MATHIAS, Judge.
Job Steele Corporation and Lisco Incorporated (collectively "Job Steele") appeal the Porter Superior Court's order affirming the Town of Burns Harbor's Plan Commission and Board of Zoning Appeals' (collectively "the BZA") denial of its application for a special exception to operate a truck terminal on its property, which is located in a commercial zoning district. Job Steele argues that the BZA's denial of its application for a special exception was arbitrary, capricious or an abuse of discretion, and that the denial also violated Job Steele's equal protection rights under the Indiana and United States Constitutions.
We affirm the BZA's denial of Job Steele's application for a special exception in all respects.
In 2007, Job Steele leased property from Lisco Incorporated located on U.S. Highway 20 in Burns Harbor, Indiana with the intent of operating a truck terminal. The property, which is located in a C-2 commercial zone, had previously housed a truck service and repair center. A special exception was granted for this use in 1980. Job Steele's proposed operation of the truck terminal would include dispatching, loading and unloading of trucks, outside storage and warehousing. The Town's zoning ordinance defines a truck terminal as:
Appellant's App. p. 230. A truck terminal may be operated in a C-2 zone if a special exception is granted.
After Job Steele was notified that operating a truck terminal on the property would require a special exception from the BZA, it filed an application requesting a special exception to allow the operation of a truck terminal. Job Steele also filed petitions for use variances for a warehousing facility and an outside storage facility. A public hearing was held on Job Steele's application on December 18, 2007. One remonstrator appeared at the hearing and expressed concerns about increased semi-truck traffic in the area.
The BZA continued the hearing until the Plan Commission could review the completed application and make a recommendation. On January 8, 2008, the Plan Commission completed a final review of Job Steele's application. After noting that the proposed uses would increase the amount of traffic in the vicinity of the property, specifically U.S. Highway 20, the Commission voted 6-1 to forward the special exception to the BZA with an unfavorable recommendation.
The BZA resumed its public hearing on Job Steele's application and variance petitions on January 22, 2008. A second remonstrator, a neighboring business owner, spoke at the hearing and expressed concern about the appearance of an outside storage yard adjacent to his recreational vehicle business. Ultimately, the BZA voted to deny the special exception for Job Steele's truck terminal by a 4-1 vote after finding that Job Steele failed to meet five of the eight standards required by the applicable zoning ordinance. The BZA determined that Job Steele's proposed use of the property was not consistent with the stated objectives of the Town's Comprehensive Plan, which includes developing a strong commercial core. Moreover, the BZA was concerned with increased truck traffic in an area that already suffers from traffic congestion. The BZA also voted unanimously to deny the variances for outside storage and for warehousing.
On February 21, 2008, Job Steele filed a Verified Petition for Writ of Certiorari in the Porter Superior Court, which included a count requesting damages for inverse condemnation. The parties filed cross-motions for summary judgment and a hearing was held on those motions on March 14, 2012. In April 13, 2012, the trial court issued an order granting the BZA's motion for summary judgment.
In its order, the trial court concluded that the BZA was justified in denying Job Steele's application for a special exception to operate a truck terminal in a C-2 zone because of 1) the BZA's valid concern over increased traffic congestion in an already congested area; 2) that having a storage facility would alter the character of the neighboring properties; and 3) that use of the property as a truck terminal "would not be `consistent with the intent and purpose of the zoning ordinance and the objectives of the Comprehensive Plan[.]'" Appellant's App. p. 13. The trial court also concluded that the BZA justifiably denied Job Steele's requested variances for outside storage and warehousing.
Finally, the trial court concluded that the BZA's refusal to grant Job Steele's application for a special exception and variances did not result in a taking of the property at issue. Specifically, the court observed that restricting the presence of industrial businesses in a commercial zone is reasonably related to the goal of maintaining the public health, safety, morals or general welfare. The court noted that a property owner is not necessarily entitled to the highest and best use of his property as long as a denial of the request for a special exception and/or variance would not prevent the property owner from using the property for any reasonable purpose. Because there are other permitted uses in a C-2 zoning district where the property is located, Job Steele was "unable to prove that no reasonable use can be made of the property absent the approval of a truck terminal." Appellant's App. p. 16.
Job Steele now appeals the trial court's order granting the BZA's motion for summary judgment.
When we review a zoning board's decision, our court and the trial court are bound by the same standard.
Moreover, "our review begins with the presumption that the BZA, due to its expertise in zoning matters, reached a correct decision."
