Zoning – West Robertson Road – For the Record

Uncategorized

Updated July 27, 2023

Summary:  The  Board of Zoning Appeals (BZA) approved a special exception which was rescinded.  The Area Plan Commission (APC) then recommended a  Zoning change that the commissioners and BZA approved allowing for an industrial area  in an area zoned residential.  Issues involving the dispute escalated into claims of defamation that were pursued in small claims court. 

July 27, 2023.   Appeal to the Indiana Court of Appeals by Sherrie Mitchell of a ruling in Brown County small claims court. On March 2, 2023, Brown County Small Claims Court Judge Frank Nardi, Magistrate, issued a judgement that Mitchell’s comments were false and defamation per se. A motion to Correct Errors in the ruling was filed by Mitchell on March 28, 2023. The motion was denied on April 18, 2023. Appeal Sherrie Mitchell 20230727115710073 – Extract: Chronological list of all the actions and lawsuits:

    • October 1, 2019, Sherrie Mitchell, appellant, filed a complaint with the Brown County Planning and Zoning department regarding the use of residential property for industrial use. Defendant’s exhibit C, page 34, volume 1, Exhibit Index.
    • October 21, 2019, Brown County Planning and Zoning Inspector mailed a letter to Christine Buccos, appellee, informing her of the potential violation of the Brown County Zoning Ordinance. Defendant’s exhibit D, page 35, Volume 1, Exhibit Index.
    • October 22, 2019, Brown County Planning Director mailed a letter to Christine Buccos, appellee, informing her of the 2 zoning districts (Forest Reserve and Industrial) in which industrial uses are permitted in Brown County per the Brown County Zoning Ordinance. Defendant’s exhibit F, page 47, Volume 1, Exhibit Index.
    • January 29, 2020, Brown County Board of Zoning Appeals (BZA) granted a special exception for an industrial use inside of a Residential District.
    • February 21, 2020, Mitchell, appellant, filed a motion for Judicial Review of the Board of Zoning Appeals (BZA) decision granting a special exception for an industrial use inside of a Residential District. Cause # 07C07-2002-PL-000066.
    • October 28, 2020, BZA held a public hearing retracting the special exception granted to Christine Buccos. The BZA did not have the authority to grant a special exception for an industrial use inside of a R2 District (Residential). Prohibited in the Brown County Indiana Zoning Ordinance. Defendant’s Exhibit G, page 48, Volume 1 Exhibit Index.
    • November 10, 2020, Mitchell filed a defamation lawsuit against Ashley Dersch, girlfriend of Christopher Buccos, son of Christine Buccos. Dersch posted on Facebook that Mitchell, appellant, was a convicted drug dealer and convicted drunk driver. Cause #07C01-2011-SC-000051
    • February 1, 2021, Judicial Review of the special exception granted to Christine Buccos was dismissed due to mootness. Complaint was corrected.
    • February 5, 2021, Mitchell, appellant, made Facebook post. Plaintiff’s exhibit 2, Volume 1, pages 4 through 9, Exhibit Index.
    • February 9, 2021, Christine Buccos, appellee, and son Christopher Buccos, each filed defamation lawsuits against Mitchell, appellant.
    • March 19, 2021, Mitchell won her defamation lawsuit against Ashley Dersch, Christopher Buccos’ girlfriend. Mitchell was considered a public figure by the court and had to prove malicious intent.
    • March 24, 2021, Brown County Area Planning Commission approved a rezoning of 3 acres inside of the Buccos’ 140 acres of residential property in a Residential District to Forest Reserve.
    • April 7, 2021, Brown County Commissioners approved editing the zoning maps to reflect the 3 acres approved by the Area Plan Commission from a Residential District to a Forest Reserve District on the Buccos property, previously approved by the BZA.
    • May 26, 2021, BZA approved a special exception for an industrial use on the rezoned 3 acres for Christine Buccos.

Jun 15, 2021. Commissioners sued over zoning decision By

May 26, 2021. BZA Meeting. Approved the special exception.

May 11, 2021. Legal Notice – Special Exception. The purpose of the meeting is to consider a petition by Christina Buccos for a Special Exception to allow General Industrial Use.

May 4, 2021.  Letter: Efforts against the local ‘good ole boy system’ by Sherrie Mitchell

  • Planning and zoning only enforces the ordinance when a complaint is filed. So here I am now, four closed lawsuits with my neighbors under my belt. I won them all. I have one pending against the county and am initiating one today (April 29). I’ve been defamed, and just last week had my mailbox destroyed. All because I took a stand against an injustice.

May 3, 2021. Petition for Judicial Review  20210503141100785 Mitchell Challenge to Commissioners Decision

APC recommended approval; Commissioners approved.  BZA has to approve a special exception.

Apr 6, 2021. ZONING BRIEFS: Buccos rezone gets positive vote;

  • … changing the zoning from residential to Forest Reserve (FR) would allow the business to continue with a special exception.  … Mitchell objected. She said the land’s use was more industrial than it was “forest reserve,” and cited the comprehensive plan which says that industrial uses should be discouraged in residential or not-compatible areas. She said this was a spot zone considering the amount of R2-zoned property in the area. She also complained about the volume of large trucks using West Robertson Road, which is where she lives.
  • The county commissioners will have to approve this change, as the APC’s vote was only a recommendation.
  • … because a special exception from the BZA also is needed, that would require the approval of a site plan, and the business would have to stick with that plan.

The property did not quality for a non-conforming use.

