MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be                            May 15 2019, 7:48 am

regarded as precedent or cited before any                             CLERK
court except for the purpose of establishing                      Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
R. Patrick Magrath                                       Joshua D. Hershberger
Madison, Indiana                                         Madison, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Mark Goley, et al.,                                      May 15, 2019
Appellant-Intervenors,                                   Court of Appeals Case No.
                                                         18A-MI-1579
        v.                                               Appeal from the Jefferson Circuit
                                                         Court
The White Barn Venue, LLC,                               The Honorable W. Gregory Coy,
Appellee-Plaintiff,                                      Special Judge.
                                                         Trial Court Cause No.
        and                                              39C01-1805-MI-450

Madison City Board of Zoning
Appeals,
Appellee-Defendant.



Tavitas, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-MI-1579 | May 15, 2019              Page 1 of 21
                                                Case Summary
[1]   Mark Goley, Jennifer and William Ison, Sherry and Gary Smith, Nancy and

      Keith Alexander, and Kathy Ayers (“Intervenors”) appeal the trial court’s grant

      of a conditional use permit to White Barn Venue, LLC (“White Barn”) by the

      Madison City Board of Zoning Appeals (“BZA”). We affirm.


                                                       Issues
[2]   The Intervenors raise four issues. 1 We reframe the issues and address the

      following:


               I.       Whether the BZA’s decision to deny White Barn’s
                        conditional use permit was supported by substantial
                        evidence.

               II.      Whether the BZA’s decision to deny White Barn’s
                        conditional use permit was arbitrary and capricious.




      1
        In framing the issues, Intervenors argue that: (1) the BZA was not equitably estopped from denying the
      conditional use permit; (2) the BZA was not collaterally estopped from denying the conditional use permit;
      (3) the BZA had discretion to interpret the zoning ordinance; and (4) the BZA appropriately relied upon facts
      in the record in making factual determinations to deny the conditional use permit. We note that the trial
      court found the BZA’s decision to be unsupported by substantial evidence and arbitrary and capricious.
      Although the trial court mentioned equitable estoppel in discussing another case, the trial court did not find
      that the BZA was equitably estopped; rather, the trial court found the BZA’s decision was arbitrary and
      capricious. The trial court determined that the BZA was collaterally estopped in the context of finding that
      the BZA’s decision was unsupported by substantial evidence. We focus our analysis on the review mandated
      by Indiana Code Section 36-7-4-1614(d) and also consider whether the BZA’s decision was unsupported by
      substantial evidence or arbitrary and capricious.

      Court of Appeals of Indiana | Memorandum Decision 18A-MI-1579 | May 15, 2019                      Page 2 of 21
                                                      Facts
[3]   Bryan and Shelly Dews owned property located within a two-mile buffer zone

      of the City of Madison, Indiana. The property is located on Goins Road near

      the intersection with Thomas Hill Road, and it is zoned residential agriculture.

      The Dews Family wanted to convert the barn on the property into a rustic event

      building called “The White Barn Venue.”


[4]   In March 2016, White Barn 2 filed an application for a conditional use permit to

      use the property for “[a] rustic barn venue with [an] emphasis on weddings.”

      Appellants’ App. Vol. III p. 36. White Barn estimated the cost of work to be

      done at $50,000.00 At the BZA hearing, however, Bryan Dews stated that they

      were investing nearly $300,000.00


[5]   A few neighboring property owners appeared at the BZA hearing on the

      application and expressed concerns about parking, traffic, noise, and alcohol

      consumption. The three-member BZA unanimously approved the conditional

      use permit on the condition that White Barn file annual renewals and cease all

      events by 11:00 p.m. The BZA’s decision was not appealed.




      2
       The 2016 application was filed by Bryan and Shelly Dews, and the 2018 application was filed by White
      Barn. For simplicity, we will refer to the Dews Family as “White Barn.”



      Court of Appeals of Indiana | Memorandum Decision 18A-MI-1579 | May 15, 2019                 Page 3 of 21
[6]   White Barn renovated the barn and property and started hosting weddings in

      June 2017. There were seven events in 2017. Twenty-three events were

      scheduled for 2018, and several events were already booked for 2019.


