      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                                Jan 29 2016, 6:52 am
      this Memorandum Decision shall not be
      regarded as precedent or cited before any
      court except for the purpose of establishing
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
      Andrew A. Szakaly                                        David B. Schilling
      Nashville, Indiana                                       Bloomington, Indiana
      Jacob Moore
      Bloomington, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Peggy Bull, d/b/a Brown                                  January 29, 2016
      County Getaway,                                          Court of Appeals Case No.
      Appellant-Petitioner,                                    07A01-1506-PL-747
                                                               Appeal from the
              v.                                               Brown Circuit Court
                                                               The Honorable
      Brown County Area Board of                               Judith A. Stewart, Judge
      Zoning Appeals,                                          Trial Court Cause No.
      Appellee-Respondent.                                     07C01-1501-PL-20




      Kirsch, Judge.


[1]   Peggy Bull, d/b/a Brown County Getaway (“Bull”), appeals the trial court’s

      order affirming the decision of the Brown County Area Board of Zoning


      Court of Appeals of Indiana | Memorandum Decision 07A01-1506-PL-747 | January 29, 2016       Page 1 of 7
      Appeals (“the Board”) that denied Bull’s application for a special exception to

      operate a motel under the Brown County Zoning Ordinance (“Zoning

      Ordinance”) on property owned by Bull in Brown County, Indiana. Bull raises

      the following restated issue on appeal: whether the trial court’s decision was

      arbitrary, capricious, an abuse of discretion, and unsupported by substantial

      evidence.


[2]   We affirm.


                                  Facts and Procedural History
[3]   Bull owns property located off of State Road 46, west of Nashville, Indiana, in

      Brown County, Indiana. The property is zoned R1 under the Zoning

      Ordinance. Bull owns five short-term rental cabins on her property. Two,

      which are located on each end of the group of cabins, are already approved by

      the Board as tourist homes under the Zoning Ordinance. Bull previously

      sought approval from the Board to operate the remaining three cabins as tourist

      homes, but that request was denied because the cabins were too close together

      to meet the guidelines under the then-existing Zoning Ordinance. Bull then

      sought approval from the Board to have the three middle cabins approved as a

      motel, as that term is defined under the Zoning Ordinance. The Zoning

      Ordinance only permits the operation of motels in an R1 zone if a special

      exception is granted by the Board.


[4]   Subsection 3.4(C) of the Zoning Ordinance states that to be eligible for the

      granting of a special exception, a person must apply for an improvement

      Court of Appeals of Indiana | Memorandum Decision 07A01-1506-PL-747 | January 29, 2016   Page 2 of 7
      location permit under section 6.1. Appellant’s App. at 97. On October 17, 2014,

      Bull filed her application seeking approval from the Board for a special

      exception to operate the existing rental cabins as a motel on the three

      contiguous properties she owned. The application included property record

      cards, deeds, digital photographs, and survey drawings of the three properties.

      The application materials did not include any specific information regarding the

      number, size, location, and surface of parking spaces for the proposed motel

      use.


[5]   On December 17, 2014, the Board conducted a public hearing on Bull’s

      application. During the hearing, Bull’s attorney stated that, if the special

      exception was granted, there would be no changes to the appearance or

      operation of the existing rentals. Id. at 12. Several neighbors spoke in

      opposition to Bull’s request and cited complaints of trespassing, excessive noise,

      and the commercialization of the neighborhood associated with the then-

      existing short-term rentals on Bull’s properties. There was concern expressed

      about the lack of safe access to the properties from State Road 46, and Bull

      acknowledged the problem and that it would need to be dealt with. There was

      no testimony presented regarding the number, size, location, and surface of the

      parking spaces for the proposed motel use. Based on the testimony heard, and

      the materials presented, the Board concluded that Bull failed to carry her

      burden of establishing compliance with the special exception criteria contained

      in the Zoning Ordinance and denied Bull’s request.




      Court of Appeals of Indiana | Memorandum Decision 07A01-1506-PL-747 | January 29, 2016   Page 3 of 7
[6]   On January 16, 2015, Bull filed a “Notice of Petition for Writ of Certiorari” and

      a “Verified Petition for Writ of Certiorari” with the Brown Circuit Court. Id. at

      1-2. Bull sought judicial review of the Board’s decision, contending that the

      decision was arbitrary, capricious, an abuse of discretion, and unsupported by

      substantial evidence. A hearing was held on Bull’s petition, after which the trial

      court issued an order affirming the Board’s decision and concluding that

      substantial evidence existed in the Board’s record to support its findings and

      that the findings supported the conclusion that Bull failed to carry her burden of

      showing her compliance with the parking standards under the Zoning

      Ordinance. Bull now appeals.


                                     Discussion and Decision
[7]   When reviewing a decision of a zoning board, this court and the trial court are

      bound by the same standard. Midwest Minerals Inc. v. Bd. of Zoning Appeals of

      Area Plan Dep’t/Comm’n of Vigo Cnty., 880 N.E.2d 1264, 1268 (Ind. Ct. App.

