ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEES:
JAMES P. FENTON GEORGE M. PLEWS
ALAN VERPLANCK TIMOTHY J. PARIS
Eilbacher Scott, P.C. Plews Shadley Racher & Braun
Fort Wayne, Indiana Indianapolis, Indiana
CATHLEEN M. SHRADER
Barrett & McNagny
Fort Wayne, Indiana
CITY OF NEW HAVEN, INDIANA, ) ) Appellant, ) ) vs. ) No. 02A03-9606-CV-203 ) CHEMICAL WASTE MANAGEMENT OF ) INDIANA, L.L.C., CHEMICAL WASTE ) MANAGEMENT, INC., and WMX ) TECHNOLOGIES, INC., ) ) Appellees. )
CWMI to disprove the Zoning Administrator's allegations contained in the stop
work orders and notices of violation.
2. Whether the trial court erred in finding that a stop work order issued against CWMI was invalid and unenforceable based on vagueness grounds.
CWMI raises several issues on cross-appeal, which we consolidate and restate as:
1. Whether the City's appeal is moot and should be dismissed because this
court has already ruled that the trial court did not err in the entry of the agreed
2. Whether the BZA applied the correct standard to review
CWMI's appeal of the Zoning Administrator's orders.
3. Whether the trial court erred in denying CWMI summary judgment on the issues of institutional bias of the BZA and personal bias of a BZA member.
4. Whether the trial court abused its discretion in permitting the City to intervene permissively in CP-642 and in holding that CWMI was "conditionally" in violation of the stop work orders.
5. Whether the trial court erred in failing to give res judicata or collateral estoppel effect to the judgment in CP-308 denying the City's application for a temporary restraining order against CWMI.
6. Whether the trial court erred in failing to enter summary judgment for CWMI finding that there was not sufficient factual information to determine whether the landfill constituted a "structure" as a matter of law pursuant to the Allen County Zoning Ordinance ("ACZO"), and in failing to enter summary judgment for CWMI that the 1974 covenants were ultra vires, void ab initio, or otherwise unenforceable as a matter of law.
then owner of the original site, Amon Brooks (Brooks), applied for a landfill permit. The
Allen County Zoning Administrator refused to issue the permit and Brooks appealed at a
BZA hearing. On September 17, 1974, the BZA reversed the Zoning Administrator's
decision and ordered the Zoning Administrator to issue the permits to Brooks. Together with
the BZA decision, Brooks agreed to a set of restrictions on his use of the property, recorded
as restrictive covenants. CWMI acquired ownership of the original site on July 2, 1981.
A simplified version of the ensuing complex procedural background was set forth in City of New Haven v. Chemical Waste Management of Indiana, L.L.C., 685 N.E.2d 97 (Ind. Ct. App. 1997), trans. dismissed:
764 and CP-642 requesting the trial court to enter an agreed judgment in each
case. The trial court entered an agreed judgment in each case dismissing all
claims with prejudice. The City was not a party to the agreed judgment.
Id. at 99-100.
As a result of the agreement reached between those parties, the BZA and the Zoning
Administrator dismissed their appeal of CP-642 and CP-764. The City, now the sole
appellant, brings this consolidated appeal of the trial court's rulings in CP-642 and CP-764
while CWMI also brings several issues on appeal as cross-appellant.
ordinance. Hannon v. Metropolitan Development Comm'n of Marion County, 685 N.E.2d
1075, 1078 (Ind. Ct. App. 1997). The BZA failed to carry this initial burden of proof. We
must agree with the trial court's finding that at the April 24, 1995 BZA hearing session,
CWMI was improperly required to go forward first and bear the burden of proving that it was
not in violation of the zoning ordinance. Instead, the burden of proof and the burden of
going forward should have been on the Zoning Administrator to establish that he did not act
arbitrarily, capriciously, or illegally. See Saurer v. Board of Zoning Appeals, 629 N.E.2d 893
(Ind. Ct. App. 1994). We find no error.
is free to raise the issue of mootness in its present appeal because that issue was not
previously resolved or addressed by this court. Furthermore, CWMI contends that the law
of the case doctrine does not apply in this case because the doctrine only precludes
subsequent litigation on the precise legal issue previously determined. We disagree with
Although we did not specifically address the issue of the mootness of the City's claim in City of New Haven, we nevertheless ruled that the City had the right to appeal a prior judgment "to the extent that it is adverse to those interests which made intervention possible in the first place." Id. Thus, the law of the case doctrine does apply because we implicitly ruled on the mootness issue in a prior decision in this same case with substantially the same facts and we will not reopen what we have previously decided.
