Essroc Cement Corp. v. Clark County Board of Zoning Appeals and Sierra Club

FILED

Apr 18 2019, 10:20 am

CLERK

Indiana Supreme Court

Court of Appeals

and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

C. Gregory Fifer CLARK COUNTY BOARD OF

F. Brad Benson ZONING APPEALS

Applegate Fifer Pulliam LLC Douglas B. Bates

Jeffersonville, Indiana Chelsea R. Stanley

Stites & Harbison PLLC

Jeffersonville, Indiana

Zachary M. VanVactor

Stites & Harbison PLLC

Louisville, Kentucky

ATTORNEYS FOR APPELLEE

SIERRA CLUB

Khushi K. Desai

Earthjustice

Washington, D.C.

Jeffrey B Hyman

Conservation Law Center

Bloomington, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Court of Appeals of Indiana | Opinion 10A04-1709-PL-2199 | April 18, 2019 Page 1 of 38

Essroc Cement Corp, April 18, 2019

Appellant-Petitioner, Court of Appeals Case No.

10A04-1709-PL-2199

v. Appeal from the Clark Circuit

Court

Clark County Board of Zoning The Honorable Susan L. Orth,

Appeals and Sierra Club, Special Judge

Appellees-Respondents Trial Court Cause No.

10C02-1609-PL-108

May, Judge.

[1] Essroc Cement Corporation (“Essroc”) operates in Clark County, Indiana, on

land zoned M2 for Heavy Industrial Use. To date, Essroc has always used coal

to power its concrete production, but in the past decade Essroc began

considering firing its concrete kiln with liquid waste derived fuels (“LWDF”).

In December 2014, Essroc requested an informal determination from the Clark

County Plan Commission (“the Plan Commission”) about the permissibility of

burning LWDF on land zoned M2. In late January 2015, the executive director

of the Plan Commission gave Essroc a private letter indicating the burning of

LWDF was permitted in an area zoned M2.

[2] However, seventeen months later, Plan Commission staff issued a second

private letter to Essroc that revoked the first private letter and indicated Essroc

would need to obtain a variance or re-zone its property to an M3 district if it

wished to burn LWDF. Essroc appealed that second private letter to the Clark

County Board of Zoning Appeals (“the CCBZA”). The CCBZA held a public

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hearing and determined Essroc’s proposed use of LWDF is prohibited in an

area zoned M2. As a result, to burn LWDF, Essroc would need either to re-

zone to M3, which is a Hazardous Waste Disposal District, or to petition for a

use variance.

[3] Essroc petitioned the trial court to review that administrative determination.

The trial court affirmed the CCBZA’s decision. Essroc filed a motion to correct

error, which the trial court granted in part and denied in part. Essroc now

appeals to this court, raising numerous procedural and substantive issues 1 that

we reorganize and restate as:

I. Does the Clark County Zoning Ordinance (“CCZO”) permit

the burning of LWDF on land zoned M2 or only on land zoned

M3?

II. Can Essroc nevertheless burn LWDF on its land zoned M2

because such burning is permitted as an “accessory use”?

III. Does Plan Commission staff have the authority to revoke a

prior staff-issued, non-public, informal zoning determination

letter by sending another staff-issued letter?

1

In its Brief, Essroc also asserted the trial court committed reversible error by failing to hold a hearing, as

requested by the parties, prior to ruling on the competing motions for summary judgment. At oral argument,

counsel for Essroc withdrew that issue from our consideration by conceding that any error that occurred

thereby was harmless as the trial court held a full hearing prior to ruling on Essroc’s motion to correct error.

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IV. If Plan Commission staff could revoke the initial staff

determination, was Essroc entitled to notice and a public hearing

before that revocation?

V. Is the CCBZA equitably estopped from requiring Essroc to

rezone because Essroc had spent money in reliance on the Plan

Commission’s first determination letter?

VI. Should Finding 18, Finding 19, and Conclusion 7 be struck

from the trial court’s final order because the issue of whether the

CCZO is preempted by federal law was not before the trial court?

We affirm.

Facts and Procedural History 2

[4] For over 100 years, Essroc has produced cement at its facility in Clark County,

Indiana. To date, Essroc has fired its cement kiln using coal. However, Essroc

wishes to begin firing its kiln with LWDF, which are an amalgam made of such

liquids as household cleaning products, oils, nail polish, nail polish remover,

perfume, paint, and ink. To burn LWDF, Essroc needs a permit from the

Indiana Department of Environmental Management (“IDEM”), and to obtain

that IDEM permit, Essroc needs a letter confirming it has CCBZA approval for

converting from coal to LWDF.

2

We held oral argument on this case at the Indiana Statehouse on June 20, 2018. We thank counsel for their

insightful arguments, which assisted our resolution of this proceeding.

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[5] On December 19, 2014, Essroc’s legal counsel sent a letter to the Plan

Commission asking “for certification of zoning compliance from the Clark

County Plan Commission and/or Plan Director”:

This firm represents Essroc. Essroc’s production facilities at

Speed are located on approximately 3500 acres in the

unincorporated territory of Clark County with the manufacturing

and production of the facility within the M2 (Heavy Industrial)

zoning district as shown on the Clark County Zone Map.

To date Essroc has fueled its production facilities primarily with

coal. It proposes to begin supplementing its coal usage with

alternative fuels. These materials would include solvents, paints,

etc. They would be flammable (as required to create heat for the

kiln), and would be accordingly designated as “hazardous” due

to such flammability. The alternative fuel materials would be

delivered by generators to Essroc’s Logansport, Indiana, plant for

blending. This plant already has a permit to burn alternative

fuels, and therefore presently has all of the equipment in place as

required to properly handle these materials.

After blending at the Logansport plant, the materials would be

transported by truck to the Speed plant. Essroc already has one

(1) tank in place that it has used for waste oils in the past. The

only capital addition Essroc currently proposes to make would be

the addition of a second tank to enable replacement of up to fifty

percent (50%) of the coal it now uses. However, Essroc presently

anticipates that it will likely achieve replacement of coal in the

25-30% range, but plans to seek IDEM permitting to allow up to

the 50% replacement level. The addition of this single tank is

obviously a very small addition to Essroc’s existing plant. Once

the materials arrive at the Speed plant, they will be pumped into

the existing and new tanks, and then pumped to the kiln utilizing

existing equipment to use as a process fuel in manufacturing

clinker, a work-in-process that ultimately becomes cement.

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Enclosed are the materials that Essroc has provided to adjoining

property owners as part of the environmental permitting process.

Please not [sic] the graphic on page 4 illustrating the cement

manufacturing process entitled “Cleaner Alternative Fuels Can

Replace Coal”. [sic] Again, the only change in Essroc’s current

production activities relates to the Alternative Fuel graphic on

the right hand side of this page, as Essroc plans to replace a

portion of the coal used in its kiln with such alternative fuels.