      2008), trans. denied. We presume the determination of the Board, an

      administrative agency with expertise in zoning matters, is correct. Id.

      Therefore, we will reverse only if the Board’s decision is arbitrary, capricious,

      or an abuse of discretion. Id. We will not reweigh the evidence or substitute

      our decision for that of the Board. Id. Thus, Bull labors under a heavy burden

      in urging this court to overturn the Board’s decision. Id.


[8]   A special exception is a use permitted under the zoning ordinance upon the

      showing that certain statutory criteria have been met. S & S Enters., Inc. v.


      Court of Appeals of Indiana | Memorandum Decision 07A01-1506-PL-747 | January 29, 2016   Page 4 of 7
      Marion Cnty. Bd. of Zoning Appeals, 788 N.E.2d 485, 490 (Ind. Ct. App. 2003),

      trans. denied. Some special exception ordinances are regulatory in nature and

      require an applicant to show compliance with the requirements, providing the

      Board with no discretion. Id. The burden of demonstrating satisfaction of the

      relevant statutory criteria rests with the applicant for a special exception. Porter

      Cnty. Bd. of Zoning Appeals v. SBA Towers II, Inc., 927 N.E.2d 915, 922 (Ind. Ct.

      App. 2010) (citing Crooked Creek Conservation & Gun Club, Inc. v. Hamilton Cnty.

      N. Bd. of Zoning Appeals, 677 N.E.2d 544, 548 (Ind. Ct. App. 1997), trans.

      denied). This court has been cautious to avoid imposing upon remonstrators the

      obligation to come forward with evidence contradicting the evidence submitted

      by an applicant. Id. “Since remonstrators need not affirmatively disprove an

      applicant’s case, a board of zoning appeals may deny an application for a

      special exception on the grounds that an applicant has failed to carry its burden

      of proving compliance with the relevant statutory criteria regardless of whether

      remonstrators present evidence to negate the existence of the enumerated

      factors.” Id.


[9]   Bull argues that the trial court’s order affirming the decision of the Board,

      which denied her application for a special exception under the Zoning

      Ordinance, was arbitrary, capricious, an abuse of discretion, and unsupported

      by any evidence. She contends that the finding that she failed to meet her

      burden of demonstrating compliance with the parking requirements contained

      in the Zoning Ordinance was erroneous and not supported by any evidence.

      Bull asserts that she met her burden and introduced substantial evidence before

      Court of Appeals of Indiana | Memorandum Decision 07A01-1506-PL-747 | January 29, 2016   Page 5 of 7
       the Board “consisting of ‘materials’ addressing the parking requirements under

       the Zoning Ordinance.” Appellant’s Br. at 5. She further claims that, after she

       introduced this evidence, the Board failed to introduce any evidence to rebut

       her evidence.


[10]   Under section 3.4 of the Zoning Ordinance, the Board may grant a special

       exception if it finds that “the requirements for special exceptions prescribed by

       [the Zoning Ordinance] will be met.” Appellant’s App. at 97. Subsection 4.12(C)

       of the Zoning Ordinance requires that, when land is designated as a motel use,

       it must provide one parking space per sleeping room. Id. at 111. Subsection

       4.12(D) requires that “[e]ach of the parking spaces required by this section must

       be at least 9 feet wide and twenty feet long, exclusive of passageways.” Id. at

       112. Further, subsection 4.12(E) requires parking spaces to be located on the

       premises or within 300 feet of the premises, but not in the required front yard

       area. Id. Finally, subsection 4.12(F) requires that a parking area, if in the open,

       must be paved with a hard or dustproof surface. Id.


[11]   Here, at the Board hearing, Bull presented the Board with aerial photographs

       and mortgage survey drawings of the proposed motel properties as part of her

       application for a special exception. Although some of the drawings showed the

       locations of the buildings present on the property, none of the materials

       presented to the Board identified or specified the location and size of the

       parking spaces or structures. Neither Bull nor her attorney presented testimony

       to the Board regarding the location and specifications of any parking spaces or

       structures. Bull, therefore, did not provide the Board with sufficient evidence to

       Court of Appeals of Indiana | Memorandum Decision 07A01-1506-PL-747 | January 29, 2016   Page 6 of 7
       determine if the properties complied with the parking requirements contained in

       the Zoning Ordinance. Although Bull argues on appeal that the aerial

       photographs of the properties clearly show “gray areas” adjacent to the cabins

       that are images of the parking located adjacent to the properties, this argument

       was not raised to the Board and is an impermissible request for this court to

       reweigh the evidence, which we cannot do. Midwest Minerals, 880 N.E.2d at

       1268. We conclude that the trial court properly found that Bull failed to meet

       her burden of demonstrating compliance with the parking requirements

       contained in the Zoning Ordinance.


[12]   Affirmed.


       Mathias, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 07A01-1506-PL-747 | January 29, 2016   Page 7 of 7
