Connie Ehrlich v. Starke Solar, LLC d/b/a Mammoth Solar

FILED

Sep 07 2023, 8:43 am

CLERK

Indiana Supreme Court

Court of Appeals

and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Jason M. Kuchmay STARKE SOLAR, LLC D/B/A

Snyder Morgan Federoff & Kuchmay, MAMMOTH SOLAR

LLP Rachel S. Bir

Syracuse, Indiana Kaylin O. Cook

Christopher D. Shelmon

Gutwein Law

Lafayette, Indiana

ATTORNEYS FOR APPELLEE

PULASKI COUNTY COUNCIL

Mark J. Crandley

Barnes & Thornburg LLP

Indianapolis, Indiana

Kevin C. Tankersley

Winamac, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Connie Ehrlich, et al., September 7, 2023

Appellants-Petitioners, Court of Appeals Case No.

22A-PL-1738

v. Appeal from the Pulaski Superior

Court

Starke Solar, LLC d/b/a The Honorable Richard R.

Mammoth Solar, and the Pulaski Stalbrink, Jr., Special Judge

County Council, Trial Court Cause No.

Appellees-Respondents 66D01-2201-PL-1

Court of Appeals of Indiana | Opinion 22A-PL-1738 | September 7, 2023 Page 1 of 22

Opinion by Judge May

Judges Crone and Weissmann concur.

May, Judge.

[1] Connie Ehrlich, et al. (collectively “Remonstrators”) appeal the trial court’s

order upholding a designation by the Pulaski County Council (“the Council”)

of approximately 9,205 acres in Pulaski County (“the Property”) as an

Economic Revitalization Area (“ERA”) and the approval of a tax abatement

for that Property. Starke Solar, LLC d/b/a Mammoth Solar (“Mammoth”)

plans to develop a commercial solar-power facility (“Solar Project”) on the

Property. Remonstrators raise multiple issues, which we consolidate and

restate as whether, as a matter of law, farmland on which drainage tiling and

irrigation systems have been installed qualifies as land that has been

“developed” and “improved” for purposes of the statutory definition of an

ERA. On cross-appeal, Mammoth and the Council (collectively “Appellees”)

assert Remonstrators lack standing to appeal the Council’s decision. Because

Remonstrators have standing but their legal arguments fail, we affirm.

Facts and Procedural History

[2] In order to develop the Solar Project, Mammoth sought a tax abatement by

having the Property designated an ERA. Remonstrators are landowners in

Pulaski County. On August 9, 2021, the Council held a public meeting to

consider Mammoth’s request. At that meeting the Council passed and adopted

Pulaski County Resolution No. 2021-09 (the “Preliminary Resolution”)

Court of Appeals of Indiana | Opinion 22A-PL-1738 | September 7, 2023 Page 2 of 22

establishing the Property as an ERA for a period of 40 years. (Appellants’ App.

Vol. II at 39.) In conjunction with the Preliminary Resolution, maps and plats

were provided that identified the Property. The Council set October 25, 2021,

as the date for a public hearing for receiving remonstrations and objections from

interested persons prior to adopting a final resolution on the ERA, but that

public hearing was moved to December 13, 2021, due to the amount of

information to consider.

[3] The Council appointed a steering committee to review all the relevant

information and to make recommendations to the Council. Remonstrators

submitted written objections and written remonstrances prior to the hearing on

December 13, 2021, and Remonstrators also received draft copies of reports

that Mammoth had provided regarding the impact of the Solar Project on

Pulaski County. The public hearing was held on December 13, 2021, with

Remonstrators appearing individually and by counsel. Time was given for

public comment, and then the Council continued the public meeting until

January 10, 2022, so that it had time to review and consider the evidence

presented. The Council invited individuals to submit additional written

commentary and evidence regarding the ERA designation and proposed tax

abatement. In response thereto, Remonstrators presented Supplemental

Objections.

