphases in original) (footnote added). Contrary to

       Essroc’s assertion, the storage and burning of hazardous materials does not fit

       into any one of the Permitted Uses listed for the M2 district.


[17]   The CCBZA determined the only zoning district that would permit the burning

       of hazardous wastes is the M3 district. According to the CCZO, the intention

       of and permitted uses in an “M3 Hazardous Waste Disposal District” are:


               Intention of District – This district is restricted to facilities for
               the disposal; [sic] destruction, or recycling of toxic chemicals,
               radioactive wastes, heavy metals, asbestos and other forms of
               hazardous waste whether through incineration, land filling, or
               other mechanical, chemical, or technological means.


               Permitted Uses – No building, structure or premises shall be
               used, arranged or designed to be used except for one or more of
               the following uses:


                        (a) Any use permitted in the M2 district (no Day Care
                        Centers or Churches);


                        (b) Landfill;


                        (c) Waste transfer facilities;


                        (d) Recycling facilities and related operations;


                        (e) Storage[,] processing[,] and recycling of hazardous
                        materials.


       (Id. at 49) (emphases in original).

       Court of Appeals of Indiana | Opinion 10A04-1709-PL-2199 | April 18, 2019       Page 22 of 38
[18]   Essroc first claims that “by the clear and unequivocal terms of the provisions of

       the Zoning Ordinance, the receiving and storage of waste, in and of itself, is

       insufficient to mandate rezoning to M3.” (Br. of Appellant at 31.) However,

       this claim begins with a faulty factual premise as Essroc does not intend to

       simply receive and store LWDF. Essroc intends to pump the stored LWDF to

       its kiln and burn it as fuel in the kiln.


[19]   Essroc next argues its conversion to LWDF as an alternate fuel for its kiln does

       not fit into any of the M3 Permitted Uses because it is not engaging in

       “[s]torage[,] processing[,] and recycling of” LWDF. (See App. Vol. III at 49.)

       Because that pertinent phrase from the ordinance contains the “and”

       conjunction, Essroc asserts, the “plain, ordinary, and obvious meaning of the

       phrase ‘storage processing and recycling of hazardous materials’ dictates that

       Essroc would have to be engaging in the totality of these acts in order to require

       M3 zoning to permit them.” (Br. of Appellant at 32 (emphasis in original).)

       Essroc does not explain which of those three acts it does not believe it will be

       performing and, as such, has not demonstrated error. See Kentucky Nat. Ins. Co.

       v. Empire Fire & Marine Ins. Co., 919 N.E.2d 565, 586 (Ind. Ct. App. 2010) (when

       party fails to explain how law applies to evidence, it has not demonstrated error

       in the appealed decision).


[20]   Nevertheless, it seems apparent that Essroc intends to store, process, and

       recycle liquid hazardous waste. Essroc’s proposal indicated it would build

       additional storage tanks to hold the LWDF, see storage, Webster’s Third New

       International Dictionary Unabridged 1976 at 2252 (G. & C. Merriam Co. 1976)

       Court of Appeals of Indiana | Opinion 10A04-1709-PL-2199 | April 18, 2019   Page 23 of 38
       (“the safekeeping of goods in a warehouse or other depository”); pump the

       LWDF through pipes from the storage tanks to the kiln, see process, id. at 1808

       (“to move along: GO; esp: to move along in or as if in a procession”) (emphases

       in original); 6 and burn the hazardous waste as a fuel for production of concrete.

       See recycle, www.dictionary.com/browse/recycling# (last visited March 12,

       2019) (“to alter or adapt for new use without changing the essential form or

       nature of” or “to use again in the original form or with minimal alteration”).


[21]   Finally, CCBZA notes that Essroc’s plan to store LWDF, pump it to the kiln,

       and burn it as fuel fits squarely within the intention for which the M3 district

       was created – “for the disposal[,] destruction, or recycling of toxic chemicals . . .

       and other forms of hazardous waste whether through incineration, land filling,

       or other mechanical, chemical, or technological means.” (Appellant’s App.

       Vol. III at 49.)


[22]   For all these reasons, we affirm the CCBZA’s findings that Essroc’s burning of

       hazardous waste is prohibited in the CCZO’s M2 district but permitted in its

       M3 district.




