Exhibit A

What is now known as Indianapolis Terry Airport in Union Township came into existence in November of 1957 when David and Harmon Campbell made an Application for Site Approval to the Aeronautics Commission for the State of Indiana. Approval was given by the Aeronautics Commission on November 21, 1958 for an Airport, Class A-3 at that site. This facility was upgraded and further approval was given on August 23, 1960, when the improvements that had been planned in 1957 were completed. Prior to making application with the Aeronautics Commission it appears that Harmon Campbell presented plans for the new field to the Boone County Commissioners, which was to be opened for operation the following summer. An article in the Saturday, November 23, 1957, edition of the Lebanon Reporter ran a headline that indicated “New Boone Airfield Planned at Big Springs.” The Airport was going to be named Terry Field after Terry Campbell, the deceased son of a pilot David Campbell. The original Airport comprised of two hundred-seven (207) acres and is also the property where the proposed Montgomery Aviation, Inc. hangar, which gives rise to this proceeding, is now being built.

The newspaper article went on to say “Harmon Campbell appeared before the Boone County Commissioners several months ago and presented plans for the new field, which will be opened for limited use next summer. The Commissioners told him that they welcomed the project.” Thereafter, Mr. Campbell applied for and received approval from the Aeronautics Commission for the State of Indiana.

It is important to note that at the time Terry Field came into existence, the Boone County Commissioners had not yet established a Plan Commission or a Board of Zoning Appeals. On January 11, 1958 the Board of Commissioners adopted Ordinance One-1958, which was an Ordinance for the Establishment of a County Plan Commission for the County of Boone, Indiana. Thereafter, on the 24th day of February, 1958, the Commissioners enacted Ordinance Three-1958, creating the Board of Zoning Appeals for Boone County. At the time, no master plan had been completed, zoning maps established or any of the infrastructure that would allow a Plan Commission or a Board of Zoning Appeals to discharge its duties and responsibilities. On February 10, 1958, the Commissioners entered into an agreement with Metropolitan Planners, Inc. to move forward with the establishment of proposed zoning ordinances, master plan and zone maps.

On June 16, 1959, the Board of Commissioners adopted the Zoning Ordinance of Boone County, 1959. Airports, although undefined, were permitted in all districts as Special Exceptions except for “A Residential.” (See “Materials Submitted in Support of an Improvement Location Permit to Montgomery Aviation, Inc.”, Exhibit “B”). Clearly and without equivocation, the original Terry Field was created and presented to the only body which may have had any jurisdiction over its use, the Boone County Commissioners. Although Commissioner minutes cannot be located evidencing the appearance of Mr. Campbell, it is important to note that, generally speaking, the minutes in 1957 were very limited in scope. It can easily be concluded that matters such as an appearance in front of the Commissioners were not otherwise reflected in their minutes. The applicable documents are shown in Exhibit “A” of the Material submitted in support of the issuance of this permit. In 1965, the Campbell family sold Terry Field to Ramon and Julia Van Sickle, the present owners. In 1966, Mr. Van Sickle was in the process of acquiring an adjacent forty (40) acres from Quentin Covert to remove trees from the Covert property. At the time, the Van Sickles, and Mr. Covert, filed a Petition for Special Exception for the purpose of extending the existing Airport. While the hand written minutes of the Board of Zoning Appeal meeting of November 7, 1966, indicate that the approval was granted for an “airport runway”, the notice of Public Hearing (See Exhibit “F”) published on October 26, 1966, shows that the request was actually made for a “Special Exception for the Purpose of Extending an Existing Airport.” It is clear from a reading of the notice and minutes, as supplemented by Mr. Van Sickle’s affidavit (Exhibit “H”), that special exception approval was given for not only the existing airport but also the proposed expansion onto the Covert land, subject only to obtaining State Aeronautic Board certification. Mr. Van Sickle’s Affidavit establishes that he was expanding and making safer the approach to the Terry Airport runway. He was also seeking from the Building Commissioner a building permit for the construction of a hangar to be located on the original Terry Airport property, not the Covert property. In fact, once approval for the special exception request was granted by the Board of Zoning Appeals, they ordered the Building Commissioner to issue the permit. In short, Mr. Van Sickle was issued a special exception approval for Terry Airport.
Thereafter, Terry Airport in its present form was born and all improvements to the Airport, either runway or buildings, complied with and were consistent with the uses allowed in the “Airport” classification, either by common definition or in the various Zoning Ordinances, both then and now. In other words, no structures were built or located on property then owned or subsequently acquired that did not fall within the Use definition of an Airport.