[4] On January 10, 2022, the Council held the continued public meeting. At that

meeting, the Council confirmed the Preliminary Resolution, designated the

Property an ERA, and approved the tax abatement. The “Confirmatory

Court of Appeals of Indiana | Opinion 22A-PL-1738 | September 7, 2023 Page 3 of 22

Resolution” – “Pulaski County Resolution No. 2021-15/2022-01” – states, in

necessary part:

1. the [Property] is within the County and the [Property] has

become undesirable for, or impossible of, normal development

and occupancy because of a lack of development, cessation of

growth, deterioration of improvements or character of

occupancy, age, obsolescence, substandard buildings, or other

factors which have impaired values and prevented a normal

development of property and use of property;

2. the [Property], described in Exhibit A and located at locations

within Pulaski County described by the maps included as Exhibit

B, are designated an Economic Revitalization Area for a period

of 40 years commencing this day, confirming the prior

resolution;

3. this Economic Revitalization Area allows abatement of

property taxes attributable to redevelopment or rehabilitation

activities and the installation of new manufacturing equipment,

all as defined in I.C. 6-1.1-12.1-1 and permitted under I.C. 6-101-

121-3 and I.C. 6-1.1-12-4.5;

4. such redevelopment or rehabilitation activities and such

manufacturing equipment as described in part 3, above, are

limited strictly to investments made for the purpose of generating

electricity from solar energy for the public grid and to activities

and equipment in direct support of such efforts, or to other

purposes related thereto and fully compliant with the Pulaski

County Unified Development Ordinance, as amended, and any

actions taken by the Pulaski County Advisory Plan Commission

or Pulaski County Board of Zoning Appeals in their efforts to

enforce and interpret aforesaid ordinance;

Court of Appeals of Indiana | Opinion 22A-PL-1738 | September 7, 2023 Page 4 of 22

5. based on the information in the Statement of Benefits

describing the Project:

(a) the estimate of the cost of the Equipment is reasonable

for equipment of that type;

(b) the estimate of the number of individuals who will be

employed or whose employment will be retained can be

reasonably expected to result from the installation of the

Equipment;

(c) the estimate of the annual salaries of those individuals

who will be employed or whose employment will be

retained can be reasonably expected to result from the

installation of the Equipment;

(d) the other benefits about which information was

requested are benefits that can be reasonably expected to

result from the proposed installation of the Equipment;

(e) the totality of benefits is sufficient to justify the granting

of personal property tax deductions to the Applicant

pursuant to IC 6-1.1-12-4.5;

*****

8. having made its findings in the affirmative, the Council

approves the aforesaid tax abatement and confirms the

Preliminary Resolution[.]

(Id. at 69-70.)

Court of Appeals of Indiana | Opinion 22A-PL-1738 | September 7, 2023 Page 5 of 22

[5] On January 20, 2022, Remonstrators filed a petition for judicial review in the

Pulaski Superior Court to challenge the Confirmatory Resolution. The petition

for review alleged “the adoption of the Confirmatory Resolution is: (i) contrary

to economic revitalization area law; (ii) arbitrary and capricious; (iii)

unsupported by the evidence; (iv) in violation of the Petitioners’ Due Process

rights; and (v) otherwise contrary to Indiana law.” (Id. at 37.) On April 1,

2022, Mammoth filed a motion for judgment on the pleadings challenging

Remonstrators’ standing to bring the judicial review action based on

Mammoth’s assertion that Remonstrators were not aggrieved by the Council’s

decision. The trial court heard argument on April 25, 2022. None of the

parties submitted additional evidence as permitted by Indiana Code section 6-

1.1-12.1-2.5(e). Remonstrators argued the question before the court – whether

farmland could qualify as an ERA – was a question of law, rather than facts.

On June 30, 2022, the trial court issued an order confirming the Council’s

designation of the Property as an ERA and approval of a tax abatement. 1 The

trial court’s order included the following conclusions of law:

17. Creation of an ERA is a discretionary tool that allows the

County Council to designate an area for economic revitalization.

IC 6-1.1-12.1-1.

18. Once the ERA is established, taxpayers in the ERA may

apply for a property tax abatement.

1

The trial court’s order did not address Remonstrators’ standing to appeal the Confirmatory Resolution.

Court of Appeals of Indiana | Opinion 22A-PL-1738 | September 7, 2023 Page 6 of 22

19. The County Council began this process by establishing an

ERA in Preliminary Resolution No. 2021-09 wherein they

designated approximately 9,205.33 acres owned by several

different owners, none of whom are petitioners in this matter.

20. On December 13, 2021, and January 10, 2022, public

hearings were held wherein the County Council reviewed

evidence submitted by the remonstrators and by Mammoth.

Ultimately, the decision was made to allow the designation of the

ERA and allow the tax abatements.

21. The Petitioners first argue that the ERA set by the County

does not qualify under the standards for an “economic

revitalization area” as defined by Ind. Code § 6-1.1-12.1-1(1).

The County Council was required to weigh the facts and apply

them to the governing standard. A territory can be designated as

an ERA if it is:

an area which is within the corporate limits of a city, town,

or county which has become undesirable for, or impossible

of, normal development and occupancy because of a lack

of development, cessation of growth, deterioration of

improvements or character of occupancy, age,

obsolescence, substandard buildings, or other factors

which have impaired values or prevent a normal

development of property or use of property.

Ind. Code § 6-1.1-12.1-1(1). The County Council determined

that the ERA territory satisfies this definition because of “lack of

development” or “cessation of growth” where there is no

development occurring in the ERA territory. Id.

22. The words “development” and “growth” must be given their

“plain meaning” and the Court must “consider the structure of

Court of Appeals of Indiana | Opinion 22A-PL-1738 | September 7, 2023 Page 7 of 22

the statute as a whole.” Abbott v. State, 183 N.E.3d 1074 (Ind.

2022).

23. There are no structures or other improvements on the parcels

in the ERA. By contrast, “development” of property typically

means adding improvements such as buildings or other

structures. For instance, Black’s Law Dictionary defines

“development” as “a substantial human-created change to

improved or unimproved real estate, including the construction

of buildings or other structures.” Development, BLACK’S LAW

DICTIONARY (11th ed. 2019).

24. The General Assembly uses the term “development” to mean

the same thing. Just four subsections after the provision defining

an ERA, the General Assembly defined “redevelopment” to

mean “the construction of new structures, in economic

revitalization areas, either: (A) on unimproved real estate; or (B)

on real estate upon which a prior existing structure is demolished

to allow for a new construction.” Ind. Code § 6-1.1-12.1-1.

25. The term “development” is used elsewhere throughout the

Indiana Code to work hand-in-hand with “improvements” to

property. See also Ind. Code § 36-7-4-1303 (“As used in this

series, “development” means an improvement of any kind on

land.”); Ind. Code § 6-3.6-2-8.

26. The County Council was within its discretion to determine

that the ERA did not include these types of improvements or

otherwise showed any “growth” or “development.” The

property is unimproved, undeveloped farmland with no

opportunities for growth or development outside the [S]olar

[P]roject.

27. The language defining an ERA does not exempt land that is

currently being farmed from its scope. The ERA statutes apply

Court of Appeals of Indiana | Opinion 22A-PL-1738 | September 7, 2023 Page 8 of 22

when there is no “development” or “growth,” even if the

property is being farmed. Ind. Code § 6-1.1-12.1-1(1).

28. The General Assembly left it to local elected bodies to

determine where development is needed. If the General

Assembly intended to limit these ERAs on farmland, it would

have said so. Orange v. Indiana Bureau of Motor Vehicles, 92

N.E.3d 1152, 1155 (Ind. Ct. App. 2018). The Petitioners cannot

read that limitation into the statute when there is no language to

support that reading. Id. (“[I]t is just as important to recognize

what a statute does not say as it is to recognize what it does

say.”) (quoting Rush v. Elkhart Cty. Plan Comm’n, 698 N.E.2d

1211, 1215 (Ind. Ct. App. 1998)). The Petitioners may not

“engraft new words” or create new restrictions under the guise of

statutory construction. Kitchell v. Franklin, 997 N.E.2d 1020,

1026 (Ind. 2013).

