Field v. Area Plan Commission of Grant County, Ind.

• Decision Date: 17 June 1981
• Docket Number: No. 2-180A11,2-180A11
• Citation: 421 N.E.2d 1132
• Parties: Lewis FIELD, Appellant (Defendant Below), v. AREA PLAN COMMISSION OF GRANT COUNTY, INDIANA, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 1132

421 N.E.2d 1132

Lewis FIELD, Appellant (Defendant Below), v.AREA PLAN COMMISSION OF GRANT COUNTY, INDIANA, Appellee (Plaintiff Below).

No. 2-180A11.

Court of Appeals of Indiana, Fourth District.

June 17, 1981.

Patrick N. Ryan and Jack B. Welchons, Ryan & Welchons, Marion, for appellant.

Warren Haas, Marion, for appellee.

MILLER, Judge.

Lewis Field appeals the judgment of the Grant Circuit Court finding him in violation of the Marion, Indiana Area-Wide Zoning OrdinanceMaster Plan Ordinance 23-1974(Ordinance) which prohibits maintenance of a "junkyard" in a residential zone without first obtaining a special exception.The trial court ordered Field to remove the offending material and permanently enjoined him from permitting similar material to accumulate.

On appeal, the following issues are presented for review:

1) Did the trial court err in denying Field's motion to dismiss the complaint pursuant to Ind. Rules of Procedure, TrialRule 12(B)(6)?

2) Did "junkyard" as defined by the ordinance contemplate only maintenance of a commercial enterprise and not a location where junk was merely collected?

3) Was there sufficient evidence to support the trial court's judgment?

4) Did a mandatory injunction lie to remove chattels as opposed to structures?

We affirm.

FACTS

The subject-matter of the current dispute is residential property owned and occupied by Field located in Marion, Indiana and zoned Residential-2 which is primarily for single family dwellings.On June 19, 1978 the Area Plan Commission of Grant County, Indiana (Plan Commission) filed a verified complaint alleging Field was maintaining a common nuisance, as defined in Ind.Code 18-7-4-90, ¹ at his residence and sought both mandatory and prohibitory injunctions pursuant to IC 18-7-4-91.²Specifically, the Ordinance in question prohibits the maintenance of a "junkyard" in a district zoned R-2, and defines "junkyard" as follows:

"A place, usually outdoors, where waste or discarded used property other than organic matter is accumulated and/or stored and is or may be salvaged for reuse or resale, including but not limited to one or more unlicensed or inoperable motor vehicles."

On June 26, 1978 Field filed a motion to dismiss under T.R. 12(B)(6), claiming only commercial enterprises were prohibited under the Ordinance and that the complaint did not affirmatively allege Field was selling materials on his premises.The motion was denied and a bench trial followed on May 31, 1979.

A large portion of the testimony at trial centered on the description of materials located on the property at various times during the proceedings as witnessed by the Director of the Plan Commission, Betty Pence.Immediately before the verified complaint was filed, Pence observed various items on the property ³ including plastic, wheels, tires, pieces of antennas and lawn mowers, various metals including steel, iron and aluminum, and other debris.Several motor vehicles were also observed including two pick-up trucks and a station wagon.One of the pick-up trucks did not have a license plate.The other pick-up had an expired inspection sticker, a flat tire, a broken windshield and was partially supported by a cement block or wheel.This latter truck was equipped with a hatch top behind the cab; both the cab and hatch top were filled with various items including plastic, metal, wood and paper, leaving no visible room for a driver.The station wagon lacked a current license plate, had sunken into the soil and had vegetation growing around it.Since the suit was filed, several of the latter vehicles' windows had been broken.

Seven pictures of the property taken approximately five months after the complaint was filed were admitted into evidence showing what appear to be various metal cans and containers, a metal folding chair (apparently rusted), wire fences, plastic bags, tires, a pick-up truck and sundry items.There was testimony indicating at least two of the pictures depicted conditions similar to those existing at the time the suit was filed and at the time of trial.

On August 9, 1979the trial court issued its decision which in part found Field was maintaining a junkyard in violation of the zoning ordinance and:

"3.That the defendant is hereby ordered to remove all waist (sic) or discarded used property other than organic matter which has been accumulated or which has been stored and is or may be salvaged for re-use or re-sale, including but not limited to any unlicensed or inoperable motor vehicles on said property.

4.That the defendant is hereby permanently enjoined and restrained from hereafter permitting waist (sic) or discarded used property other than organic matter to be accumulated and/or stored on the property which is or may be salvaged for re-use or re-sale, including but not limited to any unlicensed or inoperable motor vehicles."

