BROWN COUNTY INDIANA v. Booe
| Decision Date | 21 May 2003 |
| Docket Number | No. 07A01-0206-CV-211.,07A01-0206-CV-211. |
| Parties | BROWN COUNTY INDIANA, Brown County Area Plan Commission and Brown County Area Board of Zoning Appeals, Appellants-Plaintiffs, v. John W. BOOE, Brown County Sawmill, Inc., John Weaver Booe Revocable Living Trust and Beckemeyer's Custom Millwork, Inc., Appellees-Defendants. |
| Court | Indiana Appellate Court |
David B. Schilling, Bloomington, IN, Attorney for Appellants.
James T. Roberts, Nashville, IN, Attorney for Appellees.
Brown County, the Brown County Area Plan Commission, and the Brown County Area Board of Zoning Appeals (collectively "Brown County") filed a complaint against John Booe, Brown County Sawmill, Inc., the John Weaver Booe Revocable Living Trust (collectively "Booe"), and Beckemeyer's Custom Millwork Inc. ("Beckemeyer") in Brown Circuit Court. In the complaint, Brown County alleged that Booe was operating a sawmill in a manner that violated both the zoning ordinance and the sawmill special exception granted to Booe in 1976. The complaint also alleged that Beckemeyer's custom millwork use of a tract of land purchased from Booe was not a use permitted by the zoning ordinance or by the 1976 sawmill special exception. In addition to a request for civil penalties, Brown County requested that the trial court enjoin Booe and Beckemeyer from continuing to use the property for industrial purposes.
Both Booe and Beckemeyer filed answers to the complaint asserting several affirmative defenses including estoppel and laches. Beckemeyer also filed a counterclaim for declaratory judgment requesting the trial court to issue a judgment declaring that his property is zoned industrial as defined by the zoning ordinance. A trial was held, and the trial court issued special findings of fact and conclusions of law finding in part that 1) Booe's use of the property as a sawmill has not changed since the special exception was granted; 2) Brown County is estopped from challenging Booe's industrial use of his property; 3) Brown County is estopped to deny Beckemeyer's use of his property for an industrial purpose; and 4) Beckemeyer was entitled to a declaratory judgment that his property is zoned industrial. Brown County appeals and raises several issues, which we consolidate and restate as:
I. Whether the trial court erred when it found that Brown County was estopped from challenging Booe's and Beckemeyer's industrial uses of their property;
II. Whether Brown County's approval of the Heritage Hills subdivision plat constituted a "de facto" rezoning of Beckemeyer's property;
III. Whether the trial court erred when it denied Brown County's Trial Rule 15(B) motion; and,
IV. Whether the trial court erred when it failed to grant Brown County relief on the issues it attempted to raise by filing the Trial Rule 15(B) motion.1
Finding that Brown County is estopped from challenging Booe's and Beckemeyer's current industrial uses of their property, but that approval of the subdivision plat did not constitute "de facto" rezoning of Beckemeyer's property, we affirm in part and reverse in part.2
Brown County adopted its zoning ordinance, including zoning maps, in 1965 and readopted it in 1989. The ordinance divided the unincorporated areas of Brown County into districts with differing zoning designations including industrial, forest reserve ("FR"), and residential 2 ("R-2"). Pursuant to the ordinance, any property located within 300 feet of a county road is zoned R-2. Also, under the ordinance, special exception uses may be granted subject to the primary use table, which identifies the permitted uses in each zoning district. With the exception of a radio or television tower, no industrial uses are permitted in an R-2 district; however, several industrial uses are allowed in FR districts. Ex. Vol., Plaintiff's Ex. B p. 14.
Prior to 1974, Booe purchased property in Gnaw Bone, Brown County, Indiana. In 1974, Booe began to operate a sawmill on the property. That year he applied for a "special exception to locate and operate a saw mill in a Forest Rec[reation] district." Ex. Vol., Plaintiff's Ex. K. The Board of Zoning Appeals ("BZA") denied Booe's application for a special exception because of the "road condition & residential area." Ex. Vol., Plaintiff's Ex. L. One year later in 1975, Booe again applied for a special exception to operate a sawmill. Ex. Vol., Plaintiff's Ex. P. On the hand drawn map attached to the application, Booe noted that the sawmill was located 400 feet from Brown Hill Road and adjacent to a private road. Id. Although several landowners opposed the application, the Plan Commission recommended to the BZA that they grant the special exception. Ex. Vol., Plaintiff's Ex. S. However, the BZA denied the application. Id. In 1976, Booe once again applied for a special exception, now for the third time. This third application was also opposed by landowners in the area. At the hearing on his application, Booe admitted that he had been operating the sawmill illegally and indicated that the sawmill was located 418 feet from Brown Hill Road. Ex. Vol., Plaintiff's Ex. U. The BZA granted his application for a special exception on August 24, 1976. Id.
