Harbour Town Associates, Ltd. v. City of Noblesville

• Decision Date: 20 July 1989
• Docket Number: No. 29A04-8804-CV-135,29A04-8804-CV-135
• Citation: 540 N.E.2d 1283
• Parties: HARBOUR TOWN ASSOCIATES, LTD. Chrisken Real Estate Management Company, Inc. and The Indiana National Bank, as Trustee, Appellants (Defendants Below), v. CITY OF NOBLESVILLE, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 1283

540 N.E.2d 1283

HARBOUR TOWN ASSOCIATES, LTD. Chrisken Real Estate Management Company, Inc. and The Indiana National Bank, as Trustee, Appellants (Defendants Below), v. CITY OF NOBLESVILLE, Appellee (Plaintiff Below).

No. 29A04-8804-CV-135.

Court of Appeals of Indiana Fourth District.

July 20, 1989.

Phillip R. Scaletta, David H. Eyke, Ice Miller Donadio & Ryan, Indianapolis, for appellants.

Douglas D. Church, Church Church Hittle & Antrim, Noblesville, for appellee.

CHEZEM, Judge.

Case Summary

Harbour Town Associates, Ltd., Chrisken Real Estate Management Company, Inc., and The Indiana National Bank, appeal the granting of the City of Noblesville's Motion for Permanent Injunction. We affirm.

Issues

(1) Whether the trial court abused its discretion by ruling that the owners of an Apartment complex located in a residential zoning district violated the City of Noblesville's ("the City") zoning ordinance by leasing boat docks and a boat ramp at the Apartment complex to members of the general public not residing at the Apartment complex.

(2) Whether the trial court abused its discretion by ruling that the City was not prohibited by the doctrine of laches from enforcing its zoning ordinance.

Facts

On April 21, 1987, the City filed its Motion for Temporary Restraining Order and Complaint for Mandatory Injunction to enjoin Harbour Town Associates, Ltd. (the beneficial owner), Chrisken Real Estate Management Company, Inc. (managing agent of the Apartment complex), and The Indiana National Bank (as Trustee), (all appellants will be referred to collectively as "Harbour Town"), from leasing the boat docks and boat ramp located at the Apartment complex to non-residents in violation of the City's zoning ordinance.

The Apartments were developed in two phases, and zoning approval was sought and obtained from the City prior to the construction of each phase. The Apartments were constructed on property classified as a "C" Residence District by the Zoning Code of Noblesville ("Zoning Code"). The Apartments were classified more specifically as a conditional use, garden apartment, while the boat docks and ramp were permitted as "accessory uses" to the apartments under the "C" Residence District classification.

A number of the boat docks were leased to the general public since the construction was completed in 1974. After purchasing the Apartments in 1985, Harbour Town continued the practice of leasing the docks to residents and non-residents alike. Thus, the use of the boat docks by the general public has continued uninterrupted since 1974. In late 1986, after the City was notified, via a citizen complaint, of the zoning violation, the City sent a letter to Harbour Town advising them that Harbour Town's practice of leasing boat docks to the public was a violation of the Zoning Code.

On March 21, 1988, the trial court issued a permanent injunction enjoining Harbour Town from leasing the boat docks and ramp to non-residents. The trial court determined that the leasing activity was a commercial use unrelated to the Apartments' principal use, and thus violative of the City's Zoning Code. The trial court also ruled that the City's enforcement of the Zoning Code against Harbour Town was not barred by the equitable doctrine of laches.

Discussion

(1)

The standard of review in actions to enjoin zoning violations is to determine whether the trial court abused its discretion in granting the injunction. Metropolitan Development Commission v. Hair (1987), Ind.App., 505 N.E.2d 116, 117. "An abuse of discretion will be found only if the trial court's decision is clearly against logic, and the trial court's findings of fact will be disturbed only if they are clearly erroneous." Id. See also, Indiana Rules of Procedure, Trial Rule 52(A).

"An allegation and proof of a valid ordinance and evidence establishing a violation of that ordinance will sustain a suit for injunction against a land owner." Board of Zoning Appeals, Etc. v. Freeman (1982), Ind.App., 437 N.E.2d 1035, citing Spurling v. Area Plan Commission of Evansville (1978), Ind.App., 381 N.E.2d 507; DeSchamps v. Board of Zoning Appeals of Kokomo (1961), 241 Ind. 615, 174 N.E.2d 581, 583. Here, there is no dispute that the Apartments are located on property validly zoned as "C" Residence District.