29. The General Assembly recently amended Indiana Code § 6-

1.1-12.1-1, effective July 1, 2022, to add language allowing ERAs

to include “an area of land classified as agricultural land for

property tax purposes that, as a condition of being designated an

economic revitalization area, will be predominately used for

agricultural purposes for a period specified by the designating

body.” See P.L. 8-2022 (S.E.A. 119).

30. The Court notes the General Assembly’s recent amendment

to Indiana Code § 6-1.1-12.1-1 to the extent that it provides

context and insight into the legislative intent behind the already

existing general definition of an ERA.

31. The amendment specifies that land that will continue to be

used for agricultural purposes can be designated as an ERA.

This language does not in any way suggest that the existing

language of Ind. Code § 6-1.1-12.1-1 excluded farm property

Court of Appeals of Indiana | Opinion 22A-PL-1738 | September 7, 2023 Page 9 of 22

from being designated as an ERA for purposes of improvements

and other development.

32. While the amendments are instructive as to the legislative

intent to include agricultural land, the Court applies the language

as it currently exists.

33. In any event, the statute allows an ERA when there is

“obsolescence” or “other factors” warranting the designation.

Ind. Code § 6-1.1-12.1-1(1). The [S]olar [P]roject is located near

where NIPSCO has installed high tension lines, making the area

uniquely situated to easily provide energy to the grid. This

unique feature creates an opportunity that renders the use of the

property “obsolete” for farming.

34. The Council’s determination that the real estate is an ERA is

supported by substantial evidence in the record. It is

unimproved, underdeveloped, and limited solely to agricultural

use which has caused a cessation of growth.

35. Because Council’s determination is supported by substantial

evidence, the Council’s determination is not arbitrary and

capricious. See, City of Indianapolis v. Woods, 703 N.E.2d 1087,

1093 (Ind. Ct. App. 1998).

(Appellants’ App. at 26-29) (formatting in original).

Discussion and Decision

1. Standing

[6] Appellees’ challenge to Remonstrators’ standing to appeal from the Council’s

ruling is a “threshold issue[,]” which we must address first. Solarize Indiana, Inc.

Court of Appeals of Indiana | Opinion 22A-PL-1738 | September 7, 2023 Page 10 of 22

v. S. Ind. Gas & Elect. Co., 182 N.E.3d 212, 216 (Ind. 2022). To be entitled to

have a court decide a legal dispute, “a plaintiff must be a ‘proper person’ to

invoke the court’s authority.” Id. (quoting Horner v. Curry, 125 N.E.3d 584, 589

(Ind. 2019)). Standing may be conferred by statute or by common law, id., and

when the legislature has provided a standing requirement for review of specific

forms of government action, that is the requirement that we apply. Id. at 217.

Regardless of the alleged basis for standing, if “plaintiffs allege no injury, there

is no justiciable dispute.” City of Gary v. Nicholson, 190 N.E.3d 349, 351 (Ind.

2022). We review questions of standing de novo. Mammoth Solar v. Ehrlich, 196

N.E.3d 221, 236 (Ind. Ct. App. 2022).

[7] Regarding the appeal of a decision about an ERA, our legislature provided: “A

person who filed a written remonstrance with the designated body under this

section and who is aggrieved by the final action taken may . . . initiate an

appeal of that action . . . .” Ind. Code § 6-1.1-12.1-2.5(d). The Remonstrators

filed written remonstrances with the Council. Appellees allege, however, that

Remonstrators were not “aggrieved” by the Council’s decision.

To be aggrieved, the petitioner must experience a substantial

grievance, a denial of some personal or property right or the

imposition . . . of a burden or obligation. The . . . decision must

infringe upon a legal right of the petitioner that will be enlarged

or diminished by the result of the appeal and the petitioner’s

resulting injury must be pecuniary in nature. A [petitioner] must

show some special injury other than that sustained by the

community as a whole.