Montgomery Aviation, Inc. is the applicant for the improvement location permit (“ILP”) at issue. The entity has been in existence since being incorporated in October 1989 by Daniel Montgomery, its current President and principal shareholder. Montgomery conducts the day-to-day operations at the Airport under a long-term lease with the Van Sickles, who continue to hold title to the land. In addition, Montgomery also services airplanes, rents hangar space, sells jet fuel, and operates a private flight school at this site. It is in connection with the operation of the airport business that Montgomery applied for and was issued an ILP to construct a new office/hangar building on the property; the original site of the airport since its inception.

The Remonstrators are appealing the issuance of the ILP to Montgomery Aviation for the construction of a new hangar/office facility. The ILP was correctly and legally issued and currently remains in full force and effect. The interim Executive Director who issued the ILP, Cynthia Bowen, was later challenged as to its issuance and she refused to recall the permit or put a Stop Work Order on the project.

Simply put, the Remonstrators seem to be arguing that the issuance of the ILP is in violation of the Zoning Ordinance for reasons including:

a. At the time of November 7, 1966 Special Exception approval, only
a runway was approved by the Board of Zoning Appeals and hangars were not specifically approved; and
b. Terry Airport continues to operate as an illegal Non-Conforming Use.
The Remonstrators are clearly wrong on both counts.

As stated, Terry Airport came into existence in 1957 prior to the creation of a County Plan Commission, Board of Zoning Appeals, Zoning Ordinances or Zone Maps. It was a legally existing airport when it began and, after the adoption of the Zoning Ordinances, arguably became a legal Non-Conforming Use, defined in the current Zoning Ordinance as a “structure or use of land which were lawful before the ordinance was amended, but which would be prohibited, regulated or restricted under the terms of this ordinance or future amendments.” (Boone County Zoning Ordinance, pg.80). In 1966, when Mr. Van Sickle made application to expand the Airport by adding an adjacent forty (40) acres, an approval was given by the Boone County Board of Zoning Appeals. By its action in granting a special exception for the expansion of the airport in 1966, the Board of Zoning Appeals made the Airport a conforming use. At that time, as well as the present, an airport was a use permitted via the special exception process in the AG zoning district. The Airport was in compliance with the County Zoning Ordinance and legally in existence. Section X.C.5b(3) of the Zoning Ordinance, states:

“An existing use which is listed herein as a Special Exception,
and which is located in a District in which such Special
Exception may be permitted, is a Conforming Use. Any
Expansion of the Special Exception involving the enlargement
of the building, structure or land area devoted to such use shall
be subject to the procedure described in this section.”

Boone County Zoning Ordinance, pg.67. Clearly, by definition, the Indianapolis Terry Airport is a conforming use.

It is also important to remember that the November 7, 1966, minutes reflect that the approval was subject to Aeronautics Commission of Indiana certification. The certificate of approval from the Aeronautics Commission was given to Mr. Van Sickle not just for a “runway,” but for use of the entire Airport. For the Remonstrators to suggest that the only approval given in 1966 was for a runway and that the Board of Zoning Appeals did not give approval to the expansion of an existing Airport is simply misplaced and not supported by the Public Notice shown in the paper or by Mr. Van Sickle’s Sworn Affidavit. Also, it is important to note that no restrictions or limitations were placed on the Boards’ approval in 1966.

Moving forward, it is important to review the affidavits submitted by W. Bruce Stauffer and Jerry March, who for a collective, twenty-five (25) years held the position of Executive Directors of the Boone County Area Plan Commission. (See Exhibits “J” and “K”). In essence, each former Executive Director affirms that Mr. Van Sickle has done everything requested of him and relied on the information provided to him by Mr. March in proceeding with the expansions to the Terry Airport site. Kathaleen Clawson’s affidavit is also submitted to add additional credence to the March affidavit. (See Exhibit “I”).