CWMI next contends that the City has no remedy available on remand because CWMI received its last shipment of waste at the facility in May 1998, the facility is effectively closed, and therefore CWMI can no longer violate or continue to violate the ACZO provisions. Specifically, CWMI argues that the City has no available remedy for an alleged violation under the ACZO, and therefore this appeal should be dismissed. We disagree.
First, in City of New Haven, we found that the City, as a remonstrator, had a right to petition for review by writ of certiorari pursuant to Ind. Code §§ 36-7-4-1000, et seq., which provides for remedies and enforcement of BZA decisions by aggrieved parties. City of New Haven, 685 N.E.2d at 102. In particular, we held that pursuant to Ind. Code § 36-7-4- 1005(b) the City satisfied the definition of an adverse party as "any property owner whose
interests are opposed to the petitioner. . . ." Id. at 103. Thus, we have already determined
in this case that the City is entitled to petition for review of the BZA decisions as an adverse
party. Second, ACZO § 3-13-4-4 does provide the City as "any property owner" with the
right to obtain an injunction against CWMI. This ordinance states that:
any property owner who may be especially damaged by any such violation of this Ordinance may initiate an action for injunction . . . to restrain any person or governmental unit from violating or continuing to violate any provision of this Ordinance and to cause such violation to be prevented or abated. (R. 3080).
Finally, CWMI contends that the City is not entitled to a negative injunction under ACZO § 3-13-4-3 because the words "restrain," "prevent," and "abate" all refer to actions of present or future violations that cannot occur because the facility is closed. However, the City seeks to enforce the underlying covenants prohibiting visibility of the landfill from any existing residence as well as the ACZO provisions limiting the existing landfill height and requirement of permits and Special Exceptions for landfill construction. Therefore, the City can initiate an injunction action against CWMI for alleged continued violations of the covenants and ACZO provisions. The City's appeal is not moot.
hearing CWMI's appeal of the Zoning Administrator's orders. In response, the City asserts
that due process does not require that the BZA provide CWMI a de novo hearing.
Specifically, the City argues that due process of law was not contravened where the BZA
applied the standard of the ACZO Rule of Procedure 4.01, which provides that an appeal to
the BZA of the Zoning Administrator's decision be "on the basis of such decision being
arbitrary, capricious, illegal or contrary to state law or the provisions of the Ordinance or the
Rules." (R. 1274). We agree.
Ind. Code § 36-7-4-918.1 authorizes BZA review of any order or decision made by a zoning administrator. Furthermore, Ind. Code § 36-7-4-919(d) provides: "Upon appeal, the board may reverse, affirm, or modify the order, requirement, decision, or determination appealed from. For this purpose, the board has all the powers of the official, officer, board, or body from which the appeal is taken." Thus, we affirm the trial court's finding that the BZA's decision to limit the exercise of its power by applying an arbitrary, capricious, or illegal standard rather than broadening its power by affording CWMI a de novo hearing with the BZA standing in the shoes of the Zoning Administrator was well within the BZA's discretion. We find no error in the trial court's failure to vacate the BZA decisions of CWMI's appeal for not applying a de novo review standard.
decisions on the ground that a single member of the BZA, George W. Pond (Pond), was
biased against CWMI as well as the bias of the entire BZA. The trial court denied CWMI's
motion for summary judgment and found that by necessarily knowing of the bias but failing
to timely raise the issue at three different hearings, CWMI waived its assertion that the BZA
was biased against it. Furthermore, the trial court was unable to determine whether as a
matter of law Pond's participation with the Allen County Dump Stoppers, Inc., an
organization actively and publicly opposed to CWMI's operations at the landfill, created a
reasonable basis for doubting his impartiality.