       6
         Processing can also indicate actions taken to alter a product. www.dictionary.com/browse/processing (“to
       treat or prepare by some particular series of actions”) (last visited March 20, 2019). If processing is given this
       meaning, then it is redundant with recycling. www.dictionary.com/browse/recycling?s=t (“to treat or
       process (used waste materials) so as to make suitable for reuse”) (last visited March 20, 2019).

       Court of Appeals of Indiana | Opinion 10A04-1709-PL-2199 | April 18, 2019                           Page 24 of 38
         II. Can Essroc nevertheless burn LWDF on its land as an “accessory use”?

[23]   Essroc asserted to the CCBZA that its proposed use of LWDF should be

       “permitted as an accessory use as a matter of law.” (App. Vol. II at 149)

       (capitalization removed). The CCBZA rejected Essroc’s accessory use

       argument when entered an order that affirmed the staff decision of June 27,

       2016, prohibiting Essroc from using LWDF without obtaining a variance or re-

       zoning its property.


[24]   On appeal, Essroc first notes “Indiana recognizes the doctrine of accessory use,

       under which the right to establish and maintain a commercial or nonresidential

       use normally includes the right to add accessory uses which are secondary to

       the permitted one.” (Br. of Appellant at 36.) Essroc then argues the accessory

       use of LWDF should be permitted on its property because: (1) “Essroc’s long-

       standing primary use (i.e., cement production) would continue without

       change,” (id.), and (2) that “accessory use will not in any manner alter or

       change the character of the primary use to one which requires a change of

       zoning designation to M3 (Hazardous Waste Disposal).” (Id. at 37.) In

       support of that argument, Essroc cites Flying J., in which we determined the

       overnight parking for RVs and Semi-trucks was a permissible accessory use of a

       travel plaza because such parking “would be subordinate to the primary uses of




       Court of Appeals of Indiana | Opinion 10A04-1709-PL-2199 | April 18, 2019   Page 25 of 38
       the travel plaza and would not change the character of the travel plaza.” 855

       N.E.2d at 1043. 7


[25]   We cannot, however, agree with Essroc that burning of LWDF can be

       permitted as an accessory use in the M2 district (or any other zoning district in

       Clark County, for that matter). 8


                We note that one long-standing rule of statutory construction is
                that expressed in the principle expressio unius est exclusio alterius,
                which means that the enumeration of certain things in a statute
                necessarily implies the exclusion of all others. This principle is
                particularly appropriate where the same term is present in certain
                portions of the same enactment, but not in other portions. . . .
                [W]here an ordinance specifically lists a use in one category but
                not another, that use will be assumed a permitted use only in the
                category where it is mentioned.




       7
         We applied that two-part test in Flying J. because the New Haven Zoning Code defined “accessory use” as
       a “building or use subordinate to another structure or use located on the same lot and which does not change
       or alter the character of the premises.” Flying J., Inc., 855 N.E.2d at 1042 (quoting and citing the Record).
       Clark County, however, adopted a different definition of “accessory use” than the one discussed in Flying J.
       Pursuant to the CCZO, an “Accessory Use and Structure” is:
                One which (a) is subordinate to and serves a principal building or use; (b) is subordinate in
                area, extent or purpose to the principal building or use served; (c) contributes to the
                comfort, convenience or necessity of occupants of the principal building or use serve[d];
                and (d) is located on the same lot as the principal building or use served with the single
                exception of such accessory off-street parking facilities as are permitted to locate elsewhere
                than on the same lot with the building or use served.
       (App. Vol. III at 12.) Essroc has not explained whether or how burning LWDF to produce cement would
       qualify as an accessory use under the CCZO’s definition. As such, this argument is waived. See Kentucky
       Nat. Ins. Co., 919 N.E.2d at 586 (failure to cite relevant authority and develop argument results in waiver).
       This oversight has not impacted our decision however because, as explained further herein, the “[s]torage
       processing and recycling of hazardous materials” is permitted only in the M3 district. (App. Vol. III at 49.)
       8
         We accordingly need not address the CCBZA’s argument that no accessory uses are permitted in the M2
       district because the CCZO lists accessory uses as a permitted use in every zoning district except M2 and M3.
       (See CCBZA Br. at 26.)