[7]   Due to a clerical error, the Madison City Plan Commission documented the

      permit as a two-year renewal rather than an annual renewal. White Barn did

      not file a renewal application in March 2017. On February 9, 2018, the Plan

      Commission informed White Barn that it was time to renew the conditional use

      permit. The Commission informed White Barn that the $35.00 renewal fee was

      due before March 9, 2018, for the renewal to be considered at the March 12,

      2018 BZA meeting. White Barn paid the renewal fee.


[8]   At the March 12th BZA meeting, some neighboring property owners appeared

      and opposed the renewal. Because a representative of White Barn was not at

      the meeting, the BZA tabled the matter. 3 The matter was considered again at

      the April 9, 2018 BZA meeting, but it was tabled again to allow White Barn to

      address the neighbors’ concerns.


[9]   On April 13, 2018, the BZA’s attorney sent a letter requesting that White Barn

      “file a new Conditional Use Permit application” by April 18, 2018, to be

      considered at the May 14, 2018 BZA meeting. Appellants’ App. Vol. III p. 42.

      White Barn then filed a Request for Renewal and/or Application for




      3
          They were not required to be at the meeting.


      Court of Appeals of Indiana | Memorandum Decision 18A-MI-1579 | May 15, 2019   Page 4 of 21
       Conditional Use Permit. White Barn contended that it should not be required

       to file a new application and that its application should be considered as a

       renewal.


[10]   At the BZA hearing on May 14, 2018, consideration of the White Barn permit

       issue did not begin until approximately 11:30 p.m. and did not end until

       approximately 2:00 a.m. White Barn’s representative, Mr. Dews, testified that

       he monitors the noise levels inside and outside of the barn with a decibel meter

       throughout the events. According to Mr. Dews, White Barn “took everything

       in[to] consideration,” including tree lines to act as noise barriers, the use of

       indirect lighting, traffic control, parking, and controlling alcohol consumption.

       Appellants’ App. Vol. IV p. 61. On one occasion, an event continued past

       11:00 p.m., and a neighbor complained. Mr. Dews subsequently took measures

       to prevent such an incident from happening again, and he has not received any

       other complaints from the neighbors. Mr. Dews was unaware of any noise

       complaints reported to the County or traffic accidents related to events at the

       property.


[11]   Several neighbors of the White Barn property attended the BZA hearing on

       May 14, 2018. Jennifer Ison expressed concerns regarding headlights

       illuminating her windows, an increase in traffic and noise, a lack of privacy,

       and a decrease in property values. Sherry and Gary Smith also expressed

       concerns regarding headlights shining in their bedroom windows, increased

       traffic and noise, and a decrease in property values. Nancy Alexander

       Court of Appeals of Indiana | Memorandum Decision 18A-MI-1579 | May 15, 2019   Page 5 of 21
       expressed concerns about traffic on Thomas Hill Road because it is curvy and

       narrow. Kathy Ayers, Mark Goley, and Keith Alexander also expressed

       concerns about increased traffic on Thomas Hill Road. The five-member BZA

       denied White Barn’s application for a new application in a 3-2 vote. 4


[12]   In May 2018, White Barn filed a verified petition for judicial review of the

       BZA’s decision. White Barn also filed a petition to stay enforcement of the

       BZA’s order pending the resolution of the petition for judicial review, which the

       trial court granted. Intervenors filed a motion to intervene.


[13]   White Barn argued that the BZA’s decision was arbitrary, capricious, and

       contrary to law because: (1) the decision was “made without consideration and

       in disregard for the facts and circumstances of the case;” (2) the decision “was

       in direct contradiction to a decision on the same issue two years previously;”

       and (3) the decision “was unsupported by substantial evidence.” Appellants’

       App. Vol. V p. 207. White Barn argued that the BZA was giving other

       similarly-situated businesses the “privilege of operating while denying that same

       privilege to” White Barn. Id. at 209. White Barn noted procedural

       irregularities with the hearing because the hearing regarding its application did

       not start until 11:30 p.m. and ended at almost 2:00 a.m. Finally, White Barn




       4
         Only one of the BZA members from the 2016 hearing was present at the 2018 hearing. That member voted
       to approve the conditional use permit in 2016 but voted to deny the permit in 2018.