Court of Appeals of Indiana | Opinion 22A-PL-1738 | September 7, 2023 Page 11 of 22

Bagnall v. Town of Beverly Shores, 726 N.E.2d 782, 786 (Ind. 2000) (internal

citation and quotation marks omitted).

[8] Remonstrators note Mammoth challenged their standing when Remonstrators

previously appealed the decision of the Pulaski County Board of Zoning

Appeals (“BZA”) granting a special exception for Mammoth to build the same

Solar Project at issue herein. See Mammoth Solar, 196 N.E.3d 221. Therein, we

held Remonstrators had standing to challenge the BZA’s decision because their

“evidence that they would suffer a pecuniary loss was sufficient to show that

they were aggrieved.” Id. at 237. That evidence included the following:

Pulaski County real estate agent Stevenson submitted to the BZA

a written report, wherein Stevenson concluded that the property

values of rural homes, recreational land, and farmland would all

decrease if the [Commercial Solar Energy Systems] were to be

constructed. In addition, real estate broker Spooner, who

conducted six months of research on the impact of a proposed

solar farm in Madison County, submitted a report wherein she

concluded that houses surrounded by a solar farm on three or

four sides would be worthless, houses affected on two sides

would suffer a 40% decrease in value, houses within one mile of

a solar farm would suffer a 10% to 40% decrease in value, and

houses within three miles of a solar farm would suffer a 10% to

20% loss. Indeed, even the BZA’s decision specifically

concluded that it was “undeniable and unavoidable” that a

significant number of the 220 homes within one mile of the

proposed site would see a decrease in property values.

Id. Remonstrators assert “[t]he standard in this case is the same, and the result

should be the same here as well.” (Appellants’ Reply Br. (hereinafter “Reply

Br.”) at 9.)

Court of Appeals of Indiana | Opinion 22A-PL-1738 | September 7, 2023 Page 12 of 22

[9] Appellees argue that, while the “aggrieved” standard is the same, the decision

being appealed – and thus the injury that needed to be demonstrated by

Remonstrators – is not the same. The Council argues Remonstrators did not

demonstrate they were aggrieved by “the grant of a tax abatement to their

neighbors’ property[.]” (Council Br. at 13.) According to Appellees, this was

the particular injury that Remonstrators needed to demonstrate to have

standing to appeal the ERA decision. In support, Mammoth points to our

Indiana Supreme Court’s decision last year in Solarize Indiana, Inc. v. Southern

Indiana Gas and Electric Co., 182 N.E.3d 212 (2022).

[10] In Solarize, the Court was determining whether Solarize had standing to appeal

a ruling by the Indiana Utility Regulatory Commission. The Court noted

standing to appeal such rulings was created by statute and gave standing to

parties who were “adversely affected by any final decision, ruling, or order of

the commission[.]” Ind. Code § 8-1-3-1. The Court reiterated that

demonstration of being “adversely affected” required a party to show three

elements: “(1) it must have a personal (rather than general) interest in the

outcome; (2) it must have suffered or be in immediate danger of suffering an

injury; and (3) the injury must be a direct result of the final decision, ruling, or

order.” Solarize, 182 N.E.3d at 218-19. The Court noted a “‘direct injury’ is

‘[a]n injury resulting directly from a particular cause, without any intervening

causes.’” Id. at 220 (quoting Black’s Law Dictionary (11th ed. 2019)). The Court

then held Solarize did not have standing to appeal the Commission’s decision

because the injury Solarize alleged – fewer customers entering the solar market,

Court of Appeals of Indiana | Opinion 22A-PL-1738 | September 7, 2023 Page 13 of 22

which will decrease Solarize’s funding – “would be the indirect result of

intervening causes—market forces—on its potential customers and suppliers.”

Id. at 220.