       Court of Appeals of Indiana | Opinion 10A04-1709-PL-2199 | April 18, 2019                          Page 26 of 38
       Brandmaier v. Metro. Dev. Comm’n of Marion Cty., 714 N.E.2d 179, 180-81 (Ind.

       Ct. App. 1999), reh’g denied, trans. denied.


[26]   The CCZO provides the storage, processing, and recycling of hazardous wastes

       is a use allowed in only the M3 district. As such, it cannot be permitted in any

       other zoning district. See, e.g., id. (where sale of fireworks explicitly permitted

       in C-4 zone, court would not infer that sale of fireworks was permitted in a C-3

       district that permits “development of a complete range of retail sales”).


          III. Does Plan Commission staff have the authority to revoke a prior staff-
         issued, non-public, informal zoning determination letter by sending another
                    staff-issued, non-public, zoning determination letter?

[27]   The powers of a zoning board are limited strictly to those provided in the

       authorizing statute, Flat Rock Wind, 70 N.E.3d at 858, and zoning boards are

       “required to follow the provisions of a zoning ordinance.” Flying J., Inc., 855

       N.E.2d at 1042. Whenever there is doubt about whether an agency has a

       power, the doubt must be resolved against the agency. State ex rel. ANR Pipeline

       Co. v. Indiana Dept. of State Revenue, 672 N.E.2d 91, 94 (Ind. T.C. 1996)

       (hereinafter “ANR Pipeline”). Any act by a zoning board that exceeds its

       enumerated powers is “ultra vires and void.” Flat Rock Wind, 70 N.E.3d at 858

       (italics in original).


[28]   Article III of the CCZO states: “It is the intent of this Ordinance that all

       questions of interpretation shall be first presented to the staff. Appeals of staff

       decisions interpreting this Ordinance may be presented to the Board of Zoning



       Court of Appeals of Indiana | Opinion 10A04-1709-PL-2199 | April 18, 2019   Page 27 of 38
       Appeals as provided for in Article XXII [sic].” 9 (App. Vol. III at 170.) The

       CCZO also defines the authority provided to staff:


                The staff is authorized to take those lawful actions necessary to
                enforce the terms of this Ordinance on behalf of the Plan
                Commission and Board of Zoning Appeals. The staff shall also
                have the authority to perform inspections, to review applications,
                and to issue permits. The [s]taff is authorized to make
                inspections of all lands located in the jurisdiction of the Plan
                Commission or to enforce the provisions of this Ordinance. In
                order to execute inspections, the staff shall have the right to enter
                any premises at any reasonable time for the purpose of carrying
                out their duties in the enforcement of this Ordinance. The staff is
                authorized to take any action authorized under Indiana Code IC
                [sic] 36-7-4 et seq. to correct such violations.


       (Id. at 169.)


[29]   In 1926, our Indiana Supreme Court held “power to undo an act once done will

       not be implied from the mere grant of power, in the exercise of a sound

       discretion, to do the act.” Cress v. State, 198 Ind. 323, 333-34, 152 N.E. 822, 826

       (1926). Accordingly, unless the legislature has given clear authority to revoke

       final determinations, administrative bodies do not have the power to change

       their minds after a final determination. See ANR Pipeline, 672 N.E.2d at 94




       9
         Article XXII of the CCZO outlines the purpose and proceedings required to obtain a “special use”
       classification. (See App. Vol. III at 62-7.) Such classifications must be presented to the CCBZA, which “shall
       approve or deny all special uses.” (Id. at 62.) The appeal process for staff decisions is found instead in
       Article XXI. (See id. at 60-1) (“The Board of Zoning Appeals shall approve or deny all . . . [a]ppeals from
       staff decisions.”).

       Court of Appeals of Indiana | Opinion 10A04-1709-PL-2199 | April 18, 2019                       Page 28 of 38
       (“administrative bodies may not usually rescind their final determination absent

       some statutory provision granting that authority”).


               This rule is not absolute, however, for “when an administrative
               agency recognizes its own error of law, it may correct that error.”
               A mistake of law occurs when “a party, having full knowledge of
               the facts, comes to an erroneous conclusion as to their legal
               effect.” Thus, in order to show an error of law occurred . . . , [the
               agency] must cite to a statute, legal principle, or change in case
               law that was neglected or misapplied to the facts.