       Court of Appeals of Indiana | Memorandum Decision 18A-MI-1579 | May 15, 2019               Page 6 of 21
       argued that the BZA was collaterally estopped from denying the application

       because the BZA was “essentially vacat[ing] its prior decision.” Id. at 210.


[14]   After a hearing on June 14, 2018, the trial court entered an order reversing the

       BZA’s denial of White Barn’s application for a conditional use permit. The

       trial court found in part:


               In conclusion, the action by the City of Madison Board of
               Zoning Appeal in denying the Dews’ Application for Conditional
               Use Permit in April, 2018, resulted in prejudice to the Dews as
               follows: the decision was arbitrary, capricious, an abuse of
               discretion, or otherwise not in accordance with law. I.C. 36-7-4-
               1614(d)(1). Further, the decision was unsupported by substantial
               evidence. I.C. 36-7-4-1614(d)(5). The court does not find any
               prejudice to the Dews pursuant to the criteria set forth in I.C. 36-
               7-4-1614(d)(2), (3), or (4).


               The court further finds that the Madison City Board of Zoning
               Appeals should be reversed and the BZA be compelled to issue
               the conditional use permit for one (1) year with an effective date
               of April 1, 2018 through March 31, 2019. I.C. 36-7-4-1615(2).
               The Madison City Plan Commission should be ordered to notify
               the Dews in advance when their permit is about to expire; the
               Dews should be required to re-apply annually; and should be
               required to maintain the 11:00 pm. closing time for events.


       Appellant’s App. Vol. VI pp. 35-36. Intervenors now appeal.


                                                   Analysis
[15]   Intervenors appeal the trial court’s grant of White Barn’s petition for judicial

       review. A trial court and an appellate court both review the decision of a
       Court of Appeals of Indiana | Memorandum Decision 18A-MI-1579 | May 15, 2019   Page 7 of 21
       zoning board with the same standard of review. St. Charles Tower, Inc. v. Bd. of

       Zoning Appeals of Evansville-Vanderburgh Cty., 873 N.E.2d 598, 600 (Ind. 2007).

       “A proceeding before a trial court or an appellate court is not a trial de novo;

       neither court may substitute its own judgment for or reweigh the evidentiary

       findings of an administrative agency.” Id. “Th[is] standard requires great

       deference toward the administrative board when the petition challenges findings

       of fact or the application of the law to the facts.” House of Prayer Ministries, Inc.

       v. Rush Cty. Bd. of Zoning Appeals, 91 N.E.3d 1053, 1058 (Ind. Ct. App. 2018),

       trans. denied. “But if the allegation is that the [agency] committed an error of

       law, no such deference is afforded and reversal is appropriate if an error of law

       is demonstrated.” Id.


[16]   Indiana Code Section 36-7-4-1614(d) provides that a reviewing court:


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


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


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


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



       Court of Appeals of Indiana | Memorandum Decision 18A-MI-1579 | May 15, 2019   Page 8 of 21
               (4) without observance of procedure required by law; or


               (5) unsupported by substantial evidence.


       The party seeking judicial review has “[t]he burden of demonstrating the

       invalidity of a zoning decision.” Ind. Code § 36-7-4-1614(a). The trial court

       here found the BZA’s decision was both unsupported by substantial evidence

       and arbitrary and capricious. We will address both issues.


                                           I. Substantial Evidence

[17]   Under Indiana Code Section 36-7-4-1614(d)(5), we must review whether the

       BZA’s decision was “unsupported by substantial evidence.” “Substantial

       evidence is such relevant evidence as a reasonable mind might accept as

       adequate to support a conclusion.” Rice v. Allen Cty. Plan Comm’n, 852 N.E.2d

       591, 597 (Ind. Ct. App. 2006), trans. denied. Substantial evidence requires

       “more than speculation and conjecture.” Id. Evidence is substantial “if it is

       more than a scintilla and less than a preponderance.” Id.