Essroc needs to demonstrate to IDEM that, if permitted, its plans

will comply with all local zoning regulations. Permitted uses (g)

(“concrete mixing”, etc.), and (h) (“sand, gravel or aggregate

wash production or processing”) would appear to expressly

permit the continued operation of Essroc’s cement production

facilities, regardless of whether alternative fuels are utilized as a

supplement to coal. Essroc does not in any manner intend to

construct or operate any facilities constituting a “landfill, waste

transfer facilities, recycling facilities and related operations, or

storage processing and recycling of hazardous materials” that

would most likely require rezoning to M3 (Hazardous Waste

Disposal District).

Based on the foregoing, Essroc would request the issuance of an

assurance letter by the Plan Directoor [sic] and/or on behalf of

the Plan Commission (in the manner you deem appropriate),

certifying that (i) Essroc’s current cement manufacturing

operations are permitted as a matter of right, (ii) such operations

will continue to be permitted as a matter of right subsequent to

Essroc’s conversion to alternative fuels usage; provided however,

that Essroc complies with all applicable laws, regulations, and

permits with respect to the handling and usage of such alternative

fuels, and (iii) Essroc’s use of such alternative fuels will not

necessitate a change of zoning classification to M3 (Hazardous

Waste Disposal District) for any portion of its facilities.

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Should the Plan Commission or you require any additional

information in order to be able to issue the requested assurance

letter, please advise and we will attempt to accommodate your

request promptly. Essroc representatives and I would also be

glad to meet with the Plan Director, yourself, or other

appropriate County officials as required to satisfy any remaining

concerns regarding this request.

(App. Vol. II at 53-4.)

[6] Essroc and Plan Commission staff held informal meetings and, on January 26,

2015, the Executive Director of the Plan Commission sent a letter to Essroc that

stated:

The Office of Planning & Zoning for Clark County[,] Indiana

concludes after our meeting on January 22, 2015, that Essroc’s

current cement manufacturing operation is permitted as a matter

of right within the M2 (Heavy Industrial) district in which it is

located. Such operations will continue to be permitted as a

matter of right subsequent to Essroc’s conversion to RCRA-

regulated Liquid Waste Derived Fuels (kiln-ready fuel) usage at

this site location as described and detailed to the Office of

Planning, provided that Essroc complies with all applicable laws,

regulations, permits, and local ordinances with respect to the

handling, usage, and location of such alternative fuel. Essroc’s

use of such alternative fuels will not require a rezoning to M3

(Hazardous Waste Disposal District) for any portion of its

facilities or the grant of any use variance.

The new storage tank and shed over the existing tank farm will

require commercial building permits issued through the Office of

Planning & Zoning by the Building Commissioner after all

approvals or permits are received from other agencies, including

the Indiana Department of Natural Resources for the approval of

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the location of the items in the floodway . . . and the Indiana

Department of Environmental Management (IDEM) for the

modifications to the Essroc facility for the construction of, and

operations for, the use of these alternative fuels as specified in the

RCRA and Clean Air Act permit applications to be prepared and

submitted by Essroc.

(Id. at 61.)

[7] In February 2016, IDEM held a meeting on Essroc’s permit application for

burning of LWDF. (Id. at 46.) At the next Plan Commission meeting, a group

of Clark County citizens (“Concerned Citizens”) 3 raised concerns about Essroc

burning LWDF:

The Essroc Cement Corporation (Essroc) has applied for a

modification of its Part 70 Clean Air Act permit that would allow

it to burn liquid hazardous wastes that require comprehensive

regulation under the Resource Conservation and Recovery Act

(RCRA) at its Sellersburg, Indiana cement plant. RCRA is a

federal law governing the generation, storage, transport and

disposal of regulated hazardous wastes, which are among the

most highly toxic substances produced in industrial

manufacturing and business use. The Essroc plant is located in

close proximity to homes, churches, schools, and daycare

centers, and its permit application documents reveal that it

already emits vast quantities of toxic pollution into the

neighboring community – even without burning hazardous

waste. Allowing the plant to burn hazardous waste would

increase the toxic burden on families in this community, and

would also create the risk of catastrophic events if the hazardous

3

Concerned Citizens includes Carl A. Dreyer, Teri Corya, Chuck Corya, Vicki Whittinghill, and Karl

Truman. (See App. Vol. II at 101.)

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waste that Essroc seeks to store on site – which, by Essroc’s

admission is volatile and ignitable – should spill, leak, catch fire,

or explode. Hazardous waste is dangerous to handle, transport,

store, and incinerate because it consists of highly toxic chemicals

in complex harmful mixtures.

(Id. at 66) (first paragraph of a ten-page submission to CCBZA).

[8] On April 4, 2016, Concerned Citizens filed a petition with the CCBZA for

administrative appeal of the letter of January 26, 2015. (Id. at 81-3.) The

CCBZA dismissed that appeal because staff decisions must be appealed within

thirty days, such that the letter of January 26, 2015, was “not an appealable

administrative decision.” (Id. at 122.) On June 17, 2016, Concerned Citizens

filed a petition for judicial review by the Clark Circuit Court. (Id. at 101-12.)

Essroc moved to intervene in that court case and then, on August 10, 2016, the

case was dismissed with prejudice by joint agreement of Concerned Citizens,

Essroc, and the CCBZA.

[9] However, in the meantime, on June 27, 2016, the new Acting Executive

Director of the CCBZA, Stacia Franklin, and the President of the Plan

Commission, Jack Coffman, sent a letter to Essroc that provided, in necessary

part:

In correspondence dated December 19, 2014, counsel for

Essroc requested that the Clark County Plan Commission or the

Plan Director issue a letter of assurance related to Essroc’s

current manufacturing operations and proposed future

operations. In that letter Essroc stated:

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“Essroc does not in any manner intend to construct or

operate any facilities constituting a landfill, waste transfer

facilities, recycling facilities and related operations or

storage processing and recycling of hazardous materials’

that would most likely require rezoning to M3 (hazardous

waste disposal) district.”

The staff of the office of Planning and Zoning for Clark

County relied on the representations of Essroc’s letter and issued

the requested assurances in a letter dated January 26, 2015

subject to the further requirements stated in the assurance letter.

Clark County has just recently discovered that on

February 26, 2015, Essroc submitted to IDEM, an initial part B

permit application (“RCRA Permit”) (VFC#80012744) for the

Esroc [sic] Speed, Indiana facility to request addition of a LWDF

process to the Speed facility. On the “Type of Application”

section, Essroc designated “Hazardous Waste Storage Facility;

Hazardous Waste Treatment Facility”. [sic] Additionally, in

February of 2015, Essroc applied for a significant modification of

its Part 70 Operation Permit (“Title V Permit”) in order to begin

utilizing LWDF. IDEM’s preliminary findings conclude that

Essroc will construct a RCRA LWDF waste receiving and

storage facility at the Speed, Indiana facility.

Therefore, the Office of Planning and Zoning of Clark

County, Indiana still concludes that Essroc’s current cement

manufacturing operation is permitted as a matter of right but

based upon these newly discovered facts, in order to add the uses

which are the subject of IDEM approval, Essroc must file for

rezoning to an M-3 zone and/or file for a variance prior to any

such use at its Speed facility.

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(Id. at 126-7.) Essroc filed a petition with the CCBZA for administrative appeal

of that Determination. The CCBZA held a hearing and then affirmed the

Determination in an order that provided, in necessary part:

2. This action was brought by Essroc pursuant to I.C.

36-7-4-918.1 (1) claiming to be aggrieved by the Determination

relating to its intended burning of hazardous materials, and the

requirement that Essroc file a petition to rezone its real estate

from its present M-2 zoning to an M-3 zoning designation or in

the alternative to file a Petition for a use variance of its real estate

to burn hazardous wastes, to store hazardous wastes and treat

hazardous wastes. The contents of the Determination are

incorporated herein by reference as if full [sic] set out herein.

3. This action is necessary and is also brought

pursuant to Article XXII of the Clark County Zoning Ordinance

(the “Ordinance”)[.]

4. The real estate which is the subject of this appeal is

that of Essroc at 301 U.S. 31 Sellersburg, Indiana (the “Real

Estate”), is currently zoned “M2 (Heavy Industrial)” and has

been so zoned at all pertinent times.

5. On January 26, 2015, without a public hearing

and/or public meeting, but apparently in a meeting with Essroc

on January 22, 2015, the then Executive Director of the Clark

County Plan Commission, Michael Tackett issued a

determination that Essroc Cement was able to, as a matter of

right, burn regulated liquid waste-derived fuel at its location

without a zoning change and/or a zoning variance from its M2

zoning district (the “Interpretation”).

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6. The “M2 (Heavy Industrial)” in the Ordinance does

not allow the destruction or recycling [or] the burning of

hazardous waste.

7. The Intentions of Article XVI: M2 Heavy Industrial

in the Ordinance state:

Heavy industrial district is intended for those heavy

industrial uses that are typically characterized by

objectionable factors which are exceedingly difficult to

eliminate. These industries are therefore buffered by

efficient [sic] areas that minimize any adverse effects and

wherever practical the district is removed as far as possible

from residential areas buffered by intervening industrial

districts.

8. Pursuant to the Ordinance the only zoning district

in Clark County, Indiana allowing the burning of hazardous

waste is an “M3 Hazardous Waste Disposal District” in Clark

County, Indiana, and the same is described in Article XVII of the

Ordinance.

9. The Intentions of Article XVII: M3 Hazardous

Waste Disposal District in the Ordinance state:

This district is restricted to facilities for the disposal,

destruction, or recycling of toxic chemicals, radioactive

wastes, heavy metals, asbestos or other forms of hazardous

waste whether through incineration, land filling, or other

mechanical, chemical, or technological means.

10. Under “Permitted Uses” in Article XVII (M3) the

Ordinance further provides in pertinent part: “No building,

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structure or premises shall be used, arranged or designed to be

use[d] except for one or more of the following uses:

(e) Storage processing and recycling of hazardous

materials.”

11. Additionally under the Ordinance the M3 district

requires special setback requirements: “No M3 use shall be

located within one mile of any business, residence, church,

school, health care facility, or child care facility as measured

from the point of admission discharge or regulate[d] activity to

the nearest property line.”

12. In a letter to David Nachand dated December 19,

2014, Essroc’s counsel (the “Essroc Letter”) acknowledges the

alternative fuels (“solvents, paints, etc . . .”) are “hazardous” and

further indicates these hazardous materials would be

“transported by truck” to Essroc’s Speed, Indiana facility from its

Logansport facility then stored at the Speed, Indiana facility until

pumped for processing as fuel.

13. Additionally in the Essroc Letter to David

Nachand, Essroc’s counsel represented, it “does not in any

manner intend to construct or operate facilities constituting a

landfill, waste transfer facilities, recycling facilities and related

operations or storage processing and recycling of hazardous

materials that would most likely require rezoning to M# [sic]

(hazardous waste disposal) District.”

14. As background evidence reveals, in 1993 the Clark

County Commissioners responded/reacted to the very same

issue after Essroc had applied for a similar permit in 1992 to burn

hazardous waste at its Speed, Indiana facility by the passage of

the M3 zoning designation.

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15. In principle Essroc’s present intended use is no

different than its 1992 request to burn hazardous fuels and since

that time the Clark County Commissioners enacted legislation

governing hazardous materials in the County and created the M3

district in the Ordinance.

16. The Interpretation by the then Executive Director’s

[sic] was based upon the representations made in the Essroc

Letter by Essroc’s counsel.

17. That the Interpretation of the then Executive

Director of the Plan Commission was the result of a private

meeting (not a public meeting or hearing) and without notice to

neighboring property owners as required by notice requirements

of the Ordinance pertaining to Essroc’s requested burning of

hazardous materials in violation of the Ordinance.

18. The Interpretation by the then Executive Director

was improper [and] incorrect[,] as the intended use by Essroc,

according to its own filing with the Indiana Department of

Environmental Management (“IDEM”) for a RCRA Permit

(VFC#80012744) its new intended use [sic] stated it as a

“Hazardous Waste Storage Facility; Hazardous Waste

Treatment Facility.”

19. Essroc in February of 2015 also applied to modify

(significantly) it[s] Part 70 Operation Permit (“Title V Permit”) to

begin utilizing LWDF. The preliminary findings of IDEM

conclude that Essroc will construct a RCRA LWDF waste

receiving and storage facility at it[s] Real Estate.

20. The proposed use by Essroc is a prohibited use in an

M2 zoning district in Clark County, Indiana.

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21. The Determination should be affirmed in all

respects requiring Essroc to file a Petition for Rezoning [of] the

Real Estate or a Petition for a Use [V]ariance for its intended

uses which are the subject of the IDEM approval.

22. If either Petition is filed by Essroc the Plan

Commission or the Board of Zoning Appeals shall give the

proper statutory considerations pursuant to I.C. 36-7-4-603 or 36-

7-4-918.4 respectively to the petition(s) filed.

23. This decision is a “Zoning Decision” as the same is

defined by I.C. 36-7-4-1016, and is subject to “Judicial Review”

pursuant to I.C. 36-7-4-1600 et seq.

(Id. at 185-8.)

[10] Essroc petitioned the trial court for review on September 14, 2016. The

CCBZA answered that petition on September 20, 2016. On December 13,

2016, the certified administrative record was filed. Sierra Club thereafter

petitioned the court to intervene as a respondent, and on February 3, 2017, the

trial court granted Sierra Club’s motion to intervene. On April 24, 2017, Essroc

moved for summary judgment. On June 21, 2017, CCBZA moved for

dismissal and for summary judgment against Essroc, and Sierra Club moved for

summary judgment against Essroc. On July 18, 2017, Essroc filed a summary

judgment reply brief and a motion for a summary judgment hearing.

[11] On July 24, 2017, the trial court affirmed the decision of the CCBZA in an

order containing findings and conclusions. (See App. Vol. IV at 94-8.) On

August 22, 2017, Essroc filed a motion to correct error. The trial court held a

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hearing, see supra n.1, and then, on September 7, 2017, affirmed its judgment in

favor of the CCBZA. (See id. at 129-30.) The order on rehearing also modified

one of the trial court’s findings, number 18, from its original judgment, which

we will explain in more detail when we reach Essroc’s final issue on appeal.