In 1994, Booe decided to subdivide his property and submitted a primary plat to the Plan Commission. The subdivision, known as the "North of Gnaw Bone subdivision," contained "Tract I-1," a three acre tract, and a note on the plat indicated that Tract I-1 "is an industrial zoned tract." Ex. Vol., Defendant's Ex. 2. Booe's sawmill is located on this tract. Id. The Plan Commission gave final approval of the plat in 1995.
In 1998, Booe submitted an application to vacate the previous subdivision plat and replat, naming the subdivision "Heritage Hills." After submitting his primary plat, Booe received a letter from the Plan Commission requesting several changes to the plat including: 1) "Relocate east line on Tract # 5 to accommodate County Road 169;" 2) "Relocate east line on Tract # 6 to accommodate County Road 169 and the industrial building; making Tract # 6 residential;" and 3) "dedicate County Road 169." Ex. Vol., Plaintiff's Ex. EE.
Booe made the changes to the plat requested by the Plan Commission and it was approved. The approved plat contains three tracts, I-1, I-1A, and I-1B, which were noted as being industrial zoned tracts. Tract I-1A is situated between tracts 6 and 7. Ex. Vol., Plaintiff's Ex. I. The plat also notes that the "approximate location of Public Road # 169 is over `Aaron Drive' as easement labeled L, M, N." Id. The plat was recorded on February 17, 1998.
On March 31, 1999, Booe sold Tract I-1A to Beckemeyer. At the time of the sale a large pole barn was situated on the property. Ex. Vol., Defendant's Ex. 4. In the real estate listing, the pole barn was described as a "[l]ight industrial 30x110 pole barn with concrete floor on 1 acre. 400 amp service (3 phase)." Id. Prior to purchasing the tract, Beckemeyer reviewed the recorded Heritage Hills subdivision plat, which described the tract as having industrial zoning, and noted that Booe operated a sawmill on another "industrial" tract in the subdivision. Also, Beckemeyer discovered that Tract I-1A was taxed as a secondary commercial/industrial land tract. Before he bought the tract, Beckemeyer made an inquiry regarding the sawmill special exception and received a letter from an employee of the Plan Commission, Dan Harden. That letter provides: Appellant's App. p. 50. After he purchased the property, Beckemeyer began to store cars, building materials, and construction equipment on it.
At the Plan Commission meeting on February 24, 2000, a resident of the Heritage Hills subdivision, represented her concern to the Commission that Tract I-1A "be restricted to the number of businesses and type of businesses." Ex. Vol., Plaintiff's Ex. MM. Attorney Dave Schilling informed the Commission that the property was never rezoned industrial and indicated that when the property was subdivided, the intended use of the property had changed, and therefore, Booe should be required to apply for a new special exception. Id. Schilling also stated that the special exception was granted for a sawmill, but Booe's sawmill operates now as a manufacturing mill, which was not permitted by the special exception. Id. Thereafter, the Commission sent a letter to Booe indicating that his present use of the sawmill property was in violation of the zoning ordinance, and Booe should apply for all required approvals to bring the property into compliance by May 3, 2000. Ex. Vol., Plaintiff's Ex. SS. Booe did not file any such application.
On August 15, 2000, Brown County filed a complaint against Booe and Beckemeyer requesting preliminary and permanent injunctions, declaratory judgment, civil penalties, and damages. In the complaint, Brown County alleged that Booe has operated a sawmill on the property in a manner that violates the zoning ordinance and the 1976 sawmill special exception, or in the alternative that Booe has changed the nature and use of the property subject to the 1976 special sawmill exception, which under the zoning ordinance would require a new or amended exception, which Booe has not sought; therefore, Booe's use of the property violates the zoning ordinance and the sawmill special exception. Appellant's App. pp. 18-34.
The complaint also alleged that when he subdivided the property subject to the sawmill special exception, Booe was required to obtain a new or amended special exception, which he failed to do in violation of the zoning ordinance. Finally, the complaint alleged that Beckemeyer had established a custom millwork business on...
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