Minser v. Dekalb Cnty. Plan Comm'n

• Decision Date: 28 April 2021
• Docket Number: Court of Appeals Case No. 20A-PL-2408
• Parties: Rebecca MINSER and Tina Zion, Appellants-Defendants, v. DEKALB COUNTY PLAN COMMISSION, Appellee-Plaintiff.
• Court: Indiana Appellate Court

170 N.E.3d 1093

Rebecca MINSER and Tina Zion, Appellants-Defendants,

v.DEKALB COUNTY PLAN COMMISSION, Appellee-Plaintiff.

Court of Appeals Case No. 20A-PL-2408

Court of Appeals of Indiana.

FILED April 28, 2021

Attorney for Appellant: Eric E. Snouffer, Fort Wayne, Indiana

Attorney for Appellee: Andrew D. Kruse, Auburn, Indiana

Tavitas, Judge.

Case Summary

[1] "The first rule of holes, according to an old saying, is to stop digging." Lightspeed Media Corp. v. Smith , 761 F.3d 699, 702 (7th Cir. 2014). That is essentially the advice given to Appellants Rebecca Minser and Tina Zion (collectively, "Appellants") by the DeKalb County Plan Commission ("the Commission"), with the expectation that Appellants follow that advice literally. Appellants paid a contractor to remove dirt from their backyard, but claim that the resulting hole, filled with water, is not legally a pond. They contend the trial court erred when it granted summary judgment in favor of the Commission on its complaint alleging that Appellants constructed a pond in violation of the DeKalb County Unified Development Ordinance ("UDO") and that Appellants be ordered to fill in said pond. In brief, this is a case about what to call a hole in the ground. We are unmoved by Appellants’ arguments, and therefore affirm the summary judgment decision of the trial court. We also find, however, that the trial court erred in awarding attorney's fees, and therefore reverse that decision. Accordingly, we affirm in part, reverse in part, and remand with instructions to vacate the attorney's fee award.

Issues

[2] Appellants raise six issues, which we consolidate and restate as two:

I. Whether the trial court erred in granting summary judgment to the Commission.

II. Whether the trial court erred in awarding the Commission attorney's fees.

Facts

[3] Appellants jointly own realty in DeKalb County consisting of approximately ten acres, primarily located in what is known as the AC6 zone under the UDO. The AC6 zone is part of the Airport Compatibility Overlay District ("ACO"), which, as the UDO explains, "is intended to establish a standard of safety and compatibility for the occupants of land in the immediate vicinity of the DeKalb County Airport by regulating incompatible land uses and setting development standards that supplement or super[s]ede the underlying zoning district." DeKalb Cnty. Unified Dev. Ordinance § 3.05 (2009).

[4] In approximately July of 2018, Appellants, via a contractor, dug a hole on their property. Appellants’ alleged intent was to use the displaced dirt to raise the level of their driveway. Appellants did not obtain an improvement location permit prior to digging. The resulting hole¹ filled with water and, thus, became a man-made body of water. The Director/Zoning Administrator of the Department of Development Service received information that the Appellants were shifting the dirt and clay and sent a notice that read:

On July 26, 2018[,] our building commissioner visually inspected your property because our office received a notice that dirt was being moved or dug from the property. Without knowing what you may be doing, if you are building a new structure, pond, etc. a permit is required. If you are moving dirt, filling in low spots or grading the property, we have no issues. Please contact me as soon as possible and let me know.

Appellants’ App. Vol. II p. 75.

[5] After the pond had already been constructed, Appellants applied for, and were denied, a development standards variance to retain the pond. Specifically, the Board of Zoning Appeals ("BZA") framed the issue at a hearing for which Appellants were present as: "Rebecca Minser and Tina Zion requesting a Development Standards Variance to allow for a pond located within the Airport Compatibility Overlay District in the air traffic pattern zone of AC6." Id. at 77 (emphasis added). Members of the airport board appeared at the hearing and opposed the variance. Appellants petitioned for judicial review of the denial in the DeKalb Circuit Court; however, that action was dismissed by the trial court.² Appellants were instructed to fill the pond back in, and apparently failed to comply.

[6] On June 26, 2019, the Commission filed a complaint in the DeKalb Superior Court, seeking injunctive relief—to have Appellants remove the pond in order to comply with the UDO—as well as requesting "that fines and penalties be assessed against Defendants as provided in the UDO and for attorney fees, court costs and all other just relief." Appellants’ App. Vol. II pp. 27-29. During an authorized property inspection on October 15, 2019, the Zoning Administrator took the following photograph depicting the view of the pond, located in Appellant's backyard, from Appellants’ patio:

[7] After the parties completed discovery, the Commission filed a motion for summary judgment and a memorandum in support thereof on January 20, 2020. The Commission also filed an affidavit alleging that $5,182.43 in attorney's fees had accrued as of January 20, 2020. Appellants filed an answer to the motion for summary judgment on March 20, 2020, and argued that Appellants "do not admit that a pond was erected on their property. Rather, [Appellants] maintain that the depression on their land was the result of mining clay from their backyard to be utilized in the preservation of their driveway." Appellants’ App. Vol. IV p. 73. The Commission filed a response on April 20, 2020, including an amended affidavit for attorney's fees, now in the amount of $7,573.68.

