SERVIES v. PARK LLC (2025)

MEMORANDUM DECISION

Case Summary

[1] Fornax Solar, LLC, represented by Soyoung Park (collectively, “Fornax”), sought a conditional use permit from the Tipton County Board of Zoning Appeals (“BZA”) to develop a solar park. The BZA granted Fornax's application. Sherman Servies, Whitney Huff, Karen Kesterson, Jim Kesterson, Jennifer Lee, Cory Kettler, William Wood, Patricia Tragesser, Rody Mula, and George Devendorf (collectively, “Remonstrators”) sought judicial review of the BZA's order, and Fornax filed a motion for summary judgment on the ground that the Remonstrators lacked standing to seek judicial review. The court granted that motion. The Remonstrators now appeal and raise the sole restated issue of whether the trial court erred when it entered summary judgment in favor of Fornax.¹ We reverse and remand for further proceedings.

Facts and Procedural History

[2] On October 2, 2023, Fornax submitted a Conditional Use Application to the BZA in order to develop a commercial solar energy park in an agricultural zoning district. The proposed park would be located on eighteen parcels with that district, totaling 1,556 acres. Fornax submitted lengthy documents in support of its proposal, and the BZA held a hearing on Fornax's application on December 6. Numerous individuals testified both for and against the project. Among those who testified against the proposal were the ten Remonstrators, who all own property near the proposed project, with all properties located within three miles.

[3] Servies ² testified that he had been told he would be contacted by someone who would explain the process, that things had happened “real fast,” and that a different solar farm looked “really ․ bad.” Appellants’ App. Vol. 2 at 53. Huff testified that she had unanswered questions about the project and that there were “major health and safety concerns as well about the byproducts of solar like heat, radon and EMFs.” Id. at 69. Kettler expressed concerns about potential drainage issues and fire protection. Karen Kesterson testified that she was “concerned with the traffic, dirt, dust, noise and whatever else comes along with having an access road” near her property. Id. at 74. Jim Kesterson testified about the solar panels looking “unaesthetic[.]” Id. at 76. Lee expressed concern about how the solar panels might affect nearby grazing horses and with the possible noise and groundwater contamination. Mula testified that he was worried that Fornax could file for bankruptcy or sell the project or that Fornax would become a public utility and cease paying taxes. Wood ³ stated that he was concerned about the components of the solar panels and with losing “farm ground as good as Tip[t]on[.]” Id. at 80. Tragesser testified that she and her family “haven't had a chance to find out about what all is going on” and requested that the project be “put off so more research could be done.” Id. at 87. And Devendorf testified that he questioned why the project would be placed in “prime farmland.” Id. at 90.

[4] In addition to the Remonstrators, Jennifer Richey, a local real estate agent, also testified on behalf of the Remonstrators. Richey provided the BZA with a binder of documents that contained “several studies, statements and statements from buyers, statements from brokers, and other documents,” but the BZA declined to accept it because it had not been timely submitted. Id. at 62. Richey then testified that, “to believe that property values will not be affected is an absolute insult to the adjoining landowners.” Id. at 59. She testified that “a commercial-scale solar panel project of this magnitude” would decrease property values “in the ballpark of 8 to 30 percent.” Id. She further quoted from a study that stated that homes near solar panels “will almost certainly see a decline in value.” Id. at 60.

[5] After the hearing, the BZA voted to approve Fornax's application. Thereafter, the Remonstrators filed a petition for judicial review of the BZA's decision and alleged that Fornax had “failed to satisfy the requirements for approval of the conditional use[.]” Id. at 36. Fornax filed a motion for summary judgment and asserted that the Remonstrators “lack[ed] standing” to seek judicial review because they were “not ‘aggrieved’ ” and because they “failed to produce relevant evidence of the particularized and specific harm required to confer standing.” Id. at 40-41. Rather, Fornax alleged that the Remonstrators had “presented nothing more than generalized and unsupported oral statements.” Id. at 41. In support of its motion, Fornax submitted a memorandum of law and its designation of evidence.

[6] The Remonstrators then filed a motion in opposition to summary judgment and alleged that they had been aggrieved by the BZA's decision because “Richey testified that the property values would be expected to drop between 8% and 30%.” Id. at 129. The Remonstrators then designated as evidence an affidavit of Richey (the “Richey Affidavit”) in which Richey stated that “buyers consider the view of a property being located near a solar project to be negatively impacted” and that “[l]arge-scale industrial solar projects can create a negative perception among potential buyers, which leads to a decreased demand and lower property values.” Id. at 93. She further stated that a property that was next to a different solar plant “sat on the market for 158 days and sold for $14,000 less than the original listing price.” Id. She then stated that it was her “professional opinion” that Fornax's proposed solar project “will negatively impact the property values of each of” the Remonstrators. Id. at 94. Fornax filed a reply in support of summary judgment. In addition to reiterating its arguments that the Remonstrators lacked standing, Fornax additionally asserted that the court could not consider the Richey Affidavit because it was “outside the certified record.” Appellees’ App. Vol. 3 at 27.

[7] Following a hearing at which the parties presented oral argument, the trial court entered its order on Fornax's motion for summary judgment. In particular, the court found that the Richey Affidavit was not admissible because it was “outside the board record” and because it “lack[ed] adequate foundation as being within her personal knowledge” and was “based on hearsay statements.” Appellants’ App. Vol. 2 at 20-21. The court further found that the Remonstrators were not aggrieved because they had “not shown more than generalized concerns about issues common to the community as a whole” and because Richey had “provided, at best, only speculative assertions as to decreased property value” and that she did not “submit any evidence of actual pecuniary harm.” Id. at 24. And the court found that the Remonstrators had failed to provide relevant evidence “to provide a basis for [them] to bring a judicial review challenge.” Id. at 27. Accordingly, the court concluded that the Remonstrators lacked standing to seek judicial review of the BZA's order, entered summary judgment in favor of Fornax, and dismissed the Remonstrators’ petition. This appeal ensued.

Discussion and Decision

[8] The Remonstrators appeal the trial court's entry of summary judgment in favor of Fornax. The Indiana Supreme Court has explained that

[w]e review summary judgment de novo, applying the same standard as the trial court: “Drawing all reasonable inferences in favor of ․ the non-moving parties, summary judgment is appropriate ‘if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ ” Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A fact is ‘material’ if its resolution would affect the outcome of the case, and an issue is ‘genuine’ if a trier of fact is required to resolve the parties’ differing accounts of the truth, or if the undisputed material facts support conflicting reasonable inferences.” Id. (internal citations omitted).

Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (omission original to Hughley).

[9] Here, the underlying facts are not disputed; the parties dispute only whether the undisputed facts demonstrate that the Remonstrators had standing as a matter of law to seek judicial review of the BZA's decision. The Remonstrators contend that the court erred when it determined that they lacked standing, while Fornax asserts that the court properly entered summary judgment in their favor because the Remonstrators lacked standing. As this Court has stated:

“Standing is a judicial doctrine that focuses on whether the complaining party is the proper party to invoke the trial court's jurisdiction.” Liberty Landowners Assoc., Inc. v. Porter Cty. Comm'rs, 913 N.E.2d 1245, 1250 (Ind. Ct. App. 2009), trans. denied. Standing must thus be analyzed before the merits of the case because if a person has no standing, then the Court has no jurisdiction to determine the merits. See id.

Pflugh v. Indianapolis Hist. Pres. Comm'n, 108 N.E.3d 904, 908 (Ind. Ct. App. 2022), trans. denied.

[10] Indiana Code Section 36-7-4-1603(a) (“Section 1603”) provides:

(a) The following have standing to obtain judicial review of a zoning decision:

(1) A person to whom the zoning decision is specifically directed.

(2) A person aggrieved by the zoning decision who participated in the board hearing that led to the decision, either:

(A) by appearing at the hearing in person, by agent, or by attorney and presenting relevant evidence; or

(B) by filing with the board a written statement setting forth any facts or opinions relating to the decision.

Because the BZA's decision was not specifically directed at any of the Remonstrators, they fall under subsection (a)(2), which requires that they be “aggrieved” by the decision and present relevant evidence in order to have standing to seek judicial review.

[11] To be “aggrieved, the petitioner must experience a ‘substantial grievance, a denial of some personal or property right or the imposition ․ of a burden or obligation.’ ” Bagnall v. Town of Beverly Shores, 726 N.E.2d 782, 786 (Ind. 2000) (quoting Union Twp. Residents Ass'n, Inc. v. Whitley Cnty. Redev. Comm'n, 536 N.E.2d 1044, 1045 (Ind. Ct. App. 1989)). “The board of zoning appeals's decision must infringe upon a legal right of the petitioner that will be ‘enlarged or diminished by the result of the appeal’ and the petitioner's resulting injury must be pecuniary in nature.” Id. (quoting Union Twp. Residents Ass'n, 536 N.E.2d at 1045). A petitioner must also demonstrate a special injury not common to the community as a whole. Id. (citing Robertson v. Bd. of Zoning Appeals, 699 N.E.2d 310, 315 (Ind. Ct. App. 1998)).

[12] On appeal, the parties first dispute whether the Remonstrators were “aggrieved” by the BZA's decision. The Remonstrators appear to concede that their testimonies at the BZA hearing were not sufficient to show that they were aggrieved because, as the trial court found, those testimonies were nothing “more than generalized concerns about issues common to the community as a whole.” Appellants’ App. Vol. 2 at 24. Rather, the Remonstrators contend that Richey's testimony at the hearing demonstrates that they will suffer a pecuniary injury. We agree.⁴

[13] In Mammoth Solar v. Ehrlich, Mammoth Solar submitted an application to construct a solar farm on over 4,500 acres in Pulaski County. 196 N.E.3d 221, 228 (Ind. Ct. App. 2022). The Pulaski County BZA scheduled a hearing on Mammoth Solar's application, and a licensed real estate agent testified that “rural homes would see a decline in value” and that “homes within sight of the solar panels would be the most negatively impacted.” Id. at 229. In addition, a real estate broker who had “conducted six months of research regarding the economic impact of a proposed solar farm in Madison County” tendered a report to that BZA. Id. at 229-30. The report “revealed a negative impact on property values,” including anywhere from a ten to twenty percent drop in value for homes three miles away to a complete loss of value for homes that are surrounded on three or four sides by the solar plant. Id. at 230. The BZA granted the application, and several petitioners sought judicial review. Mammoth Solar filed a motion for summary judgment on the ground that the petitioners lacked standing, which motion the court denied. The court then addressed the merits of the petition for judicial review and reversed the BZA's order.

[14] On appeal, Mammoth Solar again asserted that the petitioners had lacked standing to challenge the BZA's order. This Court concluded that the petitioners had standing because they had presented evidence that they “would suffer a pecuniary loss.” Id. at 237. In particular, this Court relied on the real estate agent's and real estate broker's written reports detailing that property values would decrease and concluded that the petitioners had “presented evidence that their property values will decrease if Mammoth Solar's [solar project] were to be constructed.” Id.

[15] And, in Sexton v. Jackson County Board of Zoning Appeals, this Court considered whether homeowners had standing to challenge a decision of the Jackson County BZA that granted a special exception for the creation and operation of a concentrated animal feeding operation. 884 N.E.2d 889 (Ind. Ct. App. 2008). After that BZA granted the application, some homeowners sought judicial review by way of a writ of certiorari. Id. at 892. The trial court denied that petition based on its conclusion that the homeowners lacked standing. Id.

[16] On appeal, this Court found that the homeowners had “presented evidence that they would suffer a pecuniary loss” if the application was granted. Id. at 893. To reach that conclusion, this Court relied on the testimony of the former township assessor, who testified that “the neighborhood value will have to be lowered from a good to a fair to a poor” and that he “wouldn't be surprised if [the home values] wouldn't drop 30 percent[.]” Id. (record citation omitted). As such, this Court concluded that the homeowners had presented sufficient evidence to show that they would suffer a pecuniary loss such that they had standing to challenge the BZA's decision.

[17] Similarly, here, the Remonstrators presented evidence that they would suffer a pecuniary injury if Fornax's application was granted. Specifically, Richey testified that “this commercial-scale solar project will 100 percent affect property values” and that “a commercial-scale solar panel project of this magnitude will absolutely decrease property values of adjoining landowners in the ballpark of 8 to 30 percent.” Appellants’ App. Vol. 2 at 59-60. She further testified, while quoting from a document, that rural homes “will almost certainly see a decline in value” with homes within sight of the panels being the “most negatively impacted.” Id. at 60. And she testified that the homes would have “a reduced pool of potential buyers.” Id. at 61.

[18] We acknowledge that Richey's testimony does not rise to the same level of detail or thoroughness as the evidence presented by the real estate professionals in Mammoth Solar. However, Richey's testimony is nonetheless sufficient to demonstrate that the Remonstrators will suffer a pecuniary loss because the value of their homes will decrease by eight to thirty percent. Because Remonstrators have demonstrated that they will suffer a pecuniary harm, they have established that they are “aggrieved.”

[19] Still, the trial court found, and Fornax argues, that the Remonstrators lack standing because they did not present relevant evidence at the hearing. Fornax asserts that Richey's testimony at the hearing “fell short of the kind of ‘relevant evidence’ required by” Section 1603. Appellees’ Br. at 29. Fornax maintains that Richey's testimony was merely “speculation and conjecture as to property values, aesthetics, and use and enjoyment of property.” Id. at 31.

[20] But, again, Richey testified that the homes would experience a decrease in value from eight to thirty percent. And while Fornax contends that her testimony is merely speculation, Richey is a local realtor, “serve[s] on the board of directors of [her] realtor association,” and “served on the Tipton County Council from 2013 to 2017.” Appellants’ App. Vol. 2 at 56. In other words, Richey's testimony did not consist of “unsupported statements” but was based on her professional experience in the local real estate market and her familiarity with Tipton County. Appellees’ Br. at 30. Richey's testimony constituted “relevant evidence” under Section 1603.

Conclusion

[21] Because the Remonstrators were aggrieved by the BZA's decision and because they presented relevant evidence in the form of Richey's testimony, the Remonstrators have standing to seek judicial review of the BZA's decision. As such, the trial court erred when it entered summary judgment in favor of Fornax. We therefore reverse the trial court's entry of summary judgment and remand with instructions for the court to reinstate the Remonstrators’ petition for judicial review and for proceedings on the merits of that petition.

[22] Reversed and remanded.

FOOTNOTES

1.   The BZA does not participate in this appeal.

2.   At the BZA hearing, Servies introduced himself as Skip, not Sherman.

3.   Wood identified himself as David, not William.

4.   Because Richey's testimony on its own is sufficient to demonstrate that the Remonstrators were aggrieved and thus had standing, we need not address the Remonstrators’ argument on appeal that the court erred when it excluded Richey's affidavit.

Bailey, Judge.

Vaidik, J., and DeBoer, J., concur.