In most cases, when the BZA enters general and conclusory findings the case will be remanded to the BZA for the entry of more specific findings to support its denial of the application for special exception.
"[A] special exception is a use permitted under the zoning ordinance upon the showing of certain statutory criteria[.]"
The zoning ordinance at issue in this appeal confers upon the BZA a significant amount of discretion. Specifically, it provides:
Appellant's App. pp. 280-81. These criteria lack absolute objective standards against which they can be measured, and therefore, involve discretionary decision making on the part of the BZA.
Job Steele bore the burden of satisfying the relevant criteria for a special exception.
"Because remonstrators need not affirmatively disprove an applicant's case, a board of zoning appeals may deny an application for a special exception on the grounds that an applicant has failed to carry its burden of proving compliance with the relevant statutory criteria regardless of whether the remonstrators present evidence to negate the existence of the enumerated factors."
In this case, the BZA determined that Job Steele's application for a special exception to operate a truck terminal failed to satisfy five of the eight criteria listed in the zoning ordinance. The BZA concluded that allowing operation of a truck terminal on the property 1) would not be "harmonious with the character of adjacent property and the surrounding area;" 2) would "inappropriately change the essential character of the surrounding area;" 3) would not "represent an improvement to the use of character of the property under consideration and the surrounding area in general;" 4) would be "hazardous to adjacent property, or involve uses, activities, materials or equipment which will be detrimental to the health, safety, or welfare of persons or property through the excessive production of traffic, noise, smoke, odor, fumes, or glare;" and 5) would not be "consistent with the intent and purpose of this Chapter and the objectives of any currently adopted Comprehensive Plan."
The property is located in a commercial C-2 zoning district and the industrial uses Job Steele contemplated are generally not permitted in C-2 districts. The general purpose of a C-2 zoning district is to create an area for the placement of businesses that meet the everyday shopping needs of the community. Operation of a truck terminal with accompanying warehousing and outside storage would be incongruous with neighboring retail businesses.
Specifically, the adjacent property owner operates a recreational vehicle dealership. Visible outside storage of steel coils would negatively affect the appearance of the area and the character of the neighboring commercial business. Also, operation of a truck terminal would require forklifts to transfer loads creating significant noise, which would likely disrupt nearby commercial business owners and their customers.
Substantial evidence also supports the BZA's concern that operation of a truck terminal on the property would create an additional traffic problem in an area that already suffers from traffic congestion. By its very nature, operation of a truck terminal would bring additional semi-tractors and trailers into the area adding to the existing problem of excessive truck traffic on U.S. Highway 20. It is also reasonable to conclude the entry and exit of trucks to and from Job Steele's property would be difficult given the existing truck congestion on the highway.
Moreover, the Town's comprehensive plan provides that industrial uses should be located where there is safe and convenient traffic access. And the goal of the comprehensive plan is to promote the redevelopment of a strong central commercial core, and Job Steele's proposed operation of a truck terminal is not consistent with that goal. The comprehensive plan also expresses the desire to improve and beautify major thoroughfares and expressways as entrances in the Town. The proposed use is inconsistent with that goal because the property is visible from both Highway 20 and Interstate 94.
In light of this evidence, we conclude that the BZA acted within its discretion when it denied Job Steele's application for a special exception to operate a truck terminal in a C-2 zoning district. Specifically, Job Steele did not meet its burden of proving that its proposed use satisfied all eight criteria listed in the Town's Zoning Ordinance.
Finally, Job Steel claims that the BZA violated its equal protection rights under Article I, Section 23 of the Indiana Constitution because the denial of its application for a special exception restricts the use for its property more than "the uses and privileges allowed for the surrounding properties[.]" Appellant's Br. at 13. Job Steele also asserts that the BZA's regulation of its property does not "promote public health, safety, morals or welfare, within the authorized police power of the state" and "such invasion of property rights comes within [the] ban of the Fourteenth Amendment to the United States Constitution and cannot be sustained."
Article 1, Section 23 of the Indiana Constitution provides that "[t]he General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens."
Finally, to the extent Job Steele argues that its constitutional rights were violated because of the BZA's regulation of its property, we observe that government units may regulate the use of property. However, if regulation goes too far, it will be recognized as a taking.
The BZA's decision to deny Job Steele's application for a special exception to operate a truck terminal was not arbitrary, capricious or an abuse of discretion. Moreover, Job Steele's claim that its constitutional rights were violated lacks evidentiary support and is unavailing
Affirmed.
KIRSCH, J., and MAY, J., concur.