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Tuesday, February 14, 2017

Ind. Decisions - Court of Appeals issues 5 opinion(s) today (and 11 NFP memorandum decision(s))

For publication opinions today (4):

In Flat Rock Wind, LLC v. Rush County Area Board of Zoning Appeals, et al. , a 26-page opinion, Judge Riley writes:

Appellant-Petitioner, Flat Rock Wind, LLC (Flat Rock), appeals the trial court’s decision, affirming Appellee-Respondent’s, Rush County Area Board of Zoning Appeals (BZA), grant of Flat Rock’s amended application to construct a commercial Wind Energy Conversion System, subject to the requirement to locate each industrial wind turbine at least 2,300 feet from a non-participating owner’s property line. We affirm.

Appellant raises two issues on appeal, which we restate as follows:

(1) Whether the trial court abused its discretion in permitting a group of landowners to intervene in these judicial review proceedings pursuant to Indiana Trial Rule 24(A)(2); and

(2) Whether the trial court erred in affirming the BZA’s zoning decision approving Flat Rock’s amended application for a special exception to construct a commercial Wind Energy Conversion System, subject to a setback requirement that was both greater and measured differently than the zoning ordinance’s minimum setback requirement. * * *

Based on the explicit language of the Zoning Ordinance, we conclude that the BZA did not exceed its authority by creating the Setback Condition, as well as a new method for measuring this Setback. In interpreting the Zoning Ordinance, the BZA viewed the siting setback as a “minimum” guideline, which was subject to “reasonable restrictions” to preserve the health and safety of the public. (Zoning Ordinance, Sec. 6.4.2; see also Zoning Ordinance 10.2). By evaluating Flat Rock’s proposed commercial WECS project as planned and the evidence and testimony received during the hearings, the BZA imposed the Setback Condition to promote the Zoning Ordinance’s and the WECS’ special exception’s stated purpose to promote the public interest. Because we find the BZA’s interpretation reasonable and consistent with the Zoning Ordinance itself, we must defer to the agency’s decision. See Hoosier Outdoor Advertising Corp., 844 N.E.2d at 163. Accordingly, as the BZA did not exceed its powers, we affirm the trial court’s decision.

CONCLUSION. Based on the foregoing, we hold that the trial court properly permitted Remonstrators to intervene pursuant to T.R. 24(A)(2); and the BZA did not exceed its power by interpreting the WECS special exception in the Zoning Ordinance.

In Citizens Action Coalition of Indiana, Inc., et al. v. Southern Indiana Gas and Electricity Company, et al., a 22-page opinion, Judge Altice writes:
Over three years ago, Southern Indiana Gas and Electric Company d/b/a Vectren Energy Delivery of Indiana, Inc. (Vectren) petitioned the Indiana Utility Regulatory Commission (IURC) for approval of projects to modify four of Vectren’s coal-powered generating stations to bring them into compliance with EPA emissions standards. Citizens Action Coalition of Indiana, Inc., Sierra Club, Inc., and Valley Watch, Inc. (collectively, Intervenors) intervened in the action and opposed the petition.

The IURC ultimately approved the petition, determining that Vectren’s proposed projects were reasonable and necessary under Ind. Code § 8-1-8.8-11. Upon Intervenors’ appeal in Citizens Action Coal. of Ind., Inc. v. S. Ind. Gas & Elec. Co. (Vectren I), 45 N.E.3d 483 (Ind. Ct. App. 2015), another panel of this court remanded with respect to two of the proposed projects, finding that I.C. § 8-1- 8.7-3 rather than I.C. § 8-1-8.8-11 applied. This court instructed the IURC to make findings regarding the statutory factors listed in I.C. § 8-1-8.7-3 and then issue or deny a certificate of public convenience and necessity (CPCN) for the two projects.

On remand, the IURC refused a request by Intervenors to reopen the record to consider new evidence. It also issued an order analyzing the nine statutory factors, concluding that public convenience and necessity will be served by the proposed clean coal technology projects, and issuing a CPCN to Vectren for the remaining projects. Intervenors appeal once again. They argue that the IURC’s findings are not adequately explained, are arbitrary and capricious, and are not supported by substantial evidence. Additionally, Intervenors argue that the IURC unlawfully denied the petition to reopen the record. We affirm.

In School City of Hammond District v. Chad Rueth, a 24-page opinion, Judge Riley writes:
Appellant-Defendant, School City of Hammond District (the District), appeals the trial court’s entry of judgment pursuant to a jury verdict in favor of Appellee-Plaintiff, Chad M. Rueth (Rueth), on his claims of defamation and blacklisting. We reverse. * * *

Based on the foregoing, we conclude that there is insufficient evidence to support a verdict for defamation or blacklisting, and, as such, the trial court abused its discretion by denying the District’s Motion to Correct Error.