On February 23, 1993, the City filed a complaint against CWMI and the BZA in the Allen County Superior Court, alleging violations of the ACZO by CWMI. On September 8, 1994 CWMI filed a counterclaim against the BZA, joining the Zoning Administrator as a party defendant. On September 13, 1994 the Zoning Administrator filed a counterclaim against CWMI but the BZA continued to defend itself against CWMI's claim rather than affirmatively filing a complaint, cross-complaint, or counterclaim against CWMI. CWMI now claims that the BZA was biased because it was in litigation against CWMI at the same time it was ruling on CWMI's appeal of the Zoning Administrator's allegations of ACZO violations. However, as the trial court pointed out, CWMI failed to raise the issue of bias with the BZA due to its litigation with CWMI at any of the BZA hearings on April 12 and 24 and May 10, 1995. Thus, the trial court ruled that CWMI waived its claim that the BZA was biased against it at the April 12 and 24 and May 10, 1995 hearings because CWMI "cannot initiate a legal claim in a lawsuit against the BZA (September 8, 1994) then later
pursue zoning appeals and requests before the BZA (April 12 and 24 and May 10, 1995) and
then later (on October 11, 1995) first raise an allegation of bias by the BZA yet having at all
times necessarily known of these circumstances of which it first complains in late 1995." (R.
CWMI's second claim of bias is that the trial court erred in failing to invalidate all of the BZA proceedings because a biased BZA member participated in any of them. In 1995, Pond was a board member of the Allen County BZA and also a member of the Allen County Dump Stoppers, Inc. Prior to the initial BZA hearing on April 12, 1995, CWMI registered three written objections to Pond's participation in the BZA hearing. However, Pond still participated as a member of the BZA in the April 12 hearing and then recused himself prior to the next BZA hearing on April 24, 1995. CWMI now argues that the trial court should have concluded that Pond was biased against it, thereby tainting all BZA proceedings, and therefore the court should have invalidated all of the BZA proceedings relating to CWMI. The trial court was "unable to determine whether as a matter of law Pond had a conflict of interest and whether as a matter of law a reasonably objective person would have a reasonable basis for doubting [Pond's] impartiality and therefore CWMI's motion for summary judgment is denied as to this issue." (R. 3835).
Due process in administrative hearings requires that all hearings be orderly, judicious, fundamentally fair, and conducted before an impartial body. McBride v. Board of Zoning Appeals of Evansville-Vanderburgh Area Plan Commission, 579 N.E.2d 1312, 1315 (Ind. Ct. App. 1991). This requirement means that agency members' decisions may not be swayed by
preconceived biases and prejudices. Ripley County Board of Zoning Appeals v. Rumpke of
Indiana, Inc., 663 N.E.2d 198, 209 (Ind. Ct. App. 1996), reh'g. denied, trans. denied. When
a biased board member participates in a decision, the decision will be vacated. Id.
Nevertheless, because a zoning board is a body usually composed of persons without legal
training, courts are reluctant to impose strict technical requirements upon their procedure.
McBride, 579 N.E.2d at 1315. Furthermore, in the absence of a demonstration of actual bias,
we will not interfere with the administrative process. Ripley Cty., 663 N.E.2d at 209.
In the case at hand, we are reviewing decisions by the trial court that CWMI waived its assertion of institutional bias by failing to timely raise the issue and the existence of genuine issues of material fact as to Pond's impartiality. The issue on appeal is whether denial of summary judgment against CWMI on the issue of bias was in error.
The purpose of summary judgment is to terminate litigation for which there can be no factual dispute and which can be determined as a matter of law. Brown v. Lowell Mining Co., Inc., 636 N.E.2d 154, 155 (Ind. Ct. App. 1994). When reviewing the grant or denial of a motion for summary judgment our standard of review is the same as that used by the trial court: whether there is a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. Webb v. Jarvis, 575 N.E.2d 992, 994 (Ind. 1991). On review, we may not search the entire record to support the judgment, but may only consider that evidence which has been specifically designated to the trial court. Irvine v. Rare Feline Breeding Center, Inc., 685 N.E.2d 120, 123 (Ind. Ct. App. 1997), trans. denied. The party appealing the trial court's grant or denial of summary judgment has the burden of
persuading this court that the trial court's decision was erroneous. Id. A summary judgment
determination shall be made from any theory or basis found in the evidentiary matter
designated to the trial court. Ind.Trial Rule 56(C). Thus, our standard of review is limited
to determining whether the trial court's decision to deny summary judgment to CWMI is
erroneous, and we must affirm on any theory supported by the judgment.
In the case at hand, because of the existence of genuine issues of material fact before the court, the trial court was unable to find as a matter of law that either the entire BZA or Pond, as a member of the BZA, was biased against CWMI. Specifically, the court found that the record was silent as to what extent Pond was a member of the Dump Stoppers organization and whether his association with the Dump Stoppers affected the BZA proceedings. Additionally, the court found that CWMI waived its assertion of institutional bias because it necessarily knew of the circumstances of bias but continued litigation without raising the issue. Thus, on the basis of the lack of designated evidence and our deferential standard, we cannot say the trial court's denial of summary judgment against CWMI on the issue of bias was erroneous.
law in common with the main action because the City merely duplicated the BZA's and the
Zoning Administrator's complaint.
