COA Affirms BZA’s Denial Of Fire Department’s Residential Property Use

Katie Stancombe for www.theindianalawyer.com

A Southern Indiana volunteer fire department faced the heat after the Indiana Court of Appeals sided with a local board of zoning appeals to deny the department’s application to use a residential home as an emergency sub-station. In June 2017, the Utica Township Fire Department bought property in Georgetown to be used as an emergency medical services sub-station. The property, which included a home with a two-stall garage, was located in a residential zoned area.

Shortly after it began using the property, a complaint was filed that the fire department was in violation of the Floyd County’s zoning ordinance. Up until that point, it had not sought permission to operate the sub-station either before or after purchasing the property.

When the fire department subsequently filed a conditional use application with the Floyd County Board of Zoning Appeals, its request was denied for failing meet one of five requirements. Specifically, that the “[s]trict application of the terms of the Floyd County Zoning Ordinance will not result in an unnecessary hardship in the use of the property because: it is a home & can be occupied & utilized as one in the future[.]”

“In short, the property the Fire Department purchased is a dwelling, and it can be used as such going forward. That strikes us as an eminently reasonable rationale for denying the conditional use application, and the Fire Department does not argue otherwise,” Chief Judge Nancy Vaidik wrote for the court. “Instead, it rests on its assertion that the BZA’s findings just track the language of the Floyd County ordinance. Because that assertion is wrong, the Fire Department’s appeal necessarily fails.”

Additionally, the appellate court reprimanded the fire department for presenting “a word-for-word reproduction” of large portions of the appellate court’s analysis in Riverside Meadows I, LLC v. City of Jeffersonville, Indiana Board of Zoning Appeals, 72 N.E.3d 534 (Ind. Ct. App. 2017).

“Moreover, the argument does not include any citations to the record on appeal. This is a violation of Appellate Rule 46(A)(8)(a),” the chief judge continued. “As our Supreme Court has observed, ‘A brief is not to be a document thrown together without either organized thought or intelligent editing on the part of the brief-writer. Inadequate briefing is not, as any thoughtful lawyer knows, helpful to either a lawyer’s client or to the Court.’”