Peggy Bull d/b/a Brown County Getaway v. Brown County Area Board of Zoning Appeals (mem. dec.)

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

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 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

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 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.

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[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.

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 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

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 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

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 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.

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