The Remonstrators argument suggests that every time a building or other improvement is made to Terry Airport, the owner must file an Application for Special Exception to Seek Approval by the Boone County Board of Zoning Appeals. In the 1976 Zoning Ordinance, as well as the 1997 Amendment, an Airport-Heliport is defined as,

“Any area which is used or intended to be used for the taking
off and landing of aircraft and any appurtenance areas which
are used or intended to be used for Airport buildings or facilities,
including open spaces, taxiways and tie down areas.” (Emphasis added.)

An Airport is a permitted use in the Agricultural District subject to a Special Exception. The Uses which are permitted by Special Exception have a distinct legal significance under the law. In Boffo, et al v. Boone County Board of Zoning Appeals, 421 N.E.2d 1119 (Ind. Ct. App. 1981), the Court of Appeals distinguished between a variance and special exception as follows:

“This distinction between a Use Variance, which depends upon
a finding of the existence of unnecessary hardships in the
application of the Ordinance to a particular piece of property
by reason of conditions unique to that Property and an
Exception, which requires no such finding, but only a
finding that the conditions stated in the Ordinance have been
met, further emphasizes the nature of a Special Exception
or Conditional Use. The inclusion of the particular Use in the
Ordinance as one that is permitted under certain conditions,
is equivalent to a legislative finding that the prescribed Use
is one which is in harmony with the other Uses permitted
in the district, and, while a Variance can be granted only
with respect to a particular property as to which unnecessary
hardship is found, the Special Exception Permit must be
granted to any and all property which meets the conditions specified.”

Boffo, at 1124.

The fact that an airport is permitted by way of Special Exception in the Agricultural district is equivalent to a legislative finding that the use by Mr. Van Sickle of his property as an airport is one which is in harmony with the other uses permitted in the district. Mr. Van Sickle’s use of his property conforms to that which he was granted back in 1966 and the building of a hangar on the original Airport property is a permitted structure under the definition of an airport. The Remonstrators apparently argue that every time a building is built or an improvement is made to the Airport, a Special Exception must be obtained. The unintended result of such an illogical position, if adopted by the Board of Zoning Appeals, would be to create an absurdity in Planning and Zoning. By way of illustration, as with an airport, a landscape contractor is a permitted use in the Agricultural District, by way of Special Exception. A Landscape Contractor is defined in the Boone County Zoning Ordinance as,

“A person, partnership, or corporation involved in the
business of growing, storing, planting, installing, and otherwise
carrying for live trees, shrubs, flowers, etc.”

If the Remonstrators are right in their argument that every building or improvement that complies with the Airport definition must seek a Special Exception, then every time a Landscape Contractor plants a new row of trees he must seek a Special Exception for each row or tree planted. In reality, if a Landscape Contractor is given a Special Exception to locate his business in the AG Area, he can do so, so long as the improvements he makes to his property fall within the restrictions and definition of a Landscape Contractor. So too with an Airport operator.

Another example that the Board of Zoning Appeals deals with every month is the issue of single-family homes. The location of a single-family home in the Agricultural District is also a Permitted Use by way of Special Exception. If the Remonstrators are correct, every remodeling, expansion or construction of a single-family home or an accessory use in the Agricultural District is required to seek a Special Exception to do so. Of course, this is ridiculous and not how others are treated under the Boone County Zoning Ordinance. If someone is allowed a single-family residence in an Agricultural District they should be allowed to build, expand or provide accessory uses for their residential structure without having to seek a Special Exception so long as the essential nature of the approval obtained is not changed.

The cardinal rule of statutory construction is to ascertain the intent of the drafter by giving effect to the ordinary and plain meaning of the language used. Steuben County v. Family Development Ltd., 753 N.E.2d 693,701(Ind. Ct. App.). (emphasis added). Section X. C. 5(b)3 can easily be reconciled with the issuance of the ILP to Montgomery Aviation, Inc. The prior granting of a Special Exception to Terry Airport was done without substantive limitations, conditions or commitments. The only condition was the requirement to obtain Aeronautics Commission certification, which was done. Such an approval without substantive commitments is normally not the case under the current planning and development ordinances. Conditions of approval of the Special Exception use or structure are often imposed on an applicant in the form of deed restrictions which must run with the land. The Board of Zoning Appeals has the ability to impose such conditions subject to approval. If certain limitations on land or structure are imposed as a condition of Special Exception approval, any subsequent enlargement of the “buildings, structures or land devoted to such use” would ordinarily need further approval if such an enlargement would violate the conditions imposed and therefore the underlying Special Exception approval. This is simply not the case with Terry Airport nor with the other examples which were cited to illustrate our argument.

In the Steuben County case, the county plan department argued that a subsequent landfill operator needed both a Special Exception and an ILP to operate a landfill on an eighty acre parcel, despite the prior owner having been given a special exception for a landfill years earlier. The original landfill site approved consisted of approximately sixteen acres of actual use. Another entity later bought the balance of the ground for the purpose of putting another landfill on the acreage. The Court of Appeals held so long as the applicant obtained an ILP for the new landfill, a second Special Exception was not required since the property had already been approved for landfill use. The Court specifically held,

“[A]fter receiving the special exception and the ILP, Rowlinson
leased a portion of his property to Putnam, who constructed a
landfill and operated it until 1986. Now, Family
Development has purchased the remainder of Rowlinson’s
property and wants to construct a landfill. Because special
exceptions, once they are granted, remain an approved
Zoning classification, Rowlinson’s special exception remains viable,
and a landfill is a permissible use of Family Development property.
However, Rowlinson’s ILP was issued so that he could construct a
landfill, and Rowlinson, through his lessee Putnam, did just that.
Once Putnam’s landfill was complete, the change ‘in the condition
of the land’ was complete, and the ILP expired. Zoning Ordinance
§ 6.1(b) (1970). In order to construct a new landfill, Family
Development must apply for a new ILP.”

Steuben County, 753 N.E.2 d at 702.

In the instance of an Airport, Landscape Contractor or Single-Family Residence the issue is not whether they need to request a Special Exception, they do not. As with the case of Montgomery Aviation, Inc., it simply applied for an ILP for a hangar. When an ILP is required, the Office of the Area Plan Commission makes a determination as to whether the structure being built complies with the definition of use that was approved by way of Special Exception. In the case of an airport, a determination is made as to whether the building being constructed an “Airport Building or Facility” as opposed to another building or use that does not fit within the definition of an Airport. For instance, when Gary Schindler was the Executive Plan Director, an entity made an Application for a Building Permit to locate a building at Terry Airport, which, after examination by Gary Schindler, fit more properly in the definition of a manufacturing facility and not the definition of Airport. This ILP was properly denied. A hangar is clearly within the definition of Airport and therefore the ILP was legally and properly issued.

Although Montgomery Aviation believes a hangar certainly fits squarely within the definition of an airport, an argument can certainly be made that the ILP was correctly issued since a hangar is simply an accessory use in an airport classification. The issuance of an ILP for an accessory use does not need approval as a Special Exception or anything else by the Board of Zoning Appeals.
We assert that the arguments raised by the Remonstrators have no merit and are properly handled with the issuance or denial of the ILP.

As a further argument made in support of the issuance of the ILP, Montgomery Aviation and the Van Sickles respectfully assert the Board is estopped from declaring Indianapolis Terry Airport to be an illegal Non-Conforming Use or to be Non-Conforming in any respect. Terry Airport has been in existence since 1957 and until this appeal, no challenge to its legal existence or validity has been offered. The affidavits of Jerry March and Ray Van Sickle support the argument that Mr. Van Sickle complied with all the requests made by Mr. March or any other governmental agencies or authorities dealing with the legal or lawful existence of the Airport. It is also important to note that an Airport Master Plan sponsored by the Whitestown Board of Aviation Commissioners was filed with the Boone County Area Plan Commission in 1980. It depicts the type of improvements planned for the Airport, including the construction of the proposed new office/hangar building. This is not a situation where Mr. Van Sickle has been hiding from his duties and responsibilities and not keeping county officials aware of the Airport’s future plans for improvement and/or expansion. In fact, Mr. Van Sickle was granted an ILP in 1997 for a new hangar that did not come to fruition. No challenge was made to the issuance of this permit, nor was Mr. Van Sickle ever advised that further Board of Zoning Appeals approval was necessary.

