                                                                       FILED
                                                                   Jul 30 2020, 9:06 am

                                                                       CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court




ATTORNEY FOR APPELLANT                                 ATTORNEY FOR APPELLEES
Lisa Diane Manning                                     John J. Moore
Danville, Indiana                                      Touhy Bailey & Moore LLP
                                                       Indianapolis, Indiana



                                             IN THE
     COURT OF APPEALS OF INDIANA

Monster Trash, Inc.,                                        July 30, 2020
Appellant/Petitioner,                                       Court of Appeals Case No.
                                                            20A-PL-918
        v.                                                  Appeal from the Morgan Circuit
                                                            Court1
Owen County Council, Owen                                   The Hon. Matthew G. Hanson,
County Commissioners, and                                   Judge
Owen County Board of Zoning                                 Trial Court Cause No.
Appeals,                                                    55C01-2002-PL-247
Appellee/Respondent.




Bradford, Chief Judge.


                                      Case Summary


1
 This case was initiated in Owen County as cause number 60C02-1912-PL-581 and later transferred to
Morgan County. (Appellant's App. Vol. II p. 2).

Court of Appeals of Indiana | Opinion 20A-PL-918 | July 30, 2020                             Page 1 of 6
[1]   In December of 2018, Monster Trash, Inc., applied to the Indiana Department

      of Environmental Management (“IDEM”) for a license to operate a solid waste

      transfer station at 2243 State Highway 43 in Owen County (“the Property”).

      During the application process, IDEM informed Monster Trash that IDEM

      required a document from an Owen County official indicating that no rezoning

      or variance would be necessary for operation of the proposed waste transfer

      station on the Property. The Owen County Board of Zoning Appeals (“the

      BZA”), the Owen County Council, and the Owen County Commissioners

      (collectively, “the County”) refused to issue the requested document. After

      Monster Trash and the County both petitioned the trial court for declaratory

      judgment, the trial court entered it in favor of the County. Monster Trash

      contends that the trial court erred in so doing. Because we agree with Monster

      Trash, we reverse and remand with instructions.


                              Facts and Procedural History
[2]   At some point before December 28, 2018, Monster Trash applied to IDEM for

      a license to operate a solid waste transfer station on the Property, which is

      zoned “Heavy Industrial.” On December 28, 2018, IDEM responded,

      indicating that, as a condition of approval, Monster Trash was required to

      provide a “document from a county authority confirming zoning requirements

      are not needed for the location of the proposed facility.”2 Appellant’s App. Vol.




      2
        We take this, as do the parties, as a request for a document from the County confirming that rezoning or
      the securing of a variance would not be necessary to operate a solid waste transfer station on the Property.

      Court of Appeals of Indiana | Opinion 20A-PL-918 | July 30, 2020                                    Page 2 of 6
      II p. 15. Following a meeting of the BZA, the County refused to provide the

      requested document.

[3]   On December 23, 2019, Monster Trash petitioned for a declaratory judgment

      that its intended use of the Property was permitted pursuant to the Owen

      County Zoning and Subdivision Control Ordinance (“the Ordinance”). On

      February 11, 2020, Monster Trash moved for summary judgment and reiterated

      its request for declaratory judgment. On February 14, 2020, the County

      responded, arguing that operating a solid waste transfer facility in a Heavy

      Industrial district is absolutely prohibited pursuant to the Ordinance. On

      March 30, 2020, the trial court entered declaratory judgment in favor of the

      County.


                                  Discussion and Decision
[4]   In this case, we review, as the trial court did, the BZA’s refusal to issue a

      document indicating that no rezoning or variance would be necessary for

      Monster Trash’s operation of a waste transfer station on the Property. “This

      court and the trial court are bound by the same standards when reviewing the

      decision of a board of zoning appeals.” Town of Munster Bd. of Zoning Appeals v.

      Abrinko, 905 N.E.2d 488, 491 (Ind. Ct. App. 2009). Indiana Code section 36-7-

      4-1614(d) provides, in part, that a reviewing court should grant relief “if the

      court determines that a person seeking judicial relief has been prejudiced by a

      zoning decision that is […] arbitrary, capricious, an abuse of discretion, or

      otherwise not in accordance with law[.]” “The burden of demonstrating the



      Court of Appeals of Indiana | Opinion 20A-PL-918 | July 30, 2020            Page 3 of 6
      invalidity of a zoning decision is on the party to the judicial review proceeding

      asserting invalidity.” Ind. Code § 36-7-4-1614(a).