DECISION

The Motion to Dismiss

In his Motion to Correct Errors, Field proposes two arguments to support his allegation of error in the trial court's denial of his Motion to Dismiss.Field first contends a junkyard is necessarily a business enterprise and the complaint was deficient in not suggesting Field used his yard for business purposes.Secondly, he argues:

"The business nature of a junkyard is implicit in the definition, ....To classify an untidy residential yard as a junkyard would be arbitrary and unreasonable, and would deny homeowners due process of law.It would violate the 5th and 14th Amendments to the Federal Constitution, andArticle I, § 12, and§ 21 of the Indiana Constitution."

Given the liberality with which we review the sufficiency of a complaint, we do not believe Field's allegations, if taken to be true, would sustain a motion to dismiss for failure to state a claim upon which relief could be granted.In reviewing a complaint's sufficiency "(w)e must consider whether in the light most favorable to the plaintiff and with every intendment regarded in his favor, the complaint is sufficient to constitute any valid claim."Sekerez v. Gehring (1981) Ind.App., 419 N.E.2d 1004, quotingParker v. State (1980) Ind.App., 400 N.E.2d 796, 798.

"(I)n a typical 12(B)(6) situation, a complaint is not subject to dismissal unless it appears to a certainty that the plaintiff would not be entitled to relief under any set of facts.Sacks v. American Feltcher (sic) National Bank and Trust Co.(1972), (258 Ind. 189)279 N.E.2d 807.See alsoGladis v. Melloh(1971), (149 Ind.App. 466)273 N.E.2d 767;Wyant v. Lobdell(1972), (150 Ind.App. 675)277 N.E.2d 595.The rules do not require that the complaint state all the elements of a cause of action.It must be remembered that our new rules are based on so-called notice pleadings in which a plaintiff essentially need only plead the operative facts involved in the litigation.Other means less drastic than dismissal of the action can be used to clarify the theory and basis for the cause of action.Among these are a Motion for a more definite statement under TR. 12(E), our very broad discovery rules, and the pretrial conference under TR. 16(A)(1)."(Emphasis in the original).

Sekerez v. Gehring, supra, quotingState v. Rankin(1973)260 Ind. 228, 294 N.E.2d 604, 606.

The Plan Commission's verified complaint clearly alleged the maintenance of a common nuisance under the appropriate statute and ordinance at the residence in question, and included several pictures of the allegedly offensive material.Even assuming, arguendo, the maintenance of a commercial enterprise, in the sense that junk was bought and/or sold on the premises, was a necessary element, (an incorrect assumption as discussed later in this opinion) the complaint as drafted did not preclude proof of this element.Therefore, at the time of Field's motion to dismiss, it did not appear "to a certainty that the plaintiff would not be entitled to relief under any set of facts."Sekerez v. Gehring, supra.SeeNoblesville City Plan Commission v. Gatewood(1963)134 Ind.App. 609, 189 N.E.2d 426(in actions to enjoin violation of a zoning ordinance, complaint need only allege existence of ordinance and its violation by defendant).We believe the complaint sufficiently put Field on notice of the theory and basis for the cause of action, and the trial court did not err in denying his motion in this regard.

Similarly, the allegation of constitutional infirmity as contained in Field's motion to correct errors would not have justified the granting of his motion to dismiss.Field claims the ordinance cannot proscribe activity on his land which is not commercial in nature without violating his due process rights.⁴However he appears to readily admit that the prohibition of sales of junk on his property would satisfy constitutional requirements.Again, since under the complaint the Plan Commission could have ultimately proven the facts allegedly necessary under such a construction, the trial court, at that stage in the proceedings, was not authorized to grant the motion to dismiss.We therefore find no error in the denial of Field's motion.

Sufficiency of the Evidence I: Did the Ordinance Defining "Junkyard" Contemplate Only a Commercial Enterprise Requiring the Evidence to Show Junk was Actually Bought and Sold on the Premises?

Field next attacks the trial court's decision as contrary to law and not supported by sufficient evidence since there was no proof Field ran a commercial enterprise.He contends the definition of "junkyard" contained in the ordinance necessarily implies a business enterprise, i. e. the buying and selling of junk.The Plan Commission maintains the Ordinance does not contain such a limitation, but only sets out certain zoning districts where the storage and accumulation of discarded inorganic material would be offensive.Upon a plain reading of the Ordinance, we must agree with the Plan Commission.

In determining the meaning of an ordinance, applying the same rules of construction as...