ATTORNEY FOR APPELLANTS: ATTORNEY FOR APPELLEES:

TERRY K. HIESTAND CHARLES F.G. PARKINSON

Hiestand Law Office Harris Welsh & Lukmann

Chesterton, Indiana Chesterton, Indiana

IN THE

COURT OF APPEALS OF INDIANA

JOB STEEL CORP. and LISCO, INC. )

)

Appellants-Petitioners, )

)

 vs. )

) No. 64A05-1205-PL-245

BOARD OF ZONING APPEALS OF )

THE TOWN OF BURNS HARBOR )

and THE PLAN COMMISSION OF )

THE TOWN OF BURNS HARBOR, )

)

Appellees-Respondents. )

APPEAL FROM THE PORTER SUPERIOR COURT

The Honorable Mary R. Harper, Judge

Cause No. 64D05-0802-PL-1773

December 31, 2012

MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge 

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of 

establishing the defense of res judicata, 

collateral estoppel, or the law of the case.
2

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.

Facts and Procedural History

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:

Any land use with or without buildings for, but not limited to: parking, 

storage, maintenance, fuel sales, food service or transfer station for 

commercial trucks, tractors, truck trailers, and other commercial vehicles.

Appellant’s App. p. 230. A truck terminal may be operated in a C-2 zone if a special 

exception is granted. 
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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 
4

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 
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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. 

Standard of Review

When we review a zoning board’s decision, our court and the trial court are bound 

by the same standard. Midwest Minerals Inc. v. Bd. of Zoning Appeals of Area Plan 

Com’n of Vigo County, 880 N.E.2d 1264, 1268 (Ind. Ct. App. 2008) (citing Scott v. 

Marshall County Bd. of Zoning Appeals, 696 N.E.2d 884, 885 (Ind. Ct. App. 1998)), 

trans. denied. We presume the determination of the board, an administrative agency with 

expertise in zoning matters, is correct. Id. Therefore, we will reverse only if the board’s 

decision is arbitrary, capricious, or an abuse of discretion. Id. We will not reweigh the 

evidence or substitute our decision for that of the board. Id. Thus, Job Steele labors 

under a heavy burden in persuading our court to overturn the BZA’s decision. Id.

Moreover, “our review begins with the presumption that the BZA, due to its 

expertise in zoning matters, reached a correct decision.” Town of Munster Bd. of Zoning 

Appeals v. Abrinko, 905 N.E.2d 488, 491 (Ind. Ct. App. 2009). Because of that expertise, 

the BZA is required to issue findings tailored to address the specific facts presented to it. 

Id.; see also Ind. Code § 36-7-4-915 “These basic findings of fact are not sufficient to 
6

support the BZA’s ultimate findings if they are merely a general replication of the 

requirements of the ordinance at issue.” Abrinko, 905 N.E.2d at 492 (citations omitted). 

And “[f]indings are inadequate when they ‘are insufficient to permit intelligent appellate 

review.’” Burcham v. Metropolitan Bd. of Zoning Appeals Div. I of Marion County, 883 

N.E.2d 204, 214 (Ind. Ct. App. 2008) (quoting Stytle v. Angola Die Casting Co., 783 

N.E.2d 316, 322 (Ind. Ct. App. 2003), trans. denied).

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. See e.g. Ripley County Bd. Zoning Appeals v. 

Rumpke of Ind., Inc., 663 N.E.2d 198, 209-10 (Ind. Ct. App. 1996), trans. denied. In this 

case, the BZA’s findings are a mere recitation of the criteria in the zoning ordinance and 

whether the application for the special exception “will” or “will not” comply with those 

standards. Appellant’s App. pp. 102-03. However, the BZA did enter specific findings 

supporting its denial of Job Steele’s petitions for an outside storage variance and 

warehousing variance. Appellant’s App. pp. 100-02; 104-05. Because outside storage 

and warehousing are essential operations of a truck terminal and the same reasons 

expressed in those findings were discussed during the Board’s review of the application 

for special exception, we conclude that the record contains findings in this case that are 

sufficient to permit meaningful appellate review. 

I. Special Exception

“[A] special exception is a use permitted under the zoning ordinance upon the 

showing of certain statutory criteria[.]” S&S Enters., Inc. v. Marion County Bd. of 
7

Zoning Appeals, 788 N.E.2d 485, 490 (Ind. Ct. App. 2003), trans. denied; see also 

Appellant’s App. p. 279 (defining special exceptions in the Town’s zoning ordinance as 

“those uses of land which are essentially compatible with the uses permitted in a 

particular zoning district” . . . but that “possess characteristics or locational qualities 

which require individual review and restriction in order to avoid incompatibility with the 

surrounding area, public services and facilities, and adjacent uses of land”). Generally, 

the BZA must grant a special exception once the petitioner shows compliance with the 

relevant statutory criteria. S&S Enters., 788 N.E.2d at 490.

However, . . . while some special exception ordinances are regulatory in 

nature and require an applicant to show compliance with certain regulatory 

requirements (e.g. structural specifications), providing the zoning board 

with no discretion, some special exception ordinances provide a zoning 

board with a discernable amount of discretion (e.g. those which require an 

applicant to show that its proposed use will not injure the public health, 

welfare, or morals). [The applicant’s] position that a board of zoning 

appeals must grant a special exception upon the applicant’s submission of 

substantial evidence of compliance with the relevant criteria is true only as 

to ordinances falling within the former category. In other words, when the 

zoning ordinance provides the board of zoning appeals with a discernable 

amount of discretion, the board is entitled, and may even be required by the 

ordinance, to exercise its discretion. When this is the case, the board is 

entitled to determine whether an applicant has demonstrated that its 

proposed use will comply with the relevant statutory requirements.