[11] Mammoth argues:

Petitioner-[Remonstrators] failed to present any argument as to

how they could plausibly suffer an injury as a direct result of the

County Council’s determination designating the [Property] as an

ERA. In fact, all of Petitioner-[Remonstrators]’ “grievances” are

a result of the Solar Project itself, raised only in other litigation in

which most Petitioner-[Remonstrators] are parties, which is

irrelevant for Petitioner-[Remonstrators]’ standing to challenge

the County Council’s Confirmatory Resolution designating the

[Property] as an ERA.

(Mammoth Br. at 26-27.)

[12] Appellees are correct that the available evidence suggests the Remonstrators

will not sustain pecuniary injury from the tax abatement itself, as the abatement

is predicted to decrease property taxes for taxpayers in Pulaski County.

(Mammoth App. Vol. II at 34-35.) Nor can the Remonstrators rely on their

arguments that “there would be a loss of jobs and income in the county” (Reply

Br. at 9), and “the price at which Remonstrators could rent or acquire farmland

in the County would be negatively impacted,” 2 (id.), as those injuries will be

2

Remonstrators also allege “[t]hey suffered due process violations in the manner in which the tax abatement

hearings were conducted[.]” (Reply Br. at 9.) However, as the alleged due process violations occurred before

the entry of the Confirmatory Resolution, those alleged violations did not result from the Council’s adoption

of the Confirmatory Resolution.

Court of Appeals of Indiana | Opinion 22A-PL-1738 | September 7, 2023 Page 14 of 22

borne by the community generally. See, e.g., Pflugh v. Indianapolis Historic

Preservation Comm’n, 108 N.E.3d 904, 910 (Ind. Ct. App. 2018) (additional

noise, traffic, and children in the street – “harms that would be common to the

community as a whole” – do not qualify as the personal special injury required

to confer standing), trans. denied.

[13] The remaining injury alleged by Remonstrators is “their property values would

decrease[.]” (Reply Br. at 9.) Appellees argue the decrease in property value is

not a “direct injury” of the ERA declaration and abatement, but rather a

product of the decision of the BZA. We would be inclined to agree with

Appellees if the ERA designation and tax abatement were for business

development generally, but in fact, the Council’s decision explicitly applies only

to the development of the Solar Project. The Confirmatory Resolution

provided:

4. such redevelopment or rehabilitation activities and such

manufacturing equipment as described in part 3, above, are

limited strictly to investments made for the purpose of

generating electricity from solar energy for the public grid and

to activities and equipment in direct support of such efforts, or

to other purposes related thereto and fully compliant with the

Pulaski County Unified Development Ordinance, as amended,

and any actions taken by the Pulaski County Advisory Plan

Commission or Pulaski County Board of Zoning Appeals in their

efforts to enforce and interpret aforesaid ordinance[.]

Court of Appeals of Indiana | Opinion 22A-PL-1738 | September 7, 2023 Page 15 of 22

(Appellants’ App. Vol. II at 69) (emphasis added). Thus, it seems clear the

Council’s adoption of this Confirmatory Resolution was as necessary for the

Solar Project as was the decision of the BZA.

[14] Furthermore, we believe there is a distinction between the “market forces”

referenced in Solarize and the market forces at play when a landowner’s

property value will shrink due to a government body’s decision regarding

adjacent land. Solarize involved a business and the market forces that might

cause that business to no longer be as profitable due to shrinkage of customers

or suppliers. That holding is more akin to EP MSS LLC v. Merrillville Board of

Zoning Appeals, 192 N.E.3d 981 (Ind. Ct. App. 2022), trans. denied, wherein we

held the owner of a storage facility does not have standing to appeal the grant of

a special exception for another business to open a storage facility, because

businesses do “not have a right to be free from competition” and the danger of

losing business is not a ”special injury.” Id. at 987. In contrast, the injuries to

property values expected to be experienced the Remonstrators herein are no less

direct than when the Remonstrators were appealing the BZA’s grant of the

application for a special exception that would permit the building of the Solar

Project. Both this Confirmatory Resolution by the Council and the grant of the

special exception by the BZA make possible the development of the Solar

Project on the Property. Accordingly, we hold Remonstrators have standing to

appeal the Council’s Confirmatory Resolution. See Mammoth Solar, 196 N.E.3d

at 237 (decrease in property values expected to occur due to development of

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solar farm confers standing on property owners to appeal special exception

granted by BZA).

