A local construction company is seeking a judge’s review of a recent decision by the Seymour Board of Zoning Appeals to deny a land use variance for property in the 2300 block of North State Road 11.

Smith Law Services filed the petition in Jackson Superior Court I last week on behalf of BP2 Construction of Seymour.

In the documents, attorney Jason Smith requests the court overturn the board’s December 2020 decision and grant the variance so BP2 can use the property to store and recycle earthen fill materials, such as dirt, stone and rock.

Smith claims members of the BZA were directed by the city’s legal counsel to deny the variance application.

A similar petition was filed in September 2020 after the Seymour Plan Commission and Seymour City Council denied BP2’s request to rezone the property.

Currently, the property is zoned C-1, neighborhood commercial district, which does not allow for outside storage or industrial uses.

The company contends both the BZA and the plan commission showed bias and prejudice in their votes, which prevented BP2 from having a fair and impartial hearing on the matter.

“BP2 has been the subject of slander, threats, ridicule and open abuses of power by various members of the Seymour Plan Commission, city council and board of zoning appeals,” Smith states in the petition.

He also said members of the public continued to make false statements during public meetings that BP2 had “acted in illegal ways and somehow refused to honor an order from the city.”

Smith said BP2 has provided enough evidence to meet all of the city’s criteria for granting the variance. Those five criteria are:

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

Use and value of the area adjacent to the property will not be affected in a substantially adverse manner.

Need for the variance arises from some condition peculiar to the property.

Strict application of the terms of the zoning ordinance will constitute an unnecessary hardship if applied.

It does not interfere substantially with the city’s comprehensive plan.

Neighbors to the property disagree, however, and publicly have cited concerns and fears about dust, noise, environmental contamination and impact on their homes’ value and resell potential.

BP2 purchased the 14-acre property just north of city limits in 2017 and identified it as a good location for warehousing and recycling of natural fill material.

In the petition, Smith emphasizes the property isn’t suited for any commercial business “as is” and would require a significant investment to utilize for anything else.

“The ground is currently too low to be used or developed for any C-1 zoned purpose, thereby creating a financial barrier to the use of the land for commercial purposes,” Smith said.

During 2018 and 2019, BP2 worked on building up a portion of the property and created a 15-foot earthen berm along the front to block it from view of those traveling on State Road 11.

During public meetings, residents to the rear of the property said the berm does not block the view from their homes to which BP2 promised to increase and extend it as a condition of approval.

As for noise, Smith said the operation of the crushing machine produces less noise than traffic or a running lawnmower. That crushing only would take place a few days a month during regular daytime working hours, Smith said.

The crushing machine has a built-in dust suppression system, which eliminates excessive dust and prevents it from entering the air and being carried to other properties, he added.

Indiana Department of Environmental Management declared a portion of the parcel as a protected wetland, and BP2 agreed to correct any issues development may create and remove concrete and other fill material that had been dumped on the property by a previous owner.

In further efforts to protect the wetland, BP2 agreed to plant some 900 trees and build a retention pond for drainage.

Smith said BP2 is trying to fill a need in the community for a place contractors can take and recycle natural materials.

“Seymour and Jackson County are both in need … due to the area’s fill (sites) approaching capacity,” Smith said.

He also said surrounding real estate values have increased substantially since BP2 purchased and began developing the property.

“The use of the property for the requested purpose was the best use and allowed it to be more easily developed and used for an environmentally friendly purpose needed by the community,” he said.