Midwest Minerals Inc., 880 N.E.2d at 1268 (quoting Crooked Creek Conservation & Gun 

Club v. Hamilton County N. Bd. of Zoning Appeals, 677 N.E.2d 544, 547-48 (Ind. Ct. 

App. 1997), trans. denied).

The zoning ordinance at issue in this appeal confers upon the BZA a significant 

amount of discretion. Specifically, it provides:
8

The BZA shall review the particular circumstances of the Special Exception 

request under consideration in terms of the following standards, and 

approve a Special Exception only upon a finding of compliance with each 

of the following standards established elsewhere in this Chapter.

1. The Special Exception shall be designed, constructed, operated and 

maintained in a manner harmonious with the character of adjacent property 

and the surrounding area.

2. The Special Exception shall not inappropriately change the essential 

character of the surrounding area.

3. The Special Exception shall not interfere with the general enjoyment of 

adjacent property.

4. The Special Exception shall represent an improvement to the use of 

character of the property under consideration and the surrounding area in 

general, yet also be in keeping with the natural environment of the site.

5. The Special Exception shall not 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.

6. The Special Exception shall be adequately served by essential public 

facilities and services, or it shall be demonstrated that the person 

responsible for the proposed Special Exception shall be able to continually 

provide adequately for the services and facilities deemed essential to the 

special use under consideration.

7. The Special Exception shall not place demands on public services and 

facilities in excess of available capacity.

8. The Special Exception shall be consistent with the intent and purpose of 

this Chapter and the objectives of any currently adopted Comprehensive 

Plan.

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. See Midwest Minerals Inc., 880 N.E.2d at 1269. 

Job Steele bore the burden of satisfying the relevant criteria for a special exception. 

See id. Therefore, our court has been “cautious to avoid imposing upon remonstrators an 

obligation to come forward with evidence contradicting that submitted by an applicant.” 
9

Id. Neither those opposed to Job Steele’s application, nor the BZA, were required to 

negate Job Steele’s case. See id.

“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.” Id. However, in this case, the BZA denied Job 

Steele’s application for a special exception, at least in part, based upon evidence 

presented by the remonstrators; therefore, we must determine whether the BZA’s 

decision was based upon substantial evidence. See id.

When determining whether an administrative decision is supported by 

substantial evidence, the receiving court must determine from the entire 

record whether the agency’s decision lacks a reasonably sound evidentiary 

basis. Thus, we have noted that evidence will be considered substantial if 

it is more than a scintilla and less than a preponderance. In other words, 

substantial evidence is such relevant evidence as a reasonable mind might 

accept as adequate to support a conclusion.

Id. (internal citations omitted).

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
10

“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.” See Appellant’s App. pp. 102-03, 126-35, 280-81. The 

BZA’s conclusions concerning the zoning criteria are supported by the following 

substantial evidence. 

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 
11

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.1 

Consequently, the BZA’s decision to deny Job Steele’s application for a special 

exception was not arbitrary, capricious, or an abuse of discretion.

 1 Job Steele also argues that the BZA and trial court erroneously interpreted the definition of a “truck 

terminal” in the Town’s zoning ordinance. Specifically, Job Steele argues that the BZA and trial court 

rendered the term “storage” in that definition meaningless by concluding that the term did not include 

warehousing and outside storage. Because we affirm the BZA’s denial of Job Steele’s application for a 

special exception, we need not consider that issue. 
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II. Equal Protection

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.” Id. at 14.

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.”

2

 Like all citizens, 

property owners, and business owners in the Town, Job Steele was not denied the 

opportunity to seek a special exception and variances to the Town’s zoning laws. Job 

Steele does not claim that it was treated differently than any other person appearing 

before the BZA during the hearings held on its application for a special exception. Job 

Steele also does not allege any violation of due process in the adjudication of its 

application. Job Steele alleges discrimination based simply on the fact that its application 

for a special exception was denied, and other individuals have successfully petitioned the 

 2 In Collins v. Day, our supreme court held that legislation that distinguishes between classes of people is 

constitutional if the disparate treatment is “reasonably related to inherent characteristics [that] distinguish 

the unequally treated classes” and if the preferential treatment is “uniformly applicable and equally 

available to all persons similarly situated.” 644 N.E.2d 72, 80 (Ind. 1994).
13

BZA for a special exception to operate similar trucking based businesses in the past. The 

mere fact that one property owner was denied a special exception or variance while 

others similarly situated were granted the exception or variance sought does not, in itself, 

establish that “the difference in result is due either to impermissible discrimination or to 

arbitrary action.” See Metropolitan Bd. of Zoning Appeals of Marion County v. 

McDonalds Corp., 489 N.E.2d 143, 144 (Ind. Ct. App. 1986) (citation omitted), trans. 

denied. 

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. Metropolitan Development Comm’n of Marion County v. Schroeder, 727 

N.E.2d 743, 753 (Ind. Ct. App. 2000) (citing Board of Zoning Appeals v. Leisz, 702 

N.E.2d 1026, 1028 (Ind. 1998)), trans. denied. Because there was no physical invasion of 

Job Steele’s property, we must only determine if the regulations deny all economically 

beneficial use of the property. See id. Job Steele has not established that the denial of its 

application for a special exception and variances prevents it from using the property for 

any reasonable purpose, which would deny all economically beneficial use of the 

property. There are many permitted uses listed in the zoning ordinance for property 

situated in a C-2 zone, and the property may still be used to operate a truck repair 

business, which exception was granted in 1980 and continues to remain with the property 

today. 
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Conclusion

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.