Equitable estoppel applies if one party, through its representations or course of conduct, knowingly misleads or induces another party to believe and act upon his or her conduct in good faith and without knowledge of the facts. Mr. Van Sickle has kept in touch with the Boone County Area Plan Commission, through its Executive Director and certainly relied upon the information being provided to him by Mr. March and others and went about his business in good faith and without knowledge of the arguments now being raised.

This is not a case where others were misled or induced to believe certain actions were necessary and Mr. Van Sickle claims the benefit of these actions. Mr. Van Sickle has owned this Airport since 1965 and has solely and independently relied on the information provided to him by Mr. March and others, which, based upon the allegations now being raised by the Remonstrators, to his detriment. Ordinarily, equitable estoppel is seldom applied against governmental entities, but it may be applied if the public interest would be threatened by the government’s conduct. It is clear that this issue is one of high public interest, for reasons including the following:

1. The materials presented in support of the Executive Director’s issuance of the Building Permit contain hundreds of letters in support of Terry Airport, ranging from Senator Richard Lugar to people throughout the greater metropolitan area who believe in the importance of a general aviation airport.

2. Monies have been advanced by the federal and state government
through grant applications over an extended period of time. These monies were advanced based upon the legal existence and continued operation of Indianapolis Terry Airport.

3. In 2000, the Board of Commissioners of Boone County re-zoned the
Airport property to an I-1 Industrial Classification subject to deed restrictions, which provide for the continued operation of Indianapolis Terry Airport as an Airport and not as industrial facility. Airports are permitted uses by way of Special Exception in the Industrial District. Further, in 2001, upon favorable recommendation of the Boone County Area Plan Commission and adoption by the Board of Commissioners of Boone County, Indiana, the Terry Airport property was re-zoned back to AG Agricultural District which allows an Airport to be a permitted use by way of Special Exception. In other words, two (2) recent Boards of Boone County Commissioners, have re-zoned the Terry Airport property to categories which allow the Airport to operate as a permitted use, subject to Special Exception. Had they re-zoned the Airport property to a category not otherwise allowing a permitted use, Terry Airport would have become a Non-Conforming Use.

4. As the analysis of the Boone County Comprehensive Plan set out and
materials suggest, the general community and its legislators support the use and the expansion of Terry Airport and specifically discuss the importance of Terry Airport in the 1997 Comprehensive Plan.

5. The State of Indiana, through its Aeronautics Commission and more
recently Department of Transportation, Division of Aeronautics, continue to issue Certificates of Approval for the Indianapolis Terry Airport as a public-use airport.

6. The past designation of Terry Airport as a reliever for Indianapolis
International Airport shows the high public interest in the promotion of public-use airports.

In conclusion, state, federal and local governments have invested in the legal legitimacy of Indianapolis Terry Airport and its ability to function as a privately owned public-use airport. It is hard to envision an example where the public interest would be threatened more by the government’s conduct then denying a building permit for a hangar at Indianapolis Terry Airport on property that has been utilized as an airport since 1957.

Respectfully submitted,
Kent M. Frandsen
PARR RICHEY OBREMSKEY& MORTON

By: _____________________________________
Michael J. Andreoli
DONALDSON, ANDREOLI & TRUITT

Michael J. Andreoli
DONALDSON, ANDREOLI & TRUITT
1393 West Oak Street
Zionsville, Indiana 46077
(317) 873-6266

Kent M. Frandsen
PARR RICHEY OBREMSKEY & MORTON
225 West Main Street
P.O. Box 668
Lebanon, Indiana 46052
(765) 482-0110

Attorney for Ramon and Julia Van Sickle and
Attorney for Montgomery Aviation, Inc.
Ed Espey as Option Purchaser of Terry Airport

Attachments

1. Location, History, and Facilities

2. Improvement Location Permit (July 3, 1997)

3. Building Permit 97UN-5-305 (July 3, 1997)

4. Application for Site Approval (November 13, 1957)

5. Airport Inspector Report (November 21, 1957)

6. Aeronautics Commission of Indiana Memorandum (May 2, 1960)

7. Aeronautics Commission of Indiana Letter (August 23, 1960)

8. Application for Site Approval (August 16, 1960)

9. Airport Inspector Report (August 19, 1960)

10. Boone County Commissioners (January Term 1958/February Term 1958)