[8] Without a hearing, on December 3, 2020, the trial court issued findings of fact and conclusions of law thereon and awarded summary judgment to the Commission. The trial court also imposed a $1,000.00 fine on the Appellants and ordered Appellants to pay $7,573.68 in attorney's fees. Appellants now appeal.

Analysis

I. Summary Judgment

[9] Appellants argue that the trial court erred when it granted summary judgment to the Commission. "When this Court reviews a grant or denial of a motion for summary judgment, we ‘stand in the shoes of the trial court.’ " Burton v. Benner , 140 N.E.3d 848, 851 (Ind. 2020) (quoting Murray v. Indianapolis Public Schools , 128 N.E.3d 450, 452 (Ind. 2019) ). Summary judgment is appropriate "if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Murray , 128 N.E.3d at 452 ; see also Ind. Trial Rule 56(C). The party moving for summary judgment bears the burden of making a prima facie showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Burton , 140 N.E.3d at 851. The burden then shifts to the non-moving party to show the existence of a genuine issue of material fact. Id. On appellate review, we resolve "[a]ny doubt as to any facts or inferences to be drawn therefrom ... in favor of the non-moving party." Id. We review the trial court's ruling on a motion for summary judgment de novo, and we take "care to ensure that no party is denied his day in court." Schoettmer v. Wright , 992 N.E.2d 702, 706 (Ind. 2013). "We limit our review to the materials designated at the trial level." Gunderson v. State, Indiana Dep't of Nat. Res. , 90 N.E.3d 1171, 1175 (Ind. 2018), cert. denied. Findings of fact and conclusions of law entered by the trial court aid our review, but they do not bind us. Supervised Estate of Kent , 99 N.E.3d 634, 637 (Ind. 2018).

[10] "A party seeking an injunction for a zoning violation must prove: (1) the existence of a valid ordinance and (2) a violation of that ordinance." Cnty. of Lake v. Pahl , 28 N.E.3d 1092, 1100 (Ind. Ct. App. 2015) (citing Dierckman v. Area Plan. Comm'n of Franklin Cnty., Ind. , 752 N.E.2d 99, 104 (Ind. Ct. App. 2001), trans. denied. ), trans. denied. Appellants contend that neither element has been proven.

[11] The Commission's complaint alleged that Appellants were in violation of the following provisions:

5.42 RP-01: Recreational Pond; General

[ ]

The following pond standards apply:

A. Applicability: Any man-made pond or water body not regulated as a retention or detention pond,^[3] and greater than 400 square feet in surface area shall conform to the standards in this section.

* * * * *

3.08(G) Traffic Pattern Zone (AC6):

* * * * *

(3) Prohibited Uses, Structures, and Materials. The following uses, structures, and materials are prohibited from the Traffic Pattern Zone.

* * * * *

f. new retention and recreational ponds ,

* * * * *

10.01 Actionable Violations

It shall be an actionable Violation of the Unified Development Ordinance to:

A. Non-permitted Structures: Construct, place, or modify a structure in a manner that is not expressly permitted by the Unified Development Ordinance;

* * * * *

D. Non-permitted Uses: Utilize a property for a use that is not expressly permitted by the Unified Development Ordinance in the applicable zoning district; or by a use variance or other approval allowed under the Unified Development Ordinance;

* * * * *

F. Non-compliance with Approvals: Fail to fully comply with procedural requirements, payment of fees, conditions, enforceable covenants, or commitments associated with any approval; or

G. Other Violations: Otherwise fail to comply with any component of the Unified Development Ordinance.

DeKalb Cnty. Unified Dev. Ordinance §§ 3.05, 5.42, 10.01 (2009) (bold emphasis added).

[12] We are permitted to reach for the dictionary when striving to ensure that words in a statute or ordinance are afforded their ordinary, plain meanings. See, e.g., Dierckman, 752 N.E.2d at 103 (citing State v. D.M.Z. , 674 N.E.2d 585, 588 (Ind. Ct. App. 1996), trans. denied ). Here, however, such depth of research is not required. This is clearly a pond. See Walczak v. Lab. Works-Ft. Wayne LLC , 983 N.E.2d 1146 (2013) ("James Whitcomb Riley (1849-1916), our celebrated ‘Hoosier Poet,’ is widely credited with the origination of the Duck Test; as he expressed it, ‘[w]hen I see a bird...