Brown Circuit Court has denied a neighbor’s request to stop a logging business from operating, as well as a request to have the county pay her attorney fees.
Sherrie Mitchell had filed a petition for judicial review in February 2020, seeking the court’s opinion on whether or not the Brown County Board of Zoning Appeals acted properly in granting her neighbor, Christina Buccos, a special exception to continue operating her family’s logging business on a portion of their 200-plus acres near West Robertson Road.
Before the case made it to the court ruling stage, the BZA revoked the special exception for general industrial use that it had granted Buccos, but Mitchell filed paperwork to keep her petition in the court system. In November, Mitchell filed a motion “to ask the court to grant relief” in the form of an injunction against the logging business and the repayment of her court fees.
In court on Feb. 2, Judge Mary Wertz denied the injunction because the Buccos family was no longer a party to the lawsuit, having been dropped from the case in October; and because Mitchell had sued the Brown County Board of Zoning Appeals, not the Brown County Area Plan Commission or Director Chris Ritzmann. According to the zoning ordinance, the BZA is not directed to seek injunctions; Ritzmann and the APC attorney are charged with doing that.
Mitchell has been acting as her own attorney after cutting ties with her previous counsel, but she still had to pay a bill from that attorney’s work that totaled $2,900. She was asking for the county to reimburse her because she said the county “failed to admit the facts of this case,” so she believed she had no choice but to file a lawsuit.
David Schilling, attorney for the BZA, argued that Mitchell was not entitled to reimbursement because the county was not malicious or acting in bad faith when it assigned the wrong zoning to the Buccos family’s property. When Schilling and Ritzmann learned that a mistake had been made, they took “immediate steps” to correct it, he said. That resulted in the Buccos property losing the special exception in October 2020 which the BZA had given it in January, because a special exception for “general industrial use” is not available to properties zoned R2.
Mitchell had argued before the BZA that the planning office was making it seem like a parcel could have two different zoning classifications. Schilling said in court last week that Ritzmann and Mitchell both made errors, but the bottom line is that when the BZA voted to revoke the special exception it granted to the Buccoses because of the mistake, Mitchell received “relief.”
Mitchell argued in court that because an “industrial park” is not permitted in R2 zoning, the planning office was required to take action, and that’s why she was asking for an injunction.
Since their special exception was revoked, the Buccos family business has been allowed to continue operating while the planning office attempts to determine whether or the business existed before the zoning ordinance went into effect in the 1960s. There are several ways for a business to lose its ability to legally operate as a “prior nonconforming use” if certain changes to the business or property were made after the zoning ordinance went into effect.
As for the status of that determination, “The evidence continues to accrue,” Ritzmann said last week.
In denying Mitchell’s requests and dismissing the case, Wertz said that her ruling doesn’t limit Mitchell from pursuing her concerns “in another way,” but did not specify what those avenues could be.