       Id. (internal citations omitted).


[30]   For example, in ANR Pipeline, ANR Pipeline petitioned the Indiana

       Department of State Revenue asking permission to file amended tax returns to

       recalculate its tax liability based on a “combined basis” rather than the

       “separate company filing method.” Id. at 92. On May 15, 1989, the

       Department granted ANR Pipeline’s petition, so ANR Pipeline filed amended

       returns. Id. The Department, however, rejected the amended returns, stating

       the combined basis method was inappropriate. Id. ANR Pipeline appealed,

       and the Department held a hearing. Id. The Department then issued a Letter

       of Findings (“First LOF”) on December 7, 1993, sustaining ANR Pipeline’s

       protest and giving ANR Pipeline permission to file the amended return using

       the combined basis method. Id. However, on November 7, 1994, the

       Department issued a second Letter of Findings (“Second LOF”) in which it

       asserted it was revoking the First LOF because of a “mistake of law.” Id. at 93.




       Court of Appeals of Indiana | Opinion 10A04-1709-PL-2199 | April 18, 2019   Page 29 of 38
[31]   ANR Pipeline appealed to the Indiana Tax Court, arguing the Department did

       not have the authority to revoke its First LOF. The Department asserted it

       could revoke the First LOF because, as the Second LOF stated, the First LOF

       contained an error of law. 10 Id. at 94. The Tax Court reviewed the record and

       determined the Second LOF had not reversed the First LOF based on an error

       of law:


                [T]he second LOF states on its face that its purpose was to
                revoke the first LOF “as it relates to the finding that the entire
                Costal group may file retroactive combined returns for the years
                1986 and 1987 . . . based upon a mistake of law.” Second LOF
                at 1. However, the Department’s reasoning in the second LOF
                belies this characterization. The first LOF granted ANR
                [Pipeline] the right to file amended combined/unitary returns
                pursuant to IND.CODE ANN. § 6-3-2-2(q). The second LOF
                did not address [that statute] and whether the law was properly
                interpreted and applied in this instance. Rather, the second LOF
                focused on two issues: first, Indiana does not statutorily
                guarantee taxpayers the right to file amended returns, and
                second, amended returns are inappropriate, under federal law,
                where the taxpayer has already selected a valid method of
                taxation but attempts to change to an alternative method merely
                to minimize taxes. Such a change in reasoning does not constitute an
                error of law and does not justify the alteration of a final administrative
                decision.




       10
         The Department also asserted the First LOF could be revoked because it was not a final determination.
       The Tax Court held: “The first LOF was a proper exercise of the Department’s authority pursuant to
       IND.CODE ANN. § 6-8.1-5-1(b) (1989) and constitutes a final determination by the Department.” ANR
       Pipeline, 672 N.E.2d at 94. Herein, we need not determine whether an informal decision by Plan
       Commission staff is a final determination because the first letter issued to Essroc was incorrect as a matter of
       law.

       Court of Appeals of Indiana | Opinion 10A04-1709-PL-2199 | April 18, 2019                          Page 30 of 38
       Id. at 94-5 (emphasis added). Thus, for the Department to have the authority to

       reverse a final determination, the reversal must be required by an actual error of

       law, not simply a change of reasoning. See id. at 95.


[32]   Here, in contrast, Plan Commission staff revoked the first letter to Essroc based

       on an actual error of law. In the first letter, staff concluded: “Essroc’s use of

       such alternative fuels will not require a rezoning to M3 (Hazardous Waste

       Disposal District) for any portion of its facilities or the grant of any use

       variance.” (App. Vol. II at 61.) In the second letter, staff concluded that “in

       order to add the uses which are the subject of IDEM approval [hazardous waste

       storage and treatment facility], Essroc must file for rezoning to an M-3 zone

       and/or file for a variance prior to any such use at its Speed facility.” 11 (Id. at

       127.) When Essroc appealed that decision to the CCBZA, the CCBZA found

       and concluded:


                     5.     On January 26, 2015, without a public hearing
                and/or public meeting, but apparently in a meeting with Essroc