[18]   On this issue, the trial court found:


               [T]he court finds that the Board decision was not supported by
               substantial evidence. The Dews produced substantial evidence
               that the White Barn Venue complied with the nine requirements
               of the zoning code as it applies to Conditional Uses. Their
               evidence established that: (1) the venue is a conditional use; (2)
               will be harmonious and in accordance with the City of Madison’s
               comprehensive plan; (3) will be designed, constructed, operated
               and maintained so as to be harmonious and appropriate in

       Court of Appeals of Indiana | Memorandum Decision 18A-MI-1579 | May 15, 2019   Page 9 of 21
        appearance with the existing or intended Character of the general
        vicinity and that such use will not change the essential Character
        of the same area; (4) will not be hazardous or disturbing to
        existing or future neighboring uses; (5) will be served adequately
        by essential public facilities and services such as highways,
        streets, police and fire protection, drainage structures, refuse
        disposal, water and sewer, and schools; or that the persons or
        agencies responsible for the establishment of the proposed use
        shall be able to provide adequately any such services; (6) will not
        create excessive additional requirements at public expense for
        public facilities and services and will not be detrimental to the
        economic welfare of the community; (7) will not involve uses,
        activities, processes, materials, equipment, and conditions of
        operation that will be detrimental to any persons, property, or the
        general welfare by reason of excessive production of traffic,
        noise, smoke, fumes, glare or odors; (8) will have vehicular
        approaches to the property which shall be so designed as not to
        create an interference with traffic on surrounding public
        thoroughfares; and (9) will not result in the destruction, loss, or
        damage of natural, scenic, or historic features of major
        importance. See sec.11.73.


        Although the residents living in the area (who subsequently
        became the intervenors in this lawsuit) expressed concerns
        regarding several issues, there was no evidence to support their
        claims or concerns beyond the self-serving statements of the
        residents themselves. The residents testified as to their concerns
        regarding alcohol consumption at the venue, but there is no
        evidence that there have been any alcohol-related problems or
        accidents related to the White Barn. The owners obtain a proper
        license to serve liquor and also hire properly licensed bartenders
        to serve the liquor, and the guests are “cut off” if they attempt to
        consume too much. Board Record pp. 121-123. There is no
        evidence that the police have been called for any unruly behavior
        at the venue.

Court of Appeals of Indiana | Memorandum Decision 18A-MI-1579 | May 15, 2019   Page 10 of 21
        As for the noise concerns raised by the neighbors, there was no
        evidence that the police have ever been called to the White Barn
        due to excessive noise. Mr. Dews testified before the board that
        the DJ faces away from the road inside the barn and that he uses
        a decibel meter to make sure the sound does not rise above a
        certain level and disturb the neighbors. Mr. Dews stated that
        there is always staff on site to monitor the situation; there was
        one complaint in 2017 but they have taken steps to remedy the
        situation that occurred that time.


        Regarding the light, the neighbors had concerns regarding the
        headlights of vehicles entering and leaving the White Barn venue
        shining into their homes at night, but no evidence that such
        occurred was presented. In fact the Dews presented evidence
        that showed that headlights would not in fact shine into the
        homes of the neighbors across the road.


        As for the traffic complaints, there is no evidence before the
        board that establishes that the increase in traffic due to the events
        at the venue has led to any accidents. While the residents of the
        area have been used to (some for several years) light traffic in the
        area, the wedding venue brings in approximately 40-50 cars
        during an event. This means in 2017 there were seven (7) days
        when traffic on the roads was heavier, and in 2018 there would
        be twenty-three (23) days when the traffic will be greater. The
        Dews close the venue in the colder/wetter months. The
        complaint by Ms. Ayers regarding traffic and her guests being
        frightened by the number of cars they met was of no moment; she
        could not say whether the cars her guests met on the road were
        from the venue or not. Also, the area where Ms. Ayers’ bed and
        breakfast lies on the road is only one of at least three ways to
        reach the venue, so not all traffic traveling to the venue will be
        using that portion of the road.