[5]           In reviewing an administrative decision, a trial court may not try
              the facts de novo or substitute its own judgment for that of the
              agency. [S&S Enterprises, Inc. v. Marion Cty. Bd. of Zoning Appeals,
              788 N.E.2d 485, 490 (Ind. Ct. App. 2003), trans. denied].
              “Neither the trial court nor the appellate court may reweigh the
              evidence or reassess the credibility of witnesses.” Id. Reviewing
              courts must accept the facts as found by the zoning board. Id.
      Hoosier Outdoor Advert. Corp. v. RBL Mgmt., Inc., 844 N.E.2d 157, 163 (Ind. Ct.

      App. 2006), trans. denied. “Generally, we review questions of law decided by an

      agency de novo.’’ Id. (citing Huffman v. Office of Envtl. Adjudication, 811 N.E.2d

      806, 809 (Ind. 2004)).


[6]   The parties agree that this case turns on interpretation of certain provisions of

      the Ordinance. While the ordinary rules of statutory construction apply in

      interpreting the language of a zoning ordinance, an agency’s construction of its

      own ordinance is entitled to deference. See Story Bed & Breakfast, LLP v. Brown

      Cty. Area Plan Comm’n, 819 N.E.2d 55, 65, 66 (Ind. 2004). The 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. See

      Shaffer v. State, 795 N.E.2d 1072, 1076 (Ind. Ct. App. 2003). 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. See id.


      Court of Appeals of Indiana | Opinion 20A-PL-918 | July 30, 2020               Page 4 of 6
[7]   Chapter 3 of the Ordinance contains the following provision:

              3.5 - Non-Permitted Uses
              All junkyards, race tracks, waste incinerators, and waste transfer
              stations (not licensed and approved by the State of Indiana) are
              non-permitted uses in the Owen County Jurisdictional Area,
              which prohibition cannot be removed by an appeal for a use
              variance to the Owen County Board of Zoning Appeals.
      Appellant’s App. Vol. II p. 43.


[8]   The BZA apparently refused to issue the requested document because it

      interprets the Ordinance as absolutely prohibiting the operation of a solid waste

      transfer station on the Property (an interpretation the County urges on appeal),

      but this is simply not true. Subsection 3.5 of the Ordinance clearly provides

      that such stations are prohibited unless they are “licensed and approved by the

      State of Indiana[,]” which means that they are, in fact, not absolutely

      prohibited. Appellant’s App. Vol. II p. 43. Somewhat inconsistently in light of

      its first assertion, the County also argues that Monster Trash could obtain a

      variance to operate a solid waste transfer station on the Property. This is also

      not true, as Subsection 3.5 clearly provides that variances allowing non-

      permitted uses cannot be issued. In the end, obtaining a State-issued license is

      the only way to legally operate a waste transfer station in the Owen County

      Jurisdictional Area, and applying for a variance would change nothing.

[9]   With this in mind, we now turn to IDEM’s request for the document regarding

      “zoning requirements.” In light of the fact that “zoning requirements” are not,

      in fact, required to operate a solid waste transfer station on the Property (and


      Court of Appeals of Indiana | Opinion 20A-PL-918 | July 30, 2020             Page 5 of 6
       indeed, not even relevant), we have little trouble concluding that not only is the

       County’s refusal to issue the requested document not in accordance with the

       clear provisions of subsection 3.5, it also qualifies as arbitrary, capricious, and

       an abuse of discretion. See Ind. Code § 36-7-4-1614(d)(1) (providing that a

       reviewing court should grant relief if the court determines that a person seeking

       judicial relief has been prejudiced by a zoning decision that is “arbitrary,

       capricious, an abuse of discretion, or otherwise not in accordance with law”).

       We can conceive of no legal justification for refusing to issue a document that

       does nothing more than accurately state the law. Moreover, Monster Trash has

       clearly shown prejudice resulting from the refusal, as it is entirely possible that

       the County’s refusal is the only thing keeping Monster Trash from obtaining

       their State-issued license at this point. Consequently, we reverse the judgment

       of the trial court and remand with instructions to, within thirty days of the

       certification of this memorandum decision, order the BZA to issue a document

       to IDEM and/or Monster Trash confirming that zoning requirements are not

       required for the location of a solid waste transfer station on the Property.

[10]   We reverse the judgment of the trial court and remand with instructions.


       Najam, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 20A-PL-918 | July 30, 2020            Page 6 of 6