Pursuant to Ind.Trial Rule 24(B)(2), an applicant may be permitted to intervene in an action when the applicant's claim or defense have a question of law or fact in common with the proceeding and intervention will not prejudice or unduly delay the adjudication of the rights of the original parties. On appeal, the trial court's determination on a motion to intervene is only reviewable for an abuse of discretion. Heritage House of Salem, Inc. v. Bailey, 652 N.E.2d 69, 73 (Ind. Ct. App. 1995). In reviewing the trial court's exercise of discretion, the facts alleged in the motion must be taken as true. Id. To constitute an abuse of discretion, the trial court's decision must be clearly against the logic and effect of the facts and circumstances before the court or reasonable and probable inferences to be drawn therefrom. Developmental Disabilities Residential Facilities Council v. Metropolitan Dev. Comm'n of Marion County, Ind., 455 N.E.2d 960, 965 (Ind. Ct. App. 1983). Further, it is well settled that where the effect of granting a motion to intervene would open up new areas of inquiry or raise unrelated issues, the motion should be denied. Heritage House, 652 N.E.2d at 74.
On June 26, 1995, the City filed a petition to intervene in the action of the Allen County BZA seeking injunctive relief to rectify zoning violations found by the BZA to exist in its affirmance of certain stop work orders issued by the Allen County Zoning Administrator. In support of its motion, the City asserted that it had a direct interest in the enforcement of local zoning against CWMI and it must be permitted to intervene to protect
its interests. On October 16, 1995, the trial court granted the City's motion to intervene,
finding that the City's claims have questions of law and fact in common with the BZA and
intervention will not unduly delay or prejudice the rights of the original parties. We must
agree with the trial court in permitting the City to intervene permissively in this case. We
find no abuse of discretion.
about the validity of the September 2 and 9, 1994 stop work orders that were already
determined to be invalid and unenforceable.
Pursuant to ACZO 3-13-3-3, a decision by the Zoning Administrator to issue a stop work order may be appealed to the BZA. "However, the decision of the Zoning Administrator to issue a stay order shall remain in effect during the pendency of the appeal, and thereafter unless modified or revoked by the Board. . . . A violation of such an order issued by the Zoning Administrator . . . shall be considered a violation of this ordinance." Thus, CWMI was required to obey the stop work order until there was a judicial determination of its legality on appeal. The trial court properly found that CWMI was in violation of the stop work order based upon the condition of the ultimate validity of the stop work order on appeal. We find no error.
judicial injunctive enforcement of the February 6, 1995 stop work order. However, the trial
court judge rejected CWMI's res judicata and collateral estoppel arguments, finding that in
CP-308, the judge "denied an application for a temporary restraining order against CWMI
for no stated reason other than to maintain the status quo that existed prior to the filing of the
application which decision was not a decision on the merits of the case." (R. 3859). Further,
the court concluded:
that the issues of whether non-compliance with an Allen County Zoning Administrator stop work order constitutes a violation of the Allen County Zoning ordinance . . . have not been fully litigated on the merits in [CP-308] and therefore [the BZA, Zoning Administrator and the City] can raise and argue these issues in this case because the doctrines of res judicata and collateral estoppel do not bar them from doing so.
The law of res judicata is well-established in Indiana. It operates to "preclude litigation regarding matters which have already been litigated. . . . [A] judgment on the merits is an absolute bar to a subsequent action between the same parties on the same claim." Mutcham v. Consolidated Coal Co., 666 N.E.2d 461, 464 (Ind. Ct. App. 1996), reh'g. denied, trans. denied. The denial of a preliminary injunction is in the nature of an interlocutory order. Ind.Appellate Rule 4(B)(3); see Hollingsworth v. Key Benefit Adm'rs, Inc., 658 N.E.2d 653, 655 (Ind. Ct. App. 1995). Further, the very nature of interlocutory orders is that the case is not fully developed before the case proceeds to a final hearing on the merits. Id. In this case, the trial court properly found that res judicata or collateral estoppel did not apply because the trial on the merits in CP-308 had not yet been held when the Superior
Court judge denied the TRO and ordered "all pending requests for injunctive relief
consolidated with the trial on the merits in this cause of action." (R. 3859).
this definition. ACZO § 3-2-2-2 defines "structure" as:
Anything constructed or erected with a fixed location on the ground, or
attached to something having a fixed location on the ground. Among other
things, structures include buildings, mobile homes, walls, fences, billboards
and poster panels, and pools.