Court of Appeals of Indiana | Memorandum Decision 18A-MI-1579 | May 15, 2019   Page 11 of 21
        Finally, as to the concerns regarding property values, there was
        no evidence provided to the BZA by the intervenors/neighbors
        that their property values would decrease other than the self
        serving statements of the owners. Prior to the Dews coming in
        and cleaning up the area around the White Barn, the property
        was overgrown and the locals had to clear the roadside. In the
        2016 minutes, Kenny Ison stated that he lives right across the
        road and the fence line was overgrown to the point that he had to
        “go out and break limbs”, and that the view was obstructed. He
        wanted it all cleaned up. Mr. Dews stated the road was
        overgrown and it “looks very bad”; He called it an “eyesore”,
        indicated that it would be bulldozed and cleaned up, and that the
        fence rows would be taken down. To the extent that the Dews
        cleaned up and improved the property to the extent they have,
        the inference that property values have suffered is unsupported by
        substantial evidence.


        Substantial evidence has to be more than speculation or
        conjecture. S & S Enterprises, Inc. v. Marion County Board of Zoning
        Appeals, 788 N.E.2d 485, 491 (Ind. App. 2003). Here, the City of
        Madison Board of Zoning Appeals issued a conditional use
        permit in 2016 to the White Barn under two conditions. They
        heard the concerns of the local neighbors/landowners and
        decided to issue the permit anyway. In 2018, the Dews sought to
        have the Board issue a new conditional use permit; the board
        denied the application. However, the concerns raised at the 2018
        meeting are the [sic] for all intents and purposes the same
        concerns that were raised in 2016. When the facts and
        circumstances which activated a decision are alleged and shown
        to have so changed as to vitiate or materially affect the reasons
        which produced and supported it, and no vested rights have
        intervened, it is reasonable and appropriate to the functions of
        the board that the subject matter be re-examined in light of the
        altered circumstances. Schlehuser v. City of Seymour, 674 N.E.2d
        1009, 1013-1014. It naturally follows that if the facts and

Court of Appeals of Indiana | Memorandum Decision 18A-MI-1579 | May 15, 2019   Page 12 of 21
        circumstances have not materially changed the review may occur
        but the result should be the same. The function of a board of
        zoning appeals is quasi-judicial. It generally has no power to
        review and vacate, rescind or alter its decision after it has been
        made. Id. In the Schlehuser case the trial court affirmed a
        decision by a board revoking previously issued variances. The
        appellate court reversed that portion of the trial court’s ruling,
        stating that the board could certainly revoke the variances if
        Schlehuser failed to meet the conditions that were imposed but
        only if shown by evidence in a hearing.


        In the case at bar, the Dews received the original conditional use
        permit based on two conditions only: annual renewals and
        conclude events by 11:00 pm. The Dews failed to meet one of
        the conditions, that is they failed to renew the permit within one
        year. To that end, their application in 2018 is considered by this
        court to be a new application. However, the concerns and
        conditions which allowed the issuance of the permit in 2016,
        prior to actual events beginning, were the same then as in 2018.
        There being no change in conditions, and the Dews having relied
        on the board’s decision in 2016 before investing tens, if not
        hundreds of thousands of dollars in the venue, then the board in
        2018 was bound by the 2016 decision to issue a new conditional
        use permit. The legality of the issuance of the permit in 2016 is
        of no moment; counsel for intervenors argued that there was not
        a sufficient quorum on all the issues/findings of fact to issue the
        permit in 2016; however, as agreed by all parties, no appeal was
        taken from that decision so it stands. Absent evidence of a
        change in conditions or a failure to meet the previously imposed
        condition of the 11:00 pm. ending, the board in 2018 was
        collaterally estopped from denying the petition.