2. Definition of an ERA

[15] Remonstrators argue the trial court erroneously read the statutory definition of

an ERA to include farmland and failed to properly consider the legislature’s

recent amendment of the statute defining an ERA. Interpretation of a statute is

a pure question of law that we review de novo. 3 Jones v. Lofton, 201 N.E.3d 676,

678 (Ind. Ct. App. 2022), trans. denied. Our goal when interpreting a statute is

to give effect to the legislature’s intent, and the best evidence of that intent is the

language of the statute itself. Id. If a statute is unambiguous, we must give it its

clear and plain meaning. Id. That parties disagree about the meaning does not

make a statute ambiguous. Southwest Allen Cnty. Fire Protection Dist. v. City of

Fort Wayne, 142 N.E.3d 946, 954 (Ind. Ct. App. 2020), trans. denied.

3

The parties disagree about what our standard of review should be. Remonstrators assert the Council’s

declaration of the ERA is a quasi-judicial action like a zoning board’s grant of a variance, (see Appellants’ Br.

at 7), while Appellees argue the grant of an ERA is a legislative action like the passage of any other

resolution. (See Council’s Br. at 11.) Because Remonstrators raise questions of law that we review de novo,

we need not determine the precise contours of the appellate standard of review to be applied to other types of

questions on appeal from a trial court’s confirmation of the designating body’s final action. Nevertheless, we

note that, unlike in appeals from a zoning board, trial courts are authorized to “hear evidence on the appeal”

from a council’s declaration of an ERA. Compare Burton v. Bd. of Zoning Appeals of Madison Cnty., 174 N.E.3d

202, 209 (Ind. Ct. App. 2021) (“A trial court and an appellate court both review the decision of a zoning

board with the same standard of review. A proceeding before a trial court or an appellate court is not a trial

de novo[.]”), trans. denied, with Ind. Code § 6-1.1-12.1-2.5(e) (“The court shall hear evidence on the appeal,

and may confirm the final action of the designating body or sustain the appeal.”). This distinction alone

suggests our standard of review from a trial court’s determination regarding a council’s resolution creating an

ERA would be distinct from our standard of review for a BZA’s grant of a special exception. See GKN Co. v.

Magness, 744 N.E.2d 397, 401 (Ind. 2001) (When “a trial court conducts an evidentiary hearing, we give its

factual findings and judgment deference.” However, when the trial court makes factual findings based on a

paper record, we give no deference to the trial court’s factual findings.).

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[16] Prior to July 1, 2022, an ERA was defined by statute as

[a]n area which is within the corporate limits of a city, town, or

county which has become undesirable for, or impossible of,

normal development and occupancy because of a lack of

development, cessation of growth, deterioration of improvements

or character of occupancy, age, obsolescence, substandard

buildings, or other factors which have impaired values or prevent

a normal development of property or use of property. The term

“economic revitalization area” also includes:

(A) any area where a facility or a group of facilities that are

technologically, economically, or energy obsolete are located and

where the obsolescence may lead to a decline in employment and

tax revenues; and

(B) a residentially distressed area, except as otherwise provided in

this chapter.

Ind. Code § 6-1.1-12.1-1(1) (2013).

[17] In the early months of 2022, Indiana’s legislature amended that statute by

adding a third subsection to statute that provides:

(C) an area of land classified as agricultural land for property tax

purposes that, as a condition of being designated as a

revitalization area, will be predominantly used for agricultural

purposes for a period specified by the designating body.

Ind. Code § 6-1.1-12.1-1(1) (2022). No modifications were made to the pre-

existing portions of the statute.