       11
          The parties disagree whether Plan Commission staff’s first letter was erroneous because of alleged
       misrepresentations made to staff when Essroc requested the first letter. As Judge Mathias acknowledged
       during oral argument, Essroc’s original letter to the Plan Commission requesting certification of zoning
       compliance for the switch to LWDF contained language sufficiently vague to permit an inference that
       LWDF were not Hazardous Waste. (See App. Vol. II at 53) (stating the “alternative fuels . . . would be
       flammable (as required to create heat for the kiln), and would be accordingly designated as ‘hazardous’ due
       to such flammability”). Counsel for Essroc pointed to statements at the CCBZA hearing that suggested the
       Plan Commission staff had accurate facts when the Plan Commission staff issued the first letter. (See App.
       Vol. III at 184) (“they are claiming here tonight they are doing exactly what they told us the first night”).
       However, the record before us includes neither the packet of materials that Essroc allegedly provided to the
       Plan Commission at their informal meeting in early January 2015 nor a transcript of (or an agreed statement
       of facts regarding) the discussions that occurred that day. We accordingly decline to speculate whether the
       Plan Commission’s original error of law was based on accurate or inaccurate facts. Furthermore, under the
       legal standard set out in ANR Pipeline, we are concerned only with whether the Plan Commission made an
       error of law, not with why that erroneous decision might have been made.

       Court of Appeals of Indiana | Opinion 10A04-1709-PL-2199 | April 18, 2019                       Page 31 of 38
        on January 22, 2015, the then Executive Director of the Clark
        County Plan Commission, Michael Tackett issued a
        determination that Essroc Cement was able to, as a matter of
        right, burn regulated liquid waste-derived fuel at its location
        without a zoning change and/or a zoning variance from its M2
        zoning district (the “Interpretation”).


               6.    The “M2 (Heavy Industrial)” in the Ordinance does
        not allow the destruction or recycling [or] the burning of
        hazardous waste.


                                               *****


               8.    Pursuant to the Ordinance the only zoning district
        in Clark County, Indiana allowing the burning of hazardous
        waste is an “M3 Hazardous Waste Disposal District” in Clark
        County, Indiana, and the same is described in Article XVII of the
        Ordinance.


                                               *****


              18. The Interpretation by the then Executive Director
        was improper, incorrect[,] and as the intended use by Essroc,
        according to its own filing with the Indiana Department of
        Environmental Management (“IDEM”) for a RCRA Permit
        (VFC#80012744) its new intended use [sic] stated it as a
        “Hazardous Waste Storage Facility; Hazardous Waste
        Treatment Facility.”


                19. Essroc in February of 2015 also applied to modify
        (significantly) it [sic] Part 70 Operation Permit (“Title V Permit”)
        to begin utilizing LWDF. The preliminary findings of IDEM
        conclude that Essroc will construct a RCRA LWDF waste
        receiving and storage facility at it [sic] Real Estate.

Court of Appeals of Indiana | Opinion 10A04-1709-PL-2199 | April 18, 2019   Page 32 of 38
                    20. The proposed use by Essroc is a prohibited use in an
               M2 zoning district in Clark County, Indiana.


                      21. The Determination should be affirmed in all
               respects requiring Essroc to file a Petition for Rezoning the Real
               Estate or a Petition for a Use [V]ariance for its intended uses
               which are the subject of the IDEM approval.


       (Id. at 186, 188.)


[33]   The CCBZA correctly determined Essroc’s proposal to receive, store, process,

       and burn LWDF Hazardous Waste could be permitted only on land zoned M3

       under the CCZO. See supra Issue I. Accordingly, the Plan Commission staff’s

       first letter to Essroc was erroneous as a matter of law. Staff therefore had the

       authority to correct its earlier, legally erroneous decision. See, e.g., Civil City of

       Indianapolis v. Ostrom Realty & Const. Co., 95 Ind. App. 376, 176 N.E. 246, 248

       (1931) (“Building permits or licenses issued by the city controller have no force

       and effect to authorize the construction of a building contrary to the

       ordinance.”).


       IV. If Plan Commission staff could revoke the initial staff determination, was
           Essroc entitled to notice and a public hearing before that revocation?