Appellant’s App. Vol. VI pp. 30-35.



Court of Appeals of Indiana | Memorandum Decision 18A-MI-1579 | May 15, 2019   Page 13 of 21
[19]   The zoning ordinance at issue here provided the following regarding

       conditional use permits:


                It is recognized that an increasing number of new kinds of uses
                are appearing daily, and that many of these and some other more
                conventional uses possess characteristics of such unique and
                special nature relative to location, design, size, method of
                operation, circulation, and public facilities that each specific use
                must be considered individually. These specific uses as they are
                conditionally permitted under the provisions of Article V shall
                follow the procedures and requirements set forth in Sections
                11.71 - 11.78, inclusive. Conditional uses, while requiring special
                consideration by the Board of Zoning Appeals, shall be deemed
                permitted uses in the district in which they are provided.


       Appellants’ App. Vol. VI p. 5. In determining whether to grant an application

       for conditional use permit, the zoning ordinance required the BZA to consider

       several factors: 5




       5
         The BZA and the trial court considered White Barn’s application as a new application rather than a
       renewal. The parties do not direct us to provisions in the Zoning Ordinance that address a party’s failure to
       file a timely renewal of a conditional use permit, and our review does not reveal a provision of the Zoning
       Ordinance directly on point. Section 11.74 of the Zoning Ordinance provides:
             In granting any conditional use, the Board may prescribe appropriate conditions and safeguards
             in conformity with this ordinance. Violations of such conditions and safeguards, when made a
             part of the terms upon which the conditional use is granted, shall be deemed a violation of this
             ordinance and punishable under Section 11.50 of this ordinance.
       Appellants’ App. Vol. VI p. 127. Section 11.50 describes penalties for the violation of ordinances that
       include fines, infractions, and injunctive relief. Regardless, the BZA was permitted to impose conditions on
       the granting of a conditional use permit. Here, the BZA required annual renewals of the permit. Despite the
       BZA’s clerical error in scheduling the permit as a bi-annual renewal, White Barn was specifically made aware
       that it was subject to annual renewals of the permit. Given White Barn’s failure to file a timely annual
       renewal of the application, we agree with the trial court’s determination that White Barn’s application was a
       new application rather than a renewal.

       Court of Appeals of Indiana | Memorandum Decision 18A-MI-1579 | May 15, 2019                     Page 14 of 21
        The Board of Zoning Appeals shall review the particular facts
        and circumstances of each proposed use in terms of the following
        standards and shall find adequate evidence showing that such use
        at the proposed location:


        1. Is in fact a conditional use as established under the provisions
        of Article V and appears on the Official Schedule of District
        Regulations adopted by Section 7.00 for the zoning district
        involved.


        2. Will be harmonious with and in accordance with the general
        objectives, or with any specific objective of the City’s
        Comprehensive Plan and/or the Zoning Ordinance.


        3. Will be designed, constructed, operated, and maintained so as
        to be harmonious and appropriate in appearance with the
        existing or intended character of the general vicinity and that
        such use will not change the essential character of the same area.


        4. Will not be hazardous or disturbing to existing or future
        neighboring uses.


        5. Will be served adequately by essential public facilities and
        services such as highways, streets, police and fire protection,
        drainage structures, refuse disposal, water and sewer, and
        schools; or that the persons or agencies responsible for the
        establishment of the proposed use shall be able to provide
        adequately any such services.


        6. Will not create excessive additional requirements at public
        expense for public facilities and services and will not be
        detrimental to the economic welfare of the community.


Court of Appeals of Indiana | Memorandum Decision 18A-MI-1579 | May 15, 2019   Page 15 of 21
               7. Will not involve uses, activities, processes, materials,
               equipment, and conditions of operation that will be detrimental
               to any persons, property, or the general welfare by reason of
               excessive production of traffic, noise, smoke, fumes, glare, or
               odors.


               8. Will have vehicular approaches to the property which shall be
               so designed as not to create an interference with traffic on
               surrounding public thoroughfares.