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[18] Remonstrators argue “the Amended ERA Statute creates a presumption that

the ERA statute governing this proceeding was intended to be changed to

include agricultural/farmland, where it was excluded before.” (Appellants’ Br.

at 11.) In support, Remonstrators quote an Indiana Supreme Court case that

states:

A fundamental rule of statutory construction is that an

amendment changing a prior statute indicates a legislative intent

that the meaning of the statute has changed. Such an

amendment raises the presumption that the legislature intended

to change the law unless it clearly appears that the amendment

was passed in order to express the original intent more clearly.

(Id.) (quoting United Nat. Ins. Co. v. DePrizio, 705 N.E.2d 455, 460 (Ind. 1999))

(emphasis added by Remonstrators).

[19] We take no issue with the statement of law quoted by Remonstrators. We do,

however, disagree with the inference that Remonstrators draw from the

statutory change that occurred. The trial court determined:

31. The amendment specifies that land that will continue to be

used for agricultural purposes can be designated as an ERA.

This language does not in any way suggest that the existing

language of Ind. Code § 6-1.1-12.1-1 excluded farm property

from being designated as an ERA for purposes of improvements

and other development.

(Appellants’ App. Vol. II at 28.) We agree. The legislature’s creation of a

category of ERA that “will be predominately used for agricultural purposes for

a period specified[,]” Ind. Code § 6-1.1-12.1-1(1) (2022), does not preclude the

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prior-existing definition of ERA from applying to farmland that will no longer

be used for agricultural purposes, presuming of course the land meets the prior-

existing definition provided in Indiana Code section 6-1.1-12.1-1(1) (2013).

[20] Remonstrators next argue that farmland that contains drainage tiling or

watering systems has been “improved” or “developed” in a manner that

precludes it from being designated an ERA. The statute’s controlling language

provides:

“Economic revitalization area” means an area which is within

the corporate limits of a city, town, or county which has become

undesirable for, or impossible of, normal development and

occupancy because of a lack of development, cessation of

growth, deterioration of improvements or character of

occupancy, age, obsolescence, substandard buildings, or other

factors which have impaired values or prevent a normal

development of property or use of property.

Id.

[21] We in no way underestimate the value and importance of farming as a hobby,

profession, or even sacred calling because it produces the food required to

sustain human life on this planet. Nevertheless, in the context of real property,

derivations of the terms “develop” and “improve” consistently refer to the

addition of buildings or structures to land. For example, “development” is: “1.

A substantial human-created change to improved or unimproved real estate,

including the construction of buildings or other structures. 2. An activity,

action, or alteration that changes undeveloped property into developed

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property.” BLACK’S LAW DICTIONARY “development” (10th ed. 2004). A

“developer” is a “person or company whose business is to buy land and then

either to build on it or to improve the existing buildings there.” Id. “developer”.

“Improved land” is “[l]and that has been developed; esp., land occupied by

buildings and structures.” Id. Moreover, the ERA statute itself indicates:

“Redevelopment” means the construction of new structures, in

economic revitalization areas, either: (A) on unimproved real

estate; or (B) on real estate upon which a prior existing structure

is demolished to allow for a new construction.

Ind. Code § 6-1.1-12.1-1(5) (2013). See also Ind. Code § 6-1.1-12.1-1(15) (2022)

(defining “[n]ew agricultural improvement” as a “term [that] includes a barn,

grain bin, or silo”). Based on these authorities, we cannot read “development”

or “improvement” in the ERA definition to include drainage tiling or watering

systems. Because the Property at issue was “undesirable for, or impossible of,

normal development and occupancy because of a lack of development,” Ind.

Code § 6-1.1-12.1-1(1) (2013), the Council committed no error of law when it

declared the Property an ERA and approved the tax abatement.

Conclusion

[22] Remonstrators had standing to appeal the Council’s declaration of an ERA and

grant of a tax abatement because the only development permitted in the ERA

zone was the Solar Project, which undisputed evidence indicated would

decrease Remonstrators’ property values. Nevertheless, as a matter of law, the

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farmland at issue met the definition required to be declared an ERA.

Accordingly, we affirm the judgment of the trial court.

[23] Affirmed.

Crone, J., and Weissmann, J., concur.

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