Harbour Town argues that apartments, in general, are "designed to be a commercial success and generate a return on the owner's investment; [therefore,] the principal use of this property is commercial. [Further], because of the unique location of the development, ... the commercial leasing to non-residents is a proper accessory use to the commercial principal use of the property." However, we have held that "ownership is not determinative of use." Maxey v. Board of Zoning Appeals (1985), Ind.App., 480 N.E.2d 589, 593. "The term 'use,' as employed in the context of zoning, is a word of art denoting 'the purpose for which the building is designed, arranged or intended, or for which it is occupied or maintained.' Both zoning in general and 'uses' in particular focus on how a building or parcel of land is utilized ..." Pleasureland Museum v. Dailey (1981), Ind.App., 422 N.E.2d 754, 755 (citations omitted). See also, Hair supra.

Section 61.17 of the Zoning Code of Noblesville sets forth the intended uses for real estate classified as a "C" Residence District:

This District is intended primarily to provide for a wide range of dwelling types including single, two and multi-family dwellings; and Garden Apartment Uses and Mobile Home Parks as Conditional Uses. This District is designed for areas having approved public water supply and sanitary sewer systems.

(a) PERMITTED USES

(1) Single-Family Dwelling

(2) Two-Family Dwelling

(3) Multi-Family Dwelling

(4) Conditional Uses, as set forth in Sec. 61.43, Uses 2, 3, 7-9, 11-13, 17-19, 21, 24-26, 30 and 31.

(5) Contingent Uses, as set forth in Sec. 61.42, Uses 1-9, and 11.

(6) Mobile Home, in a Mobile Home Park in accordance with Sec. 61.34.

(7) Garden Apartment Use (which is a Conditional Use), as set forth in Sec. 61.40.

(8) Accessory Uses, as set forth in Sec. 61.44.

(9) Temporary Uses, as set forth in Sec. 61.45.

(10) Home Occupations, as set forth in Sec. 61.46.

A "C" District allows for both Conditional Uses ("those uses traditionally affected with a public interest and those uses entirely private in character but of such an unusual nature that their operation may give rise to unique problems with respect to their impact upon neighboring property and public facilities." Sec. 61.43) and Contingent Uses ("one which is likely or liable, but not certain, to occur and which is not inappropriate to the principal Uses of the District in which it may be located." Sec. 61.42).

The party seeking permission for a Conditional Use (there are no provisions explaining the procedure to obtain a Contingent Use) must file an application with the Board. The original owner of the Apartments sought approval for development of the property and received permission to construct Garden Apartments, as a conditional use. Section 61.62 of the Code defines "Garden Apartment Use" as:

An architectural and functional grouping of Dwelling units which may include Townhouses in one or more buildings not exceeding two and one-half (2 1/2) stories in height with at least two (2) but not more than twenty (20) dwelling units in each building or buildings, and appropriate associated and accessory uses, which is the central feature of a development plan composed of building area, parking area, landscape development and planting areas, and other land features appropriate for its use as dwellings, and which conforms to the standards and requirements of this Code; provided, that each Garden Apartment Use shall have at least twelve (12) dwelling units.

This Section clearly shows that the principal use of garden apartments is residential, and that the appropriateness of other features on the land is to be judged with reference to the use of the property as a dwelling place. The trial court did not abuse its discretion in finding that the principal use of the Apartments is residential.

The trial court also ruled that leasing the docks to non-residents constituted a commercial use and thus was not a permissible accessory use of the property. Section 61.62 of the Code defines an accessory building and use as "[a] Building or Use subordinate to another Structure or Use located on the same Lot and which does not change or alter the character of the premises ..." Accessory Uses are also set forth in Section 61.44 of the Code:

(a) INTENT

Accessory Uses shall be permitted in all zone districts in accordance with the provisions of this section. Accessory Uses:

(1) Shall be incidental and subordinate to, and commonly associated with the operation of the principal use of the lot.

(2) Shall be operated and maintained under the same ownership and on the same lot as the principal use.

(3) Shall be clearly subordinate in height, area, bulk, extent and purpose to the principal use served.

(4) Shall not be located closer to any lot line than the minimum setback line required, unless specified otherwise in this Code.

(5) Shall not be permitted prior to the erection and operation of the principal use, unless a temporary Improvement Location Permit is obtained in accordance with Sec. 61.45.

Clearly, only uses of property that are subordinate and incidental to the principal use of the property are permitted. Here, the leasing of the boat docks to non-residents was not permitted under the zoning classification, nor was it subordinate to the property's principal residential use. Therefore, it was not an accessory use of the property, and similarly did not qualify as an allowable use.

The decision of this court in Maxey v. Board of Zoning Appeals, supra, further illustrates the concept of an accessory use. In Maxey, two individuals purchased property which had been used by Valparaiso...