               9. Will not result in the destruction, loss, or damage of natural,
               scenic, or historic features of major importance.


       Id. at 5-9.


[20]   During the 2016 conditional use permit application process, the BZA

       unanimously granted the application after considering each of the nine factors

       listed in the zoning ordinance. The BZA was aware at that time that the event

       facility would cause an increase in noise and traffic and granted the petition

       anyway. As the trial court noted, in reliance on the decision, White Barn

       “invest[ed] tens, if not hundreds of thousands of dollars” to remodel the barn

       and property. Id. at 34. During the 2018 application process, the BZA

       considered the same factors and circumstances and reached a different

       decision. 6




       6
        Intervenors argue that White Barn’s application for a conditional use permit should have been denied
       because it qualified as a “Public Assembly” rather than “Other Recreation.” The trial court found:

       Court of Appeals of Indiana | Memorandum Decision 18A-MI-1579 | May 15, 2019                  Page 16 of 21
[21]   In Porter Cty. Bd. of Zoning Appeals v. Bolde, 530 N.E.2d 1212, 1213 (Ind. Ct.

       App. 1988), this court noted: “[G]enerally . . . a zoning board should not

       indiscriminately or repeatedly reconsider a determination denying a variance

       absent a change of conditions or circumstances. If it were otherwise there

       would be no finality to such proceedings.” “It is well established that res

       judicata applies to repeated applications for special exceptions as well as for use

       variances, absent a change of circumstances or conditions.” Bolde, 530 N.E.2d

       at 1213. Although Bolde did not address a conditional use permit, the principle

       is equally applicable here. Absent a change of conditions or circumstances, the

       BZA should reach consistent determinations. See also Marker v. Mandich, 575

       N.E.2d 656, 658-59 (Ind. Ct. App. 1991) (holding that the BZA was bound by

       its earlier revocation of a building permit when considering the same party’s

       petition for a special use permit).


[22]   The trial court analyzed the concerns expressed by the Intervenors and found

       “no evidence to support their claims or concerns beyond the self-serving

       statements of the residents themselves.” Appellants’ App. Vol. VI p. 31. Other

       than Intervenors’ opinions, there was: (1) no evidence of alcohol-related




             The court notes that the intervenors argue that the wedding venue and the events held therein
             constitute a public assembly under the zoning ordinance. This court fails to see how a wedding,
             where guests arrive by invitation only, constitutes a public assembly. A wedding would appear
             to constitute “other recreational use”. See Green v. Hancock County Board of Zoning Appeals, 851
             N.E.2d 962 (Ind. App. 2006).
       Appellants’ App. Vol. p. 35. We agree with the trial court’s interpretation of the ordinance and its reliance
       on Green.

       Court of Appeals of Indiana | Memorandum Decision 18A-MI-1579 | May 15, 2019                      Page 17 of 21
       problems, (2) no evidence of excessive noise complaints, (3) no evidence of

       traffic accidents or issues, (4) no actual evidence of issues with headlights

       shining into houses, (5) no evidence of the amount of increased traffic on

       Thomas Hill Road or whether the traffic is related to White Barn, and (6) no

       evidence of a reduction in property values. 7 We emphasize that substantial

       evidence requires “more than speculation and conjecture.” Rice, 852 N.E.2d at

       597. Essentially, Intervenors presented the same concerns at the 2018 meeting

       that they presented at the 2016 meeting with different outcomes. The trial court

       opined that, “if the facts and circumstances have not materially changed the

       review may occur but the result should be the same.” Appellants’ App. Vol. VI

       p. 34. We agree. The trial court properly found the BZA’s decision was not

       supported by substantial evidence.


                                          II. Arbitrary and Capricious

[23]   The trial court also found that the BZA’s decision was arbitrary and capricious.