(R. 3850). CWMI argues that as a matter of law, ACZO § 3-8-1-1 does not apply to its landfill operations because it is not a building or a structure. Specifically, CWMI asserts that ACZO § 3-2-2-2 defines a sanitary landfill as "a method of disposing of refuse on land . . . .," and thus the landfill is not constructed with a fixed location on the ground, rather it is the ground.
Summary judgment is appropriate when the designated evidence demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Ind.Trial Rule 56(C). The purpose of summary judgment is to determine litigation about which there can be no factual dispute and which can be determined as a matter of law. Howell v. Indiana-American Water Co., Inc., 668 N.E.2d 1272, 1274 (Ind. Ct. App. 1996), trans. denied. The trial court's determination of summary judgment is
clothed with a presumption of validity and the losing party bears the burden of proving that
the trial court erred in its determination of summary judgment. Id. When reviewing a
motion for summary judgment, we stand in the shoes of the trial court, applying the same
standard utilized by the trial court, and we resolve any doubt as to a fact, or an inference to
be drawn therefrom, in favor of the party opposing summary judgment. Id. Summary
judgment is inappropriate if we must weigh conflicting evidence to reach a decision, or if
there are conflicting inferences which may be drawn from undisputed facts. National City
Bank, Indiana v. Shortridge, 689 N.E.2d 1248, 1250 (Ind. Ct. App. 1997).
In this case, the City argues that the trial court did not err in denying CWMI's motion for summary judgment since, as a matter of law, the landfill cells are "structures." In the designation of materials upon which it relied in opposition to CWMI's motion for summary judgment, the City cited evidence supporting the conclusion that the landfill cells were structures. In particular, the City designated: CWMI plans, diagrams, and brochures showing landfill cells as structures, CWMI's testimony at a BZA hearing describing the landfill cells as structures, and CWMI's description of the cells as elaborately engineered and constructed. On the other hand, CWMI argues that its attorney consistently maintained before the BZA that its landfill was not a "structure" as defined under the ACZO, even submitting a brief to the BZA urging dismissal of the height stop work order because the landfill was not a structure. Further, CWMI argues that CWMI's reference to aspects of the landfill as "constructed" is not an admission that any part of the landfill is a "structure." Thus, the trial court properly denied CWMI's summary judgment because there were genuine
issues of material fact and conflicting evidence. We agree with the trial court that summary
judgment was inappropriate.
the Zoning Administrator the power to enforce the 1974 covenants. On February 6, 1995,
the Zoning Administrator issued against CWMI a stop work order alleging several violations
of the 1974 covenants. On May 10, 1995 the BZA affirmed and upheld certain of the alleged
violations of the 1974 covenants.
On February 6, 1996, the trial court denied CWMI's motion for summary judgment on the February 6, 1995 stop work order and the BZA's affirmance of notices of violation regarding the 1974 restrictive covenants, finding that there existed no genuine issue of material fact regarding the validity of the 1974 covenants running with the land. In particular, the court found that CWMI's operations on the original 151 acre site remained subject to the site-specific 1974 covenants as well as the ACZO in effect on July 19, 1974 when Brooks submitted his permit application to the BZA. Further, the court found that CWMI was precluded from challenging the validity of the 1974 covenants because it failed to timely pursue a certiorari action within thirty days of September 18, 1974, and that CWMI had previously acknowledged in court proceedings the validity of the 1974 covenants and the right of the Zoning Administrator to enforce them.
We must agree with the trial court in denying CWMI's motion for summary judgment regarding the stop work orders and notices of violation in connection with the 1974 covenants. The covenants were not ultra vires or unenforceable as a matter of law. In fact, there is substantial evidence in the record to support the finding that CWMI's 151 acre site remained under the 1974 covenants voluntarily entered into by Brooks. As we stated above, when reviewing a motion for summary judgment, we stand in the shoes of the trial court,
applying the same standard utilized by the trial court, and we will resolve any conflicting
inferences from undisputed facts in favor of the non-moving party. In this case, the
undisputed facts reveal a conflicting inference of whether Brooks voluntarily agreed to the
restrictive covenants. However, there is substantial evidence in the record to support the
conclusion that Brooks agreed to the covenants and that they ran with the land to remain in
effect upon CWMI.
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