Nonconforming Uses, aka “Grandfathered Uses” in Zoning

  • The county zoning ordinance was passed in “1965”.  Property Deed identifies the transfer of property on Oct 29, 1964. The business identified as “Masonry and Digging Contractor.” (Information provided to the BZA – see below).
  • “A nonconforming use is generally defined as a land use or structure that was legal when established but does not conform to the standards of the current zoning ordinance.” The pre-existing structures cannot be expanded or enlarged without approval from the Planning Office.
  • A decision to grant a nonconforming use must be supported with evidence – such as a deed and documentation as to the type and nature of the business.

Feb 10, 2021. Judge dismisses complaint against logging business, county. By Sara Clifford.

    • 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.

Nov 3, 2020. BCD. Zoning dispute hangs over business By Sara Clifford

Oct 28, 2020.  Board of Zoning Appeals (BZA) Meeting.  The BZA board rescinded the decision they made at their Jan 29, 2000 meeting that allowed for a special exception for an industrial park. The BZA was provided with erroneous information and have acknowledged that it is illegal for an industrial park to operate inside an area zoned as residential (R2).

At the Jan 29, 2020 meeting, Christina Buccos went before the Board seeking a special exception for “general industrial” use to keep running a business that has been operating for two generations

Those in attendance supporting the Buccos’ were under the impression that the business could be “grandfathered” in or have the support of neighbors.  These are not legal options.  It is not unusual in the county for landowners to overlook zoning laws and ask for any approvals after the fact.

Guidance: INDIANA CITIZEN PLANNER’S GUIDE Part 2: Board of Zoning Appeals Basics
by KK Gerhart-Fritz, AICP.  Developmental Standards Variance Criteria per IC 36-7-4-918.5

  • (1) the approval will not be injurious to the public health, safety, morals,
    and general welfare of the community
  • (2) the use and value of the area adjacent to the property included in the
    a variance will not be affected in a substantially adverse manner
  • (3) the strict application of the terms of the zoning ordinance will result
    in practical difficulties in the use of the property

May 13, 2020.  Facebook – Brown County Matters, by Sherrie Mitchell. Judge Wertz denied the motion by the BZA attorney to dismiss.

Mar 11, 2020.  Facebook – Brown County Matters.  Notification of formal complaint to the APC and BZA.

Mar 7, 2020.  Facebook – Brown County Matters by Sherrie Mitchell, Volume of truck traffic.

Mar 4, 2020, Facebook – Brown County Matters  – Zoning Overlays – County GIS Map by Sherrie Mitchell. Response by Tom Reoch, GIS coordinator

  • Tim J. Clark  CULTURE: The “culture” in the county that has been expressed at county meetings has been that people can generally do what they want with their property. If there is a complaint, then property owners can apply for a special exception or a zoning change. This issue started with a complaint by a neighbor. Upon further analysis, it was determined that the law governing the approval of the exception may not have been followed. It was also discovered that Board member (s) were appointed to the BZA in violation of Indiana law. Given the formal complaint, the county judge will now review the process that supported the decision by the BZA which may require that they re-hear the request for a special exception and/or determine that a zoning change may be needed.
  • Tim J. Clark . The PROCESS: The County Comprehensive Plan (meets minimum standards required by law), provides the guidance for zoning. The commissioners are “accountable” for the process. The Planning Director and GIS Coordinator work for the commissioners. The “voters” are “responsible”  for the performance of the commissioners.

Mar 3, 2012. Democrat. Zoning decision under review; member resigns, By .  Sherrie and Benjamin Mitchell filed a petition for judicial review on Feb. 21, asking that the court clear the special exception which the BZA granted for the Christina Buccos property on Gartner Drive in January.

Mar 2, 2020. BZA Meeting. Statement of Fact 20200302185331927

Feb 29, 2020. Democrat.  COUNTY NEWS: Speed limit reduced; update on courthouse remodel  By Sara Clifford

  • An ordinance reducing the speed limit on West Robertson Road to 30 MPH was approved unanimously by the Brown County Commissioners on Feb. 19.
  • The speed limit will be reduced on West Robertson from State Road 135 North to Richardson Drive east and westbound. The speed limit maximum will be 30 MPH unless weather or other conditions require a lower maximum speed limit.

Feb 24, 2020. Democrat.  Business gets OK to keep operating in neighborhood By Sara Clifford

  • A Brown County family has been granted the proper zoning permission to keep running the business it’s been running on its property for at least two generations.

Christina Buccos went before the Brown County Board of Zoning Appeals on Jan. 29 seeking a special exception for “general industrial” use. Her family formed Shady Oaks Logging LLC six years ago, but a log yard has been housed on Buccos’ 130-plus acres since before the county had a zoning code, according to Planning Director Chris Ritzmann’s research. Buccos was asking for the special exception for 3 acres of her land, all of which is zoned FR (forest reserve).

Buccos’ land is on a private road, Gartner Drive, which abuts West Robertson Road.

Feb 21, 2020. Facebook – Brown County Matters, Legal Complaint.  Sherrie Mitchell.

  • My husband and I, represented by Michael Carmin (attorney in Bloomington), filed a request for a judicial review in the Brown County Circuit Court, Judge Mary Wertz. If you read the article in the Brown County Democrat a few weeks back, you are aware that the Brown County BZA approved a logging yard in a residential neighborhood. This is absurd. This sets a precedent for our county and would allow industrial parks in every residential neighborhood. This has to be stopped.

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