       “‘[A]n administrative act is arbitrary and capricious only where it is willful and

       unreasonable, without consideration and in disregard of the facts and

       circumstances in the case, or without some basis which would lead a reasonable

       and honest person to the same conclusion.’” Equicor Dev., Inc. v. Westfield-




       7
         Intervenors argue that White Barn had many more events planned for 2018 than it had in 2017 and that
       White Barn plans to build a carriage house and permanent restrooms at the event facility. The original
       permit did not limit the number of events that could be held at White Barn, and we do not consider this to be
       a change in the circumstances. We further do not consider possible future changes at the facility to be current
       changes in the circumstances.

       Court of Appeals of Indiana | Memorandum Decision 18A-MI-1579 | May 15, 2019                     Page 18 of 21
       Washington Twp. Plan Comm’n, 758 N.E.2d 34, 37 (Ind. 2001) (quoting Dep’t of

       Natural Res. v. Ind. Coal Council, Inc., 542 N.E.2d 1000, 1007 (Ind. 1989), cert.

       denied, 493 U.S. 1078, 110 S. Ct. 1130 (1990)).


[24]   Specifically, the trial court found:


               In the case at bar, the Dews have expended a great deal of money
               to upgrade the White Barn; have already entered into contracts
               for the conducting of weddings in 2018 and 2019; and have
               previously complied with the condition that the events at the
               White Barn end by 11:00 p.m. To deny them a conditional use
               permit now is to take away their opportunity to conduct business
               as they had been promised in 2016. The court finds the action of
               the Board of Zoning Appeals in granting the conditional use
               permit in 2016 and then not allowing the business to continue in
               2018 by denying the permit application is an arbitrary and
               capricious decision that would result in the Dews, who relied on
               the board’s decision in 2016, to suffer great financial loss akin to
               a forfeiture. It appears to the court that even the board members
               themselves were aware of this issue. In the 2016 meeting, Mr.
               Payne stated (according to the minutes) that he did not want this
               “to come back on the board; these folks are spending $50,000 on
               improvements”.


       Appellants’ App. Vol. VI p. 30.


[25]   Intervenors make no specific argument regarding the trial court’s conclusion

       that the BZA’s decision was arbitrary and capricious. Intervenors’ only brief

       mention of this conclusion in their argument is in the section of their brief

       regarding equitable estoppel. Although the trial court mentioned equitable

       estoppel in its discussion of Rice v. Allen Cty. Plan Comm’n, 852 N.E.2d 591 (Ind.
       Court of Appeals of Indiana | Memorandum Decision 18A-MI-1579 | May 15, 2019   Page 19 of 21
Ct. App. 2006), trans. denied, the trial court does not appear to have applied the

doctrine of equitable estoppel in this case. Rather, the trial court found the

decision arbitrary and capricious. By failing to make a specific argument

regarding this conclusion, Intervenors have waived this issue. See Ind.

Appellate Rule 46(A)(8)(a) (requiring contentions to be supported by cogent

reasoning); K.S. v. D.S., 64 N.E.3d 1209, 1212 (Ind. Ct. App. 2016) (“A party

waives any issue for which it fails to develop a cogent argument or support with

adequate citation to authority.”). Waiver notwithstanding, for the same

reasons that we find the BZA’s decision to be unsupported by substantial

evidence, we also agree that the BZA’s denial of the 2018 conditional use

permit was arbitrary and capricious. Again, absent a change of conditions or

circumstances, the BZA should reach consistent determinations. There was no

substantial change of conditions or circumstances between the 2016 and 2018

determinations. The 2018 denial of the permit after White Barn expended

substantial funds in reliance on the 2016 grant of the permit was arbitrary and

capricious. 8




8
 Because we conclude the trial court properly found the BZA’s decision was arbitrary and capricious and
was not supported by substantial evidence, we need not address the other arguments raised by Intervenors.

Court of Appeals of Indiana | Memorandum Decision 18A-MI-1579 | May 15, 2019                  Page 20 of 21
                                                 Conclusion
[26]   The BZA’s decision to deny the conditional use permit application by White

       Barn is not supported by substantial evidence and was arbitrary and capricious.

       We affirm the trial court’s reversal of the BZA’s decision.


[27]   Affirmed.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-MI-1579 | May 15, 2019   Page 21 of 21