In Termination: TF v. Indiana Department of Child Services, et al. , a 33-page opinion, Judge Brown writes:
T.F. (“Father”) appeals the involuntary termination of his parental rights with respect to his daughters A.F., D.F., and M.F. Father raises one issue which we revise and restate as whether the trial court abused its discretion in admitting evidence. We affirm.
In State of Indiana v. Sameer Girish Thakar, a 12-page opinion, Judge Barnes writes:
The State appeals the trial court’s dismissal of its charging information against Sameer Girish Thakar for one count of Class D felony dissemination of matter harmful to minors. We affirm.

The sole issue is whether the statutes criminalizing and defining dissemination of matter harmful to minors are unconstitutionally vague as applied to the alleged conduct in which Thakar engaged. * * *

In this appeal, the State makes no attempt to argue that the present case is in any way distinguishable from Salter. Rather, it urges this panel to disagree with the majority opinion in that case and to essentially adopt the dissenting position. We decline to do so and, instead, state our agreement with the Salter majority.

The State reiterates the dissent’s comment that the legislature did not intend to “authorize” or “encourage” sixteen year olds to have sex with adults by establishing sixteen as the age of consent for purposes of the criminal law. We respectfully disagree that the legislature did not “authorize” such conduct. By choosing not to subject adults to punishment for such activity, that is precisely what it has done. As for whether the legislature intended to “encourage” such conduct, it is not the government’s duty or prerogative to encourage any particular persons to have sex. We believe any conjecture on this point is not pertinent to our discussion.

The State also asserts that it is logical to distinguish between in-person sexual activity between an adult and a sixteen-year-old and the dissemination of sexual material from an adult to a sixteen year old, and to punish the second type of conduct but not the first. * * *

The State also suggests that the legislature’s failure to take any action to amend the statutes regarding dissemination of matter harmful to minors after Salter was decided somehow represents a rejection of Salter's holding. If anything, the legislature’s inaction points to the opposite. Judicial interpretation of a statute, accompanied by substantial legislative inaction for a considerable time, may be understood to signify the General Assembly’s acquiescence and agreement with the judicial interpretation. Fraley v. Minger, 829 N.E.2d 476, 492 (Ind. 2005). We need not place too much emphasis on the legislature’s inaction here, especially given that the Indiana Supreme Court has not weighed in on the issue. See id. Still, it has been almost eight years since Salter found these statutes to be unconstitutionally vague and ambiguous with respect to transmission of nude images by adults to sixteen year olds. Moreover, the majority expressly stated at the conclusion of its decision, “we realize our decision is sure to inspire opposition. But . . . our legislature has decided to protect sixteen- and seventeen-year-olds . . . in different ways than it protects other minors. Opposition to that policy choice should be voiced to the legislature, not to the courts.” Salter, 906 N.E.2d at 223. Despite these comments, no change has been made to the statutes aside from a general reclassification of the offense from a Class D to a Level 6 felony. * * *

[W]e conclude, as the majority did in Salter, that the statutes criminalizing and defining dissemination of matter harmful to a minor are unconstitutionally vague and ambiguous with respect to an adult transmitting sexual, non-obscene4 images to a sixteen- or seventeenyear-old, at least where that adult could not be prosecuted for child seduction. We construe the statutes as currently not permitting prosecution of such acts.

Conclusion. We reaffirm the majority holding in Salter. The trial court properly relied upon that holding in dismissing the charging information against Thakar. Affirmed.

NFP civil decisions today (4):

Coventry Court Townhomes v. Brittany D. Bigger (mem. dec.)

Daniel Fuquay v. Teresa Higginson, et al. (mem. dec.)

Cassie L. Carnahan v. Jason M. Carnahan (mem. dec.)

JG v. Review Board, et al. (mem. dec.)

NFP criminal decisions today (7):

AW v. State of Indiana (mem. dec.)

Keri Brewer v. State of Indiana (mem. dec.)

Tommy J. Rubalcada v. State of Indiana (mem. dec.)

Kenneth M. Jordan v. State of Indiana (mem. dec.)

Dax C. Rutherford v. State of Indiana (mem. dec.)

Billy E. Oliver v. State of Indiana (mem. dec.)

Albert Webb v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on February 14, 2017 11:56 AM
Posted to Ind. App.Ct. Decisions