Noble County Bd. of Com'rs v. Fahlsing, 57A04-9806-CV-278.

• Decision Date: 21 July 1999
• Docket Number: No. 57A04-9806-CV-278.,57A04-9806-CV-278.
• Citation: 714 N.E.2d 1134
• Parties: NOBLE COUNTY BOARD OF COMMISSIONERS and Noble County Building Department, through Richard A. Adair, its Building Inspector, Appellants-Plaintiffs, v. Dennis Wayne FAHLSING, a/k/a Dennis Wayne; Fahlsing, Appellee-Defendant.
• Court: Indiana Appellate Court

714 N.E.2d 1134

NOBLE COUNTY BOARD OF COMMISSIONERS and Noble County Building Department, through Richard A. Adair, its Building Inspector, Appellants-Plaintiffs, v. Dennis Wayne FAHLSING, a/k/a Dennis Wayne; Fahlsing, Appellee-Defendant.

No. 57A04-9806-CV-278.

Court of Appeals of Indiana.

July 21, 1999.

Rehearing Denied October 7, 1999.

Phillip A. Renz, Monica S. Weaver, Miller Carson Boxberger & Murphy LLP, Fort Wayne, Indiana, Attorneys for Appellants.

Dennis Wayne Fahlsing, Avilla, Indiana, Appellee Pro Se.

OPINION

NAJAM, Judge

STATEMENT OF THE CASE

In November of 1996, the Noble County Board of Commissioners and the Noble County Building Department (collectively "the County") filed a complaint for a temporary restraining order, preliminary injunction, permanent injunction and damages against Dennis Wayne Fahlsing ("Fahlsing").¹ In the complaint, the County sought to enjoin Fahlsing from completing construction of a structure on his property without a building permit. In December of 1996, Judge Robert C. Probst entered a temporary restraining order against Fahlsing. Thereafter, both Fahlsing and the County filed various motions. In October of 1997, Judge Probst disqualified himself and appointed Judge George E. Brown as special judge. Following a status conference, Judge Brown determined that the structure was exempt from the County building codes pursuant to Indiana Code Section 136-7-8-3(d) and reversed the December 1996 temporary restraining order against Fahlsing. The County appeals the trial court's decision, and Fahlsing cross-appeals.

We affirm in part, reverse in part and remand.

ISSUES

The County presents one issue for review, and in his cross-appeal, Fahlsing raises two additional issues. We restate the issues as:

1. Whether the trial court erred when it determined that Fahlsing's structure falls within the "home exemption" established by Indiana Code Section 36-7-8-3(d).

2. Whether the trial court erred when it found that regardless of the home exemption, the County has authority to inspect the structure pursuant to Indiana Code Section 36-7-2-3.

3. Whether the trial court abused its discretion when it denied Fahlsing's motion to reconsider an award of attorney's fees in favor of the County.

FACTS

In the fall of 1996, Fahlsing and some friends began building a structure on farmland he owned located near State Road 3 in Noble County. There is no other building or structure on the land, and Fahlsing's residence is located on property approximately three miles away. Fahlsing does not own the property surrounding the parcel on which the structure stands.

Fahlsing did not apply to the County for a building permit, but he did apply for and obtained an electrical services permit. On that application, Fahlsing stated that the present use of the structure was a "shop and warehouse." He also listed "self" as the contractor and attached a handwritten letter notifying the County that he was claiming a building permit exemption under Indiana Code Section 36-7-8-3(d).

In November of 1996, Noble County Building Inspector Richard Adair observed the structure on Fahlsing's property, a van bearing the letters "AO" or "AJ" or "JO Smith Construction" and several individuals working on the structure. Adair was concerned that the structure was being built in a "careless manner" and issued a stop work order instructing Fahlsing to stop construction. Fahlsing posted "No Trespassing" signs on his property and continued construction. The County then sought a preliminary injunction and temporary restraining order against Fahlsing, which Judge Probst issued. After Special Judge Brown was appointed, the court reversed the temporary restraining order against Fahlsing. Specifically, Judge Brown determined that the structure was an accessory to Fahlsing's residence and, thus, was subject to the home exemption under Indiana Code Section 36-7-8-3(d). The County filed a motion to correct error, which the trial court denied.

DISCUSSION AND DECISION

Issue One: Home Exemption Under Indiana Code Section 36-7-8-3(d)

The County argues that Fahlsing's structure is not subject to the home exemption provision of Indiana Code Section 36-7-8-3(d) and that the trial court's reversal of the temporary restraining order is erroneous. Specifically, the County maintains that the home exemption provision does not include accessory structures and that, even if it did, the structure does not qualify as an accessory structure. We address the County's arguments in turn.

The interpretation of a statute is not a question of fact but one of law reserved for the courts. Robinson v. Zeedyk, 625 N.E.2d 1249, 1251 (Ind.Ct.App.1993), trans. denied. Our objective when construing the meaning of a statute is to ascertain and give effect to the legislative intent expressed in the statute. Chavis v. Patton, 683 N.E.2d 253, 257 (Ind.Ct.App.1997). Where possible, every word must be given effect and meaning, and no part is to be held meaningless if it can be reconciled with the rest of the statute. Moduform, Inc. v. Harry H. Verkler Contractor, Inc., 681 N.E.2d 243, 248 (Ind.Ct.App.1997), trans. denied. Undefined words are given their plain, ordinary and usual meaning, IND.CODE § 1-1-4-1(c), and courts may consult English language dictionaries to ascertain the plain and ordinary meaning of a statutory term. Moduform, 681 N.E.2d at 248. Still, the legislative intent as ascertained from the whole prevails over the strict, literal meaning of any word or term used therein, and we presume that the legislature intends for this court to apply language in a logical manner consistent with the statute's underlying policy and goals. Chavis, 683 N.E.2d at 257.

In Rogers v. Noble County, 679 N.E.2d 158, 162-63 (Ind.Ct.App.1997), trans. denied, we held that Noble County enacted its Building Code pursuant to Indiana Code Section 36-7-8-3, which provides:

(a) The legislative body of a county having a county department of buildings or joint city-county building department may, by ordinance, adopt building, heating, ventilating, air conditioning, electrical, plumbing, and sanