A Jackson County judge upheld a ruling by the Seymour Board of Zoning Appeals to deny a construction company’s petition for a land use variance.

Because of the ruling, BP2 Construction LLC will not be able to use a 14-acre property in the 2300 block of North State Road 11 to store and recycle earthen fill materials, like dirt, stone and rock.

The decision from Jackson Superior Court I Judge AmyMarie Travis came Monday after representatives and counsel with BP2 and the Seymour BZA presented arguments March 17.

BP2’s property is zoned as C-1, a neighborhood commercial district, and cannot be used for outside storage or industrial uses.

The court affirmed the BZA’s findings of facts, and the BZA said it made its ruling based on five criteria:

The approval will not be injurious to the public health, safety, morals and general welfare of the community

The use and value of the area adjacent to the property included in the variance will not be affected in a substantially adverse manner

The need for the variance arises from some condition peculiar to the property involved

Strict application of the terms of the zoning ordinance will constitute an unnecessary hardship if applied to the property for which the variance is sought

The approval does not interfere substantially with the comprehensive plan adopted by the Seymour Plan Commission and Seymour City Council

Indiana Code says all of those elements must be met for the variance to be approved, and the BZA concluded the petitioner, BP2, had not met the statutory requirements necessary to grant the land use petition.

The BZA said BP2 had not met the requirements of the criteria, included concerns from five remonstrators who spoke against the petition at a public hearing, no written evidence from the Indiana Department of Environmental Management and Indiana Department of Transportation that there was preapproval for the property to be used as a fill site, no written evidence from BP2 that there is a unique problem with the site, not enough adequate information to determine if an unnecessary hardship would result from strict application of the terms of the zoning ordinance and the likely interference of the city’s comprehensive plan.

BP2 has been seeking a variance for its State Road 11 property since September 2020 because the company felt it was a good location for the warehousing and recycling of natural fill material, according to court records.

A public hearing about the petition for the land use variance was held Dec. 15, 2020, and the petition was denied 4-0, including an abstaining vote.

The company filed a petition Jan. 15, 2021, to request the court to overturn the BZA’s decision to deny the land use variance. BP2 contended the BZA and plan commission showed bias and prejudice in their votes and weren’t able to have a fair and impartial hearing.

Since that time, the trial has been delayed due to Seymour lawyer Jason Smith withdrawing from the case due to a conflict of interest.

Attorneys Christopher Bloomer of Indianapolis and Brian Zaiger of Carmel represented BP2 in the case.

Indianapolis lawyers Chou-il Lee and Beth Copeland represented the BZA.

A cease and desist order was issued to BP2 on Dec. 2, 2021, to stop the continual storing and recycling of natural materials at the site.

Two emergency hearings were filed by the city of Seymour last year to stop BP2 from working at the site after the city’s code enforcement officer received complaints about the company continuing to dump materials on the property.