Discussion and Decision

[12] Essroc appeals following the trial court’s affirmation of the CCBZA’s decision.

When reviewing a zoning board’s decision, we are bound by the same standard

of review as the trial court. Flat Rock Wind, LLC v. Rush Cty. Area Bd. of Zoning

Appeals, 70 N.E.3d 848, 857 (Ind. Ct. App. 2017), trans. denied. The trial court

is not permitted to conduct a trial de novo, and instead neither that court nor this

one may reweigh the evidence or reassess the credibility of witnesses. Id. We

may grant relief from the zoning board’s decision

. . . 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;

(4) without observance of procedure required by law; or

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(5) unsupported by substantial evidence.

Ind. Code § 36-7-4-1614(d). “The burden of demonstrating the invalidity of a

zoning decision is on the party to the judicial review proceeding asserting

invalidity.” Ind. Code § 36-7-4-1614(a). Thus, Essroc has the burden on appeal

to demonstrate error by the CCBZA.

I. Does the CCZO permit the burning of LWDF on land zoned M2 or only on

land zoned M3?

[13] “Construction of a zoning ordinance is a question of law.” Flying J., Inc. v. City

of New Haven, Bd. of Zoning Appeals, 855 N.E.2d 1035, 1039 (Ind. Ct. App.

2006), reh’g denied, trans. denied. Regulations that impair the use of real property

are strictly construed because they “are in derogation of the common law.” Id.

We therefore will not extend zoning regulations by implication. Id.

[14] When we must construe a zoning ordinance, we apply the same rules of

construction that we use on statutes. Flat Rock Wind, 70 N.E.3d at 857.

Specific ordinances control over general ordinances, and ordinances that “relate

to the same general subject matter” should be construed together. Id.

[T]he express language of the ordinance controls our

interpretation and our goal is to determine, give effect to, and

implement the intent of the enacting body. When an ordinance

is subject to different interpretations, the interpretation chosen by

the administrative agency charged with the duty of enforcing the

ordinance is entitled to great weight, unless that interpretation is

inconsistent with the ordinance itself. If a court is faced with two

reasonable interpretations of an ordinance, one of which is

supplied by an administrative agency charged with enforcing the

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ordinance, the court should defer to the agency. Once a court

determines that an administrative agency’s interpretation is

reasonable, it should end its analysis and not address the

reasonableness of the other party’s interpretation. Terminating

the analysis reinforces the policies of acknowledging the expertise

of agencies empowered to interpret and enforce ordinances and

increasing public reliance on agency interpretations.

Hoosier Outdoor Advert. Corp. v. RBL Mgmt., Inc., 844 N.E.2d 157, 163 (Ind. Ct.

App. 2006) (internal references omitted), trans. denied.

[15] The CCBZA’s decision provided in relevant part:

6. The “M2 (Heavy Industrial)” in the Ordinance does

not allow the destruction or recycling [or] the burning of

hazardous waste.

*****

8. Pursuant to the Ordinance the only zoning district

in Clark County, Indiana allowing the burning of hazardous

waste is an “M3 Hazardous Waste Disposal District” in Clark

County, Indiana, and the same is described in Article XVII of the

Ordinance.

*****

18. The Interpretation by the then Executive Director

was improper [and] incorrect[,] as the intended use by Essroc,

according to its own filing with the Indiana Department of

Environmental Management (“IDEM”) for a RCRA Permit

(VFC#80012744) its new intended use [sic] stated it as a

“Hazardous Waste Storage Facility; Hazardous Waste

Treatment Facility.”

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19. Essroc in February of 2015 also applied to modify

(significantly) it[s] Part 70 Operation Permit (“Title V Permit”) to

begin utilizing LWDF. The preliminary findings of IDEM

conclude that Essroc will construct a RCRA LWDF waste

receiving and storage facility at it[s] Real Estate.

20. The proposed use by Essroc is a prohibited use in an

M2 zoning district in Clark County, Indiana.

21. The Determination should be affirmed in all

respects requiring Essroc to file a Petition for Rezoning [of] the

Real Estate or a Petition for a Use [V]ariance for its intended

uses which are the subject of the IDEM approval.

(App. Vol. II at 186, 188.)

[16] Essroc asserts “that its proposed use of alternative fuels is a permitted use as a

matter of right in the M2 district.” (Reply Br. at 21.) The CCZO defines a

“permitted use” as the “uses 4 which are allowed within a specific zoning

district.” (App. Vol. III at 20 (footnote added).) The CCZO explains the “M2

Heavy Industrial” district to have the following intention and permitted uses:

Intention of District – Heavy industrial district is intended for

those heavy industrial uses that are typically characterized by

objectionable factors which are exceedingly difficult to eliminate.

These industries are therefore buffered by efficient [sic] areas that

minimize any adverse effects and wherever practical this district

4

A “use” is defined as the “purpose or activity for which the land or building thereon is designed, arranged

or intended, or for which it is occupied or maintained.” (App. Vol. III at 23.)

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is removed as far as possible from residential areas buffered by

intervening minor industrial districts.

Permitted Uses – No building[,] structure[,] or premises shall be

used, arranged[,] or designed to be used except as one or more of

the following uses:

(a) Any use permitted in the M1 district (with the exception of

Day Care Centers and Churches); 5

(b) Creosote manufacturing and treatment of petroleum products;

5

Uses permitted in the M1 district include:

(a) Any permitted in the B2 or B3 districts (no residential uses); (b) Engineering or research

laboratories, vocational or industrial training facilities, data processing or analysis; (c) Light

manufacturing including processing, refining, fabricating, assembly cleaning, testing, or

repairing of goods, materials or products; (d) Enclosed wholesaling and warehousing

packaging, storage or distribution facilities; (e) General offices associated with an industrial

use including service facilities for employees or 1[sic] guests provided that any service

facility shall be entirely enclosed within a building; (f) Utility installations and facilities; (g)

Accessory uses which are incidental or commonly associated with the operation or

permitted use including recreational areas for employees, lodging facilities for owners,

guards, or care takers; (h) Bakeries, secondary food processing, milk processing,

manufacture and bottling of dairy products and beverages; (i) Machine, welding, tool and

die shops and electroplating operations; (j) Manufacture of cloth, jewelry and leather

products; (k) Biological, medical and cosmetic manufacturing; (l) Manufacture and

assembly of optical goods, musical and recording instruments, office machinery, electrical

and mechanical; (m) Manufacture and assembly of marine, office, household appliances,

furniture, communication and automobile equipment, air conditioning, heating, and

refrigeration equipment; (n) Can and container manufacture, processing and milling of

forest products; (o) Dyeing and cleaning works and services such as linen suppliers, freight

movers and communication and canteen operations; (p) Trucking and railroad terminals;

(q) Upholstering and leather goods manufacture; (r) Cannery, bottling, processing, and

packaging of food and beverages, granaries, grain processing, meat processing and starch

manufacture; (s) Vehicle impound lots with no more than one (1) vehicle per 30 square feet

of outdoor vehicle storage space (excluding stacking of vehicles) located entirely on

concrete or adphalt [sic], fenced on all sides, and with no license plate expired more than

thirty (30) days. This use shall not include parking lots[;] (t) Other uses comparable and

compatible to those set forth in in this Article.

(App. Vol. III at 43-4) (formatting altered).

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(c) Foundry, smelting operations, metal forging, fabricating,

rolling and stamping operations;

(d) Boiler manufacturing, structural steel fabricating, general

manufacturing assembly plants;

(e) Railroad equipment manufacturing, repair and service yards.

(f) Manufacturing of soaps, pharmaceutical paper products,

manufacturing of malt products, brewing distillation of liquor

and spirits, poultry hatchery, stone works and stone cutting,

thermal, electric, and steam power plants;

(g) Concrete mixing, production of concrete blocks and shapes,

cinder blocks and other similar building materials manufactured;

(h) Mining, extraction, washing, and processing of sand, gravel,

and other minerals;

(i) Manufacture and assembly of glass, plastic and rubber

products and implements;

(j) Manufacture of colors, dye, paint and other coatings, and tar

products;

(k) Other uses comparable and compatible to those set forth in

this Article.

(l) Municipal solid waste landfill (non-hazardous) as defined by

329 IAC 10-2-116, as the same may be amended from time-to-

time.

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(App. Vol. III at 46) (emphases in original) (footnote added). Contrary to

Essroc’s assertion, the storage and burning of hazardous materials does not fit

into any one of the Permitted Uses listed for the M2 district.

[17] The CCBZA determined the only zoning district that would permit the burning

of hazardous wastes is the M3 district. According to the CCZO, the intention

of and permitted uses in an “M3 Hazardous Waste Disposal District” are:

Intention of District – This district is restricted to facilities for

the disposal; [sic] destruction, or recycling of toxic chemicals,

radioactive wastes, heavy metals, asbestos and other forms of

hazardous waste whether through incineration, land filling, or

other mechanical, chemical, or technological means.

Permitted Uses – No building, structure or premises shall be

used, arranged or designed to be used except for one or more of

the following uses:

(a) Any use permitted in the M2 district (no Day Care

Centers or Churches);

(b) Landfill;

(c) Waste transfer facilities;

(d) Recycling facilities and related operations;

(e) Storage[,] processing[,] and recycling of hazardous

materials.

(Id. at 49) (emphases in original).

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[18] Essroc first claims that “by the clear and unequivocal terms of the provisions of

the Zoning Ordinance, the receiving and storage of waste, in and of itself, is

insufficient to mandate rezoning to M3.” (Br. of Appellant at 31.) However,

this claim begins with a faulty factual premise as Essroc does not intend to

simply receive and store LWDF. Essroc intends to pump the stored LWDF to

its kiln and burn it as fuel in the kiln.

[19] Essroc next argues its conversion to LWDF as an alternate fuel for its kiln does

not fit into any of the M3 Permitted Uses because it is not engaging in

“[s]torage[,] processing[,] and recycling of” LWDF. (See App. Vol. III at 49.)

Because that pertinent phrase from the ordinance contains the “and”

conjunction, Essroc asserts, the “plain, ordinary, and obvious meaning of the

phrase ‘storage processing and recycling of hazardous materials’ dictates that

Essroc would have to be engaging in the totality of these acts in order to require

M3 zoning to permit them.” (Br. of Appellant at 32 (emphasis in original).)

Essroc does not explain which of those three acts it does not believe it will be

performing and, as such, has not demonstrated error. See Kentucky Nat. Ins. Co.

v. Empire Fire & Marine Ins. Co., 919 N.E.2d 565, 586 (Ind. Ct. App. 2010) (when

party fails to explain how law applies to evidence, it has not demonstrated error

in the appealed decision).

[20] Nevertheless, it seems apparent that Essroc intends to store, process, and

recycle liquid hazardous waste. Essroc’s proposal indicated it would build

additional storage tanks to hold the LWDF, see storage, Webster’s Third New

International Dictionary Unabridged 1976 at 2252 (G. & C. Merriam Co. 1976)

Court of Appeals of Indiana | Opinion 10A04-1709-PL-2199 | April 18, 2019 Page 23 of 38

(“the safekeeping of goods in a warehouse or other depository”); pump the

LWDF through pipes from the storage tanks to the kiln, see process, id. at 1808

(“to move along: GO; esp: to move along in or as if in a procession”) (emphases

in original); 6 and burn the hazardous waste as a fuel for production of concrete.

See recycle, www.dictionary.com/browse/recycling# (last visited March 12,

2019) (“to alter or adapt for new use without changing the essential form or

nature of” or “to use again in the original form or with minimal alteration”).

[21] Finally, CCBZA notes that Essroc’s plan to store LWDF, pump it to the kiln,

and burn it as fuel fits squarely within the intention for which the M3 district

was created – “for the disposal[,] destruction, or recycling of toxic chemicals . . .

and other forms of hazardous waste whether through incineration, land filling,

or other mechanical, chemical, or technological means.” (Appellant’s App.

Vol. III at 49.)

[22] For all these reasons, we affirm the CCBZA’s findings that Essroc’s burning of

hazardous waste is prohibited in the CCZO’s M2 district but permitted in its

M3 district.

6

Processing can also indicate actions taken to alter a product. www.dictionary.com/browse/processing (“to

treat or prepare by some particular series of actions”) (last visited March 20, 2019). If processing is given this

meaning, then it is redundant with recycling. www.dictionary.com/browse/recycling?s=t (“to treat or

process (used waste materials) so as to make suitable for reuse”) (last visited March 20, 2019).

Court of Appeals of Indiana | Opinion 10A04-1709-PL-2199 | April 18, 2019 Page 24 of 38

II. Can Essroc nevertheless burn LWDF on its land as an “accessory use”?

[23] Essroc asserted to the CCBZA that its proposed use of LWDF should be

“permitted as an accessory use as a matter of law.” (App. Vol. II at 149)

(capitalization removed). The CCBZA rejected Essroc’s accessory use

argument when entered an order that affirmed the staff decision of June 27,

2016, prohibiting Essroc from using LWDF without obtaining a variance or re-

zoning its property.

[24] On appeal, Essroc first notes “Indiana recognizes the doctrine of accessory use,

under which the right to establish and maintain a commercial or nonresidential

use normally includes the right to add accessory uses which are secondary to

the permitted one.” (Br. of Appellant at 36.) Essroc then argues the accessory

use of LWDF should be permitted on its property because: (1) “Essroc’s long-

standing primary use (i.e., cement production) would continue without

change,” (id.), and (2) that “accessory use will not in any manner alter or

change the character of the primary use to one which requires a change of

zoning designation to M3 (Hazardous Waste Disposal).” (Id. at 37.) In

support of that argument, Essroc cites Flying J., in which we determined the

overnight parking for RVs and Semi-trucks was a permissible accessory use of a

travel plaza because such parking “would be subordinate to the primary uses of

Court of Appeals of Indiana | Opinion 10A04-1709-PL-2199 | April 18, 2019 Page 25 of 38

the travel plaza and would not change the character of the travel plaza.” 855

N.E.2d at 1043. 7

[25] We cannot, however, agree with Essroc that burning of LWDF can be

permitted as an accessory use in the M2 district (or any other zoning district in

Clark County, for that matter). 8

We note that one long-standing rule of statutory construction is

that expressed in the principle expressio unius est exclusio alterius,

which means that the enumeration of certain things in a statute

necessarily implies the exclusion of all others. This principle is

particularly appropriate where the same term is present in certain

portions of the same enactment, but not in other portions. . . .

[W]here an ordinance specifically lists a use in one category but

not another, that use will be assumed a permitted use only in the

category where it is mentioned.

7

We applied that two-part test in Flying J. because the New Haven Zoning Code defined “accessory use” as

a “building or use subordinate to another structure or use located on the same lot and which does not change

or alter the character of the premises.” Flying J., Inc., 855 N.E.2d at 1042 (quoting and citing the Record).

Clark County, however, adopted a different definition of “accessory use” than the one discussed in Flying J.

Pursuant to the CCZO, an “Accessory Use and Structure” is:

One which (a) is subordinate to and serves a principal building or use; (b) is subordinate in

area, extent or purpose to the principal building or use served; (c) contributes to the

comfort, convenience or necessity of occupants of the principal building or use serve[d];

and (d) is located on the same lot as the principal building or use served with the single

exception of such accessory off-street parking facilities as are permitted to locate elsewhere

than on the same lot with the building or use served.

(App. Vol. III at 12.) Essroc has not explained whether or how burning LWDF to produce cement would

qualify as an accessory use under the CCZO’s definition. As such, this argument is waived. See Kentucky

Nat. Ins. Co., 919 N.E.2d at 586 (failure to cite relevant authority and develop argument results in waiver).

This oversight has not impacted our decision however because, as explained further herein, the “[s]torage

processing and recycling of hazardous materials” is permitted only in the M3 district. (App. Vol. III at 49.)

8

We accordingly need not address the CCBZA’s argument that no accessory uses are permitted in the M2

district because the CCZO lists accessory uses as a permitted use in every zoning district except M2 and M3.

(See CCBZA Br. at 26.)

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Brandmaier v. Metro. Dev. Comm’n of Marion Cty., 714 N.E.2d 179, 180-81 (Ind.

Ct. App. 1999), reh’g denied, trans. denied.

[26] The CCZO provides the storage, processing, and recycling of hazardous wastes

is a use allowed in only the M3 district. As such, it cannot be permitted in any

other zoning district. See, e.g., id. (where sale of fireworks explicitly permitted

in C-4 zone, court would not infer that sale of fireworks was permitted in a C-3

district that permits “development of a complete range of retail sales”).

III. Does Plan Commission staff have the authority to revoke a prior staff-

issued, non-public, informal zoning determination letter by sending another

staff-issued, non-public, zoning determination letter?

[27] The powers of a zoning board are limited strictly to those provided in the

authorizing statute, Flat Rock Wind, 70 N.E.3d at 858, and zoning boards are

“required to follow the provisions of a zoning ordinance.” Flying J., Inc., 855

N.E.2d at 1042. Whenever there is doubt about whether an agency has a

power, the doubt must be resolved against the agency. State ex rel. ANR Pipeline

Co. v. Indiana Dept. of State Revenue, 672 N.E.2d 91, 94 (Ind. T.C. 1996)

(hereinafter “ANR Pipeline”). Any act by a zoning board that exceeds its

enumerated powers is “ultra vires and void.” Flat Rock Wind, 70 N.E.3d at 858

(italics in original).

[28] Article III of the CCZO states: “It is the intent of this Ordinance that all

questions of interpretation shall be first presented to the staff. Appeals of staff

decisions interpreting this Ordinance may be presented to the Board of Zoning

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Appeals as provided for in Article XXII [sic].” 9 (App. Vol. III at 170.) The

CCZO also defines the authority provided to staff:

The staff is authorized to take those lawful actions necessary to

enforce the terms of this Ordinance on behalf of the Plan

Commission and Board of Zoning Appeals. The staff shall also

have the authority to perform inspections, to review applications,

and to issue permits. The [s]taff is authorized to make

inspections of all lands located in the jurisdiction of the Plan

Commission or to enforce the provisions of this Ordinance. In

order to execute inspections, the staff shall have the right to enter

any premises at any reasonable time for the purpose of carrying

out their duties in the enforcement of this Ordinance. The staff is

authorized to take any action authorized under Indiana Code IC

[sic] 36-7-4 et seq. to correct such violations.

(Id. at 169.)

[29] In 1926, our Indiana Supreme Court held “power to undo an act once done will

not be implied from the mere grant of power, in the exercise of a sound

discretion, to do the act.” Cress v. State, 198 Ind. 323, 333-34, 152 N.E. 822, 826

(1926). Accordingly, unless the legislature has given clear authority to revoke

final determinations, administrative bodies do not have the power to change

their minds after a final determination. See ANR Pipeline, 672 N.E.2d at 94

9

Article XXII of the CCZO outlines the purpose and proceedings required to obtain a “special use”

classification. (See App. Vol. III at 62-7.) Such classifications must be presented to the CCBZA, which “shall

approve or deny all special uses.” (Id. at 62.) The appeal process for staff decisions is found instead in

Article XXI. (See id. at 60-1) (“The Board of Zoning Appeals shall approve or deny all . . . [a]ppeals from

staff decisions.”).

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(“administrative bodies may not usually rescind their final determination absent

some statutory provision granting that authority”).

This rule is not absolute, however, for “when an administrative

agency recognizes its own error of law, it may correct that error.”

A mistake of law occurs when “a party, having full knowledge of

the facts, comes to an erroneous conclusion as to their legal

effect.” Thus, in order to show an error of law occurred . . . , [the

agency] must cite to a statute, legal principle, or change in case

law that was neglected or misapplied to the facts.

Id. (internal citations omitted).

[30] For example, in ANR Pipeline, ANR Pipeline petitioned the Indiana

Department of State Revenue asking permission to file amended tax returns to

recalculate its tax liability based on a “combined basis” rather than the

“separate company filing method.” Id. at 92. On May 15, 1989, the

Department granted ANR Pipeline’s petition, so ANR Pipeline filed amended

returns. Id. The Department, however, rejected the amended returns, stating

the combined basis method was inappropriate. Id. ANR Pipeline appealed,

and the Department held a hearing. Id. The Department then issued a Letter

of Findings (“First LOF”) on December 7, 1993, sustaining ANR Pipeline’s

protest and giving ANR Pipeline permission to file the amended return using

the combined basis method. Id. However, on November 7, 1994, the

Department issued a second Letter of Findings (“Second LOF”) in which it

asserted it was revoking the First LOF because of a “mistake of law.” Id. at 93.

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[31] ANR Pipeline appealed to the Indiana Tax Court, arguing the Department did

not have the authority to revoke its First LOF. The Department asserted it

could revoke the First LOF because, as the Second LOF stated, the First LOF

contained an error of law. 10 Id. at 94. The Tax Court reviewed the record and

determined the Second LOF had not reversed the First LOF based on an error

of law:

[T]he second LOF states on its face that its purpose was to

revoke the first LOF “as it relates to the finding that the entire

Costal group may file retroactive combined returns for the years

1986 and 1987 . . . based upon a mistake of law.” Second LOF

at 1. However, the Department’s reasoning in the second LOF

belies this characterization. The first LOF granted ANR

[Pipeline] the right to file amended combined/unitary returns

pursuant to IND.CODE ANN. § 6-3-2-2(q). The second LOF

did not address [that statute] and whether the law was properly

interpreted and applied in this instance. Rather, the second LOF

focused on two issues: first, Indiana does not statutorily

guarantee taxpayers the right to file amended returns, and

second, amended returns are inappropriate, under federal law,

where the taxpayer has already selected a valid method of

taxation but attempts to change to an alternative method merely

to minimize taxes. Such a change in reasoning does not constitute an

error of law and does not justify the alteration of a final administrative

decision.

10

The Department also asserted the First LOF could be revoked because it was not a final determination.

The Tax Court held: “The first LOF was a proper exercise of the Department’s authority pursuant to

IND.CODE ANN. § 6-8.1-5-1(b) (1989) and constitutes a final determination by the Department.” ANR

Pipeline, 672 N.E.2d at 94. Herein, we need not determine whether an informal decision by Plan

Commission staff is a final determination because the first letter issued to Essroc was incorrect as a matter of

law.

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Id. at 94-5 (emphasis added). Thus, for the Department to have the authority to

reverse a final determination, the reversal must be required by an actual error of

law, not simply a change of reasoning. See id. at 95.

[32] Here, in contrast, Plan Commission staff revoked the first letter to Essroc based

on an actual error of law. In the first letter, staff concluded: “Essroc’s use of

such alternative fuels will not require a rezoning to M3 (Hazardous Waste

Disposal District) for any portion of its facilities or the grant of any use

variance.” (App. Vol. II at 61.) In the second letter, staff concluded that “in

order to add the uses which are the subject of IDEM approval [hazardous waste

storage and treatment facility], Essroc must file for rezoning to an M-3 zone

and/or file for a variance prior to any such use at its Speed facility.” 11 (Id. at

127.) When Essroc appealed that decision to the CCBZA, the CCBZA found

and concluded:

5. On January 26, 2015, without a public hearing

and/or public meeting, but apparently in a meeting with Essroc

11

The parties disagree whether Plan Commission staff’s first letter was erroneous because of alleged

misrepresentations made to staff when Essroc requested the first letter. As Judge Mathias acknowledged

during oral argument, Essroc’s original letter to the Plan Commission requesting certification of zoning

compliance for the switch to LWDF contained language sufficiently vague to permit an inference that

LWDF were not Hazardous Waste. (See App. Vol. II at 53) (stating the “alternative fuels . . . would be

flammable (as required to create heat for the kiln), and would be accordingly designated as ‘hazardous’ due

to such flammability”). Counsel for Essroc pointed to statements at the CCBZA hearing that suggested the

Plan Commission staff had accurate facts when the Plan Commission staff issued the first letter. (See App.

Vol. III at 184) (“they are claiming here tonight they are doing exactly what they told us the first night”).

However, the record before us includes neither the packet of materials that Essroc allegedly provided to the

Plan Commission at their informal meeting in early January 2015 nor a transcript of (or an agreed statement

of facts regarding) the discussions that occurred that day. We accordingly decline to speculate whether the

Plan Commission’s original error of law was based on accurate or inaccurate facts. Furthermore, under the

legal standard set out in ANR Pipeline, we are concerned only with whether the Plan Commission made an

error of law, not with why that erroneous decision might have been made.

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on January 22, 2015, the then Executive Director of the Clark

County Plan Commission, Michael Tackett issued a

determination that Essroc Cement was able to, as a matter of

right, burn regulated liquid waste-derived fuel at its location

without a zoning change and/or a zoning variance from its M2

zoning district (the “Interpretation”).

6. The “M2 (Heavy Industrial)” in the Ordinance does

not allow the destruction or recycling [or] the burning of

hazardous waste.

*****

8. Pursuant to the Ordinance the only zoning district

in Clark County, Indiana allowing the burning of hazardous

waste is an “M3 Hazardous Waste Disposal District” in Clark

County, Indiana, and the same is described in Article XVII of the

Ordinance.

*****

18. The Interpretation by the then Executive Director

was improper, incorrect[,] and as the intended use by Essroc,

according to its own filing with the Indiana Department of

Environmental Management (“IDEM”) for a RCRA Permit

(VFC#80012744) its new intended use [sic] stated it as a

“Hazardous Waste Storage Facility; Hazardous Waste

Treatment Facility.”

19. Essroc in February of 2015 also applied to modify

(significantly) it [sic] Part 70 Operation Permit (“Title V Permit”)

to begin utilizing LWDF. The preliminary findings of IDEM

conclude that Essroc will construct a RCRA LWDF waste

receiving and storage facility at it [sic] Real Estate.

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20. The proposed use by Essroc is a prohibited use in an

M2 zoning district in Clark County, Indiana.

21. The Determination should be affirmed in all

respects requiring Essroc to file a Petition for Rezoning the Real

Estate or a Petition for a Use [V]ariance for its intended uses

which are the subject of the IDEM approval.

(Id. at 186, 188.)

[33] The CCBZA correctly determined Essroc’s proposal to receive, store, process,

and burn LWDF Hazardous Waste could be permitted only on land zoned M3

under the CCZO. See supra Issue I. Accordingly, the Plan Commission staff’s

first letter to Essroc was erroneous as a matter of law. Staff therefore had the

authority to correct its earlier, legally erroneous decision. See, e.g., Civil City of

Indianapolis v. Ostrom Realty & Const. Co., 95 Ind. App. 376, 176 N.E. 246, 248

(1931) (“Building permits or licenses issued by the city controller have no force

and effect to authorize the construction of a building contrary to the

ordinance.”).

IV. If Plan Commission staff could revoke the initial staff determination, was

Essroc entitled to notice and a public hearing before that revocation?

[34] Essroc asserts it was entitled to notice and a public hearing before Plan

Commission staff could issue a new staff determination that revoked the prior

staff determination. In support, Essroc cites Schlehuser v. City of Seymour, 674

N.E.2d 1009, 1014 (Ind. Ct. App. 1996), which held a board of zoning appeals

(“BZA”)

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had the implied authority to revoke Schlehuser’s variances if they

were granted subject to reasonable and clearly stated conditions

of approval and if Schlehuser then failed to meet those

conditions. However, even in this circumstance, Schlehuser was

entitled to notice and an opportunity to be heard.

Id. at 1014. As the CCBZA argues, however, Essroc is misapplying Schlehuser.

[35] Schlehuser involved the revocation of variances that had been approved by a

local BZA. As the application process for variances generally requires a public

hearing before a BZA, during which evidence and argument are presented, (see,

e.g., App. Vol. III at 60) (providing hearing for variance), then, as we held in

Schlehuser, subsequent action by a BZA as to those same variances ought also

require notice and an opportunity to be heard. See Schlehuser, 674 N.E.2d at

1014.

[36] Here, though, Essroc was not complaining about a subsequent action by the

CCBZA, whose rules require public hearing following notice. (See id. at 60)

(providing Board must set public hearing for appeals of staff decisions). Essroc

instead is arguing about subsequent action by Plan Commission staff. Essroc

has not pointed to any section of the CCZO, nor could we find one, that

requires public notice or a hearing before Plan Commission staff produce an

opinion letter. (See generally App. Vol. III at 7-10) (explaining the

administration of the CCZO). As staff opinions are produced without public

hearing following notice, Essroc has not demonstrated error in staff’s issuance

of the second letter without a public hearing or notice.

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V. Is the CCBZA equitably estopped from requiring Essroc to rezone because

Essroc spent money in reliance on the first determination letter?

[37] Essroc argues the CCBZA should be equitably estopped from requiring Essroc

to obtain a variance or to re-zone its property because “Essroc had expended in

excess of $1.2 million in reliance on” the Plan Commission’s original zoning

determination letter. (Br. of Appellant at 36 n.6.) The CCBZA argues Essroc

waived this argument by failing to raise it before the Board.

[38] “[A] person may obtain judicial review only of an issue that was raised before

the administrative agency, with two very limited exceptions . . . .” Roman

Marblene Co., Inc. v. Baker, 88 N.E.3d 1090, 1098 (Ind. Ct. App. 2017) (citing

Ind. Code § 4-21.5-5-10), trans. denied. Those two exceptions are:

(1) the issue concerns whether a person who was required to be

notified by this article of the commencement of a proceeding was

notified in substantial compliance with this article; or

(2) the interests of justice would be served by judicial resolution

of an issue arising from a change in controlling law occurring

after the agency action.

Ind. Code § 4-21.5-5-10. As Essroc’s estoppel argument does not assert a failure

to notify a required party or a recent change in controlling law, Essroc cannot

raise this issue during judicial review of the CCBZA’s decision. 12 See, e.g.,

12

Had this issue not been waived, “[e]stoppel is not generally applicable against government entitles for the

actions of public officials.” Barnett v. U.S. Architects, LLP, 15 N.E.3d 1, 10 (Ind. Ct. App. 2014) (quoting

Biddle v. BAA Indianapolis, LLC, 860 N.E.2d 570, 581 (Ind. 2007)), reh’g denied. There are two reasons for this

Court of Appeals of Indiana | Opinion 10A04-1709-PL-2199 | April 18, 2019 Page 35 of 38

Indiana Educ. Emp’t Relations Bd. v. Tucker, 676 N.E.2d 773, 776-7 (Ind. Ct. App.

1997) (appellant could not raise impartiality of administrative board for first

time on appeal; issue waived for failure to raise before administrative agency).

VI. Should Finding 18, Finding 19, and Conclusion 7 be struck from the trial

court’s final order because the issue of whether the CCZO is preempted by

federal law was not before the trial court?

[39] The trial court entered two findings and one conclusion regarding whether the

CCZO’s M3 district is preempted by federal law. 13 All parties seem to agree the

rule. First, “[i]f the government could be estopped, then dishonest, incompetent or negligent public officials

could damage the interests of the public.” Id. (quoting Samplawski v. City of Portage, 512 N.E.2d 456, 459

(Ind. Ct. App. 1987)). Second, “if the government were bound by its employees’ unauthorized

representations, then government, itself, could be precluded from functioning.” Id. (quoting Samplawski, 512

N.E.2d at 459).

13

The trial court’s original findings and conclusion provided:

18. That Essroc in its Verified Petition (Paragraph 28) waived its rights to argue that

the Clark County zoning ordinance zoning classification M3 Hazardous Waste Disposal

District is preempted by RCRA.

19. That the Clark County zoning ordinance, I.C. 36-7-4-918.4 (use variance) and I.C.

36-7-4-918.5 (developmental variance) all have a basis in public health, safety, morals and

general welfare of the community and therefore are not in derogation of federal RCRA

law.

*****

7. The Clark County Zoning Ordinance, I.C. 36-7-4-918.5 and I.C. 36-7-4-918.4 are

not preempted by Federal RCRA law as each has a basis in human health or environmental

protections.

(App. Vol. IV at 97, 98.) In the order granting Essroc’s motion to correct error, the trial court modified

finding 18 to read:

That Essroc in its verified Petition (paragraph 28) initially waived its right to argue that the

Clark County Zoning Ordinance, zoning classification M3 Hazardous Waste Disposal

District is preempted by RCRA, however, such issue was tried by consent of the parties by

Essroc arguing that issue in the BZA hearing and by Essroc fully briefing the issue in

Article VI of it’s [sic] Brief, responded to and briefed by the BZA in Article IV of it’s [sic]

Brief in support of its Cross-Motion for Summary Judgment.

(Id. at 130.)

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issue could not have been raised in the trial court during judicial review of the

CCBZA’s decision because the issue had not been raised before the CCBZA.

Nevertheless, CCBZA and Sierra Club assert we should address this issue

because it was raised by Essroc and addressed by the trial court.

[40] As we discussed above, issues can be raised for the first time during judicial

appeal from an administrative decision only if one of two exceptions is asserted:

(1) the issue concerns whether a person who was required to be

notified by this article of the commencement of a proceeding was

notified in substantial compliance with this article; or

(2) the interests of justice would be served by judicial resolution

of an issue arising from a change in controlling law occurring

after the agency action.

Ind. Code § 4-21.5-5-10. The federal preemption issue does not arise from a

change in controlling law that occurred after the CCBZA’s decision, and thus

neither the trial court nor we can address that issue, which was not presented to

the administrative board. See, e.g., Tucker, 676 N.E.2d at 776-7 (appellant could

not raise impartiality of administrative board for first time on appeal; issue

waived for failure to raise before administrative agency). The trial court erred

when it entered these findings and conclusion.

Conclusion

[41] The CCBZA correctly determined the CCZO permits the storage, processing,

and recycling of hazardous waste as alternative fuel for production only in the

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M3 zoning district. Accordingly, such activity is not available as an accessory

use in the M2 zoning district. Because the first letter sent to Essroc was legally

erroneous, Plan Commission staff had the authority to revoke that letter with a

new letter that corrected its original error of law, and Essroc was not entitled to

notice and a public hearing before that second letter was issued. As neither

equitable estoppel nor federal preemption were raised before the CCBZA, those

issues are unavailable during judicial review of the CCBZA’s decision. As all of

Essroc’s assertions of CCB2A error fail, we affirm the decision of the CCBZA.

[42] Affirmed.

Riley, J., and Mathias, J., concur.

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