[34]   Essroc asserts it was entitled to notice and a public hearing before Plan

       Commission staff could issue a new staff determination that revoked the prior

       staff determination. In support, Essroc cites Schlehuser v. City of Seymour, 674

       N.E.2d 1009, 1014 (Ind. Ct. App. 1996), which held a board of zoning appeals

       (“BZA”)


       Court of Appeals of Indiana | Opinion 10A04-1709-PL-2199 | April 18, 2019    Page 33 of 38
               had the implied authority to revoke Schlehuser’s variances if they
               were granted subject to reasonable and clearly stated conditions
               of approval and if Schlehuser then failed to meet those
               conditions. However, even in this circumstance, Schlehuser was
               entitled to notice and an opportunity to be heard.


       Id. at 1014. As the CCBZA argues, however, Essroc is misapplying Schlehuser.


[35]   Schlehuser involved the revocation of variances that had been approved by a

       local BZA. As the application process for variances generally requires a public

       hearing before a BZA, during which evidence and argument are presented, (see,

       e.g., App. Vol. III at 60) (providing hearing for variance), then, as we held in

       Schlehuser, subsequent action by a BZA as to those same variances ought also

       require notice and an opportunity to be heard. See Schlehuser, 674 N.E.2d at

       1014.


[36]   Here, though, Essroc was not complaining about a subsequent action by the

       CCBZA, whose rules require public hearing following notice. (See id. at 60)

       (providing Board must set public hearing for appeals of staff decisions). Essroc

       instead is arguing about subsequent action by Plan Commission staff. Essroc

       has not pointed to any section of the CCZO, nor could we find one, that

       requires public notice or a hearing before Plan Commission staff produce an

       opinion letter. (See generally App. Vol. III at 7-10) (explaining the

       administration of the CCZO). As staff opinions are produced without public

       hearing following notice, Essroc has not demonstrated error in staff’s issuance

       of the second letter without a public hearing or notice.


       Court of Appeals of Indiana | Opinion 10A04-1709-PL-2199 | April 18, 2019   Page 34 of 38
        V. Is the CCBZA equitably estopped from requiring Essroc to rezone because
               Essroc spent money in reliance on the first determination letter?

[37]   Essroc argues the CCBZA should be equitably estopped from requiring Essroc

       to obtain a variance or to re-zone its property because “Essroc had expended in

       excess of $1.2 million in reliance on” the Plan Commission’s original zoning

       determination letter. (Br. of Appellant at 36 n.6.) The CCBZA argues Essroc

       waived this argument by failing to raise it before the Board.


[38]   “[A] person may obtain judicial review only of an issue that was raised before

       the administrative agency, with two very limited exceptions . . . .” Roman

       Marblene Co., Inc. v. Baker, 88 N.E.3d 1090, 1098 (Ind. Ct. App. 2017) (citing

       Ind. Code § 4-21.5-5-10), trans. denied. Those two exceptions are:


                (1) the issue concerns whether a person who was required to be
                notified by this article of the commencement of a proceeding was
                notified in substantial compliance with this article; 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 agency action.


       Ind. Code § 4-21.5-5-10. As Essroc’s estoppel argument does not assert a failure

       to notify a required party or a recent change in controlling law, Essroc cannot

       raise this issue during judicial review of the CCBZA’s decision. 12 See, e.g.,




       12
         Had this issue not been waived, “[e]stoppel is not generally applicable against government entitles for the
       actions of public officials.” Barnett v. U.S. Architects, LLP, 15 N.E.3d 1, 10 (Ind. Ct. App. 2014) (quoting
       Biddle v. BAA Indianapolis, LLC, 860 N.E.2d 570, 581 (Ind. 2007)), reh’g denied. There are two reasons for this

       Court of Appeals of Indiana | Opinion 10A04-1709-PL-2199 | April 18, 2019                         Page 35 of 38
       Indiana Educ. Emp’t Relations Bd. v. Tucker, 676 N.E.2d 773, 776-7 (Ind. Ct. App.

       1997) (appellant could not raise impartiality of administrative board for first

       time on appeal; issue waived for failure to raise before administrative agency).


       VI. Should Finding 18, Finding 19, and Conclusion 7 be struck from the trial
         court’s final order because the issue of whether the CCZO is preempted by
                          federal law was not before the trial court?

[39]   The trial court entered two findings and one conclusion regarding whether the

       CCZO’s M3 district is preempted by federal law. 13 All parties seem to agree the




       rule. First, “[i]f the government could be estopped, then dishonest, incompetent or negligent public officials
       could damage the interests of the public.” Id. (quoting Samplawski v. City of Portage, 512 N.E.2d 456, 459
       (Ind. Ct. App. 1987)). Second, “if the government were bound by its employees’ unauthorized
       representations, then government, itself, could be precluded from functioning.” Id. (quoting Samplawski, 512
       N.E.2d at 459).
       13
            The trial court’s original findings and conclusion provided:

                  18.       That Essroc in its Verified Petition (Paragraph 28) waived its rights to argue that
                  the Clark County zoning ordinance zoning classification M3 Hazardous Waste Disposal
                  District is preempted by RCRA.
                  19.      That the Clark County zoning ordinance, I.C. 36-7-4-918.4 (use variance) and I.C.
                  36-7-4-918.5 (developmental variance) all have a basis in public health, safety, morals and
                  general welfare of the community and therefore are not in derogation of federal RCRA
                  law.
                                                              *****
                  7.       The Clark County Zoning Ordinance, I.C. 36-7-4-918.5 and I.C. 36-7-4-918.4 are
                  not preempted by Federal RCRA law as each has a basis in human health or environmental
                  protections.
       (App. Vol. IV at 97, 98.) In the order granting Essroc’s motion to correct error, the trial court modified
       finding 18 to read:
                  That Essroc in its verified Petition (paragraph 28) initially waived its right to argue that the
                  Clark County Zoning Ordinance, zoning classification M3 Hazardous Waste Disposal
                  District is preempted by RCRA, however, such issue was tried by consent of the parties by
                  Essroc arguing that issue in the BZA hearing and by Essroc fully briefing the issue in
                  Article VI of it’s [sic] Brief, responded to and briefed by the BZA in Article IV of it’s [sic]
                  Brief in support of its Cross-Motion for Summary Judgment.
       (Id. at 130.)

       Court of Appeals of Indiana | Opinion 10A04-1709-PL-2199 | April 18, 2019                              Page 36 of 38
       issue could not have been raised in the trial court during judicial review of the

       CCBZA’s decision because the issue had not been raised before the CCBZA.

       Nevertheless, CCBZA and Sierra Club assert we should address this issue

       because it was raised by Essroc and addressed by the trial court.


[40]   As we discussed above, issues can be raised for the first time during judicial

       appeal from an administrative decision only if one of two exceptions is asserted:


               (1) the issue concerns whether a person who was required to be
               notified by this article of the commencement of a proceeding was
               notified in substantial compliance with this article; 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 agency action.


       Ind. Code § 4-21.5-5-10. The federal preemption issue does not arise from a

       change in controlling law that occurred after the CCBZA’s decision, and thus

       neither the trial court nor we can address that issue, which was not presented to

       the administrative board. See, e.g., Tucker, 676 N.E.2d at 776-7 (appellant could

       not raise impartiality of administrative board for first time on appeal; issue

       waived for failure to raise before administrative agency). The trial court erred

       when it entered these findings and conclusion.



                                                 Conclusion
[41]   The CCBZA correctly determined the CCZO permits the storage, processing,

       and recycling of hazardous waste as alternative fuel for production only in the

       Court of Appeals of Indiana | Opinion 10A04-1709-PL-2199 | April 18, 2019     Page 37 of 38
       M3 zoning district. Accordingly, such activity is not available as an accessory

       use in the M2 zoning district. Because the first letter sent to Essroc was legally

       erroneous, Plan Commission staff had the authority to revoke that letter with a

       new letter that corrected its original error of law, and Essroc was not entitled to

       notice and a public hearing before that second letter was issued. As neither

       equitable estoppel nor federal preemption were raised before the CCBZA, those

       issues are unavailable during judicial review of the CCBZA’s decision. As all of

       Essroc’s assertions of CCB2A error fail, we affirm the decision of the CCBZA.


[42]   Affirmed.


       Riley, J., and Mathias, J., concur.




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