Connie Ehrlich v. Moss Creek Solar, LLC

FILED

Sep 07 2023, 11:11 am

CLERK

Indiana Supreme Court

Court of Appeals

and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Jason M. Kuchmay MOSS CREEK SOLAR, LLC

Snyder Morgan Federoff & Kuchmay, Gregory A. Neibarger

LLP Jessica L. Meek

Syracuse, IN Moncerrat Z. Alvarez

Indianapolis, IN

ATTORNEYS FOR APPELLEE

PULASKI COUNTY COUNCIL

Mark J. Crandley

Barnes & Thornburg LLP

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Connie Ehrlich, et al., September 7, 2023

Appellant-Defendant, Court of Appeals Case No.

22A-PL-1732

v. Appeal from the Pulaski Superior

Court

Moss Creek Solar, LLC, and the The Honorable Jaime M. Oss

Pulaski County Council, Special Judge

Appellee-Plaintiff Trial Court Cause No.

66-D01-2201-PL-2

Opinion by Judge May

Judges Crone and Weissmann concur.

May, Judge.

Court of Appeals of Indiana | Opinion 22A-PL-1732 | September 7, 2023 Page 1 of 11

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

order confirming a resolution by the Pulaski County Council (“the Council”)

that created an Economic Revitalization Area (“ERA”) and approved a tax

abatement for a proposed commercial solar development by Moss Creek Solar,

LLC (“Moss Creek”). Remonstrators challenge whether productive farmland

improved with tiling and irrigation systems can qualify as an ERA and whether

the legislature’s recent amendment of the statute defining an ERA to include a

definition specific to farmland creates a presumption that farmland was not

permitted to be declared an ERA under the version of the statute in effect when

the Council created the ERA. Moss Creek and the Council (hereinafter

“Appellees”) 1 cross-appeal to challenge whether Remonstrators have standing

to challenge the Council’s Confirmatory Resolution. We hold Remonstrators

have standing but their legal arguments regarding the statute fail, and we

accordingly affirm.

Facts and Procedural History

[2] Moss Creek seeks to develop a commercial solar-power facility (“the Facility”)

in Pulaski County near high-tension electrical lines. To obtain land for the

Facility’s development, Moss Creek leased land (“the Land”) from various

property owners. The Land is zoned agricultural, has tiling and irrigation

1

On November 17, 2022, the Council filed notice that it “joins in the Brief of Appellee filed by its Co-

Appellee Moss Creek Solar, LLC.”

Court of Appeals of Indiana | Opinion 22A-PL-1732 | September 7, 2023 Page 2 of 11

systems, and has been used for the growing of crops. Moss Creek applied for

and obtained a special exception from the Pulaski County Board of Zoning

Appeals (“BZA”) for the construction of the Facility.

[3] Moss Creek sought to have the Land designated an ERA so that Moss Creek

could receive tax abatement for the Facility’s development. On October 11,

2021, the Council enacted Resolution No. 2021-11, which was a Preliminary

Resolution to establish the Land as an ERA. The Resolution set the matter for

public hearing. Remonstrators are landowners in Pulaski County who

appeared at the public hearing and filed written remonstrances to Moss Creek’s

request. At the end of the public hearing on January 10, 2022, the Council

approved Pulaski County Resolution #2022-02, which was a Confirmatory

Resolution that established the Land as an ERA and granted a tax abatement

for the construction of the Facility.

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

Pulaski Superior Court challenging the Confirmatory Resolution. After

appointment of a Special Judge, the parties filed briefs and the trial court held

oral argument on June 1, 2022. 2 On June 22, 2022, the Pulaski Superior Court

denied Remonstrators’ Petition for Review in an order that did not include

findings or conclusions.

2

None of the parties submitted additional evidence as permitted by Indiana Code section 6-1.1-12.1-2.5(e).

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Discussion and Decision

1. Standing

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

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

Inc. 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).

[6] 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

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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.

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

citation and quotation marks omitted).

Remonstrators assert they are aggrieved by the Council’s decision because the

building of the Facility will decrease the value of their properties, which are

located adjacent to or near the Land. 3 In support, they note the study attached

to their petition for judicial review that indicates property values around solar

farms decrease. Appellees do not challenge that property values will decrease,

but instead argue the decrease in property values is not a “direct injury” of the

ERA declaration and tax abatement, but rather a product of the decision of the

BZA granting a special exception for the Facility, and as such is insufficient to

confer standing under Solarize Indiana, Inc. v. Southern Indiana Gas and Electric

Co., 182 N.E.3d 212 (2022) (standing requires a “‘direct injury’ [which] is ‘[a]n

injury resulting directly from a particular cause, without any intervening

3

Remonstrators also allege the Council’s Confirmatory Resolution injures them by causing “a loss of jobs in

the county, loss of income in the county, and other detrimental effects in the county[.]” (Appellants’ Br. at 7

n.1.) Because those injuries will be borne by the community generally, they do not constitute the type of

individualized special injury required to confer standing. 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.

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causes’”) (quoting Black’s Law Dictionary (11th ed. 2019)). 4 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 Facility. The Confirmatory

Resolution is subtitled “(MOSS CREEK SOLAR PROJECT)” (Appellants’

App. Vol. 2 at 62) (format in original), and provides real property and personal

property tax deductions only to “Moss Creek.” (Id. at 65.) Thus, it seems clear

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

Facility as was any decision of the BZA. Both this Confirmatory Resolution by

the Council and a grant of a special exception by the BZA make possible the

development of the Facility on the Land. 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 solar farm confers standing on property owners to appeal

special exception granted by BZA).

4

We also 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 by the Remonstrators herein are no less direct than if the Remonstrators had

appealed the BZA’s grant of a special exception that would permit the building of the Facility. See, e.g.,

Mammoth Solar, 196 N.E.3d at 237 (decrease in property values confers standing on property owners).

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2. Statutory Construction

[7] Remonstrators argue the statutory definition of an ERA does not include

farmland, especially in light of the legislature’s recent amendment of that

statute. Interpretation of a statute is a pure question of law that we review de

novo. 5 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.

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

5

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. (See Moss Creek Br. at 11.) Because

Remonstrators raise questions of law that we review de novo, (see Appellants’ Reply Br. at 11) (“the crux of

this appeal is a legal issue”), 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.).

Court of Appeals of Indiana | Opinion 22A-PL-1732 | September 7, 2023 Page 7 of 11

[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).

[9] 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). The legislature did not make any

modifications to the pre-existing portions of the statute.

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

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

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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).

[11] 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 legislature’s creation of a category of ERA

for land 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 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).

[12] Remonstrators also 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:

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“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.

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

profession, or even sacred calling because it produces 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.” 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.

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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 Land 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 Land an ERA and approved the tax abatement.

Conclusion

[14] Because the building of the Facility would decrease Remonstrators’ property

values, Remonstrators had standing to appeal the Council’s declaration of an

ERA and grant of a tax abatement to Moss Creek. Nevertheless, as a matter of

law, the farmland at issue met the definition of land that was subject to being

declared an ERA. Accordingly, we affirm the trial court’s judgment upholding

the Council’s Confirmatory Resolution.

[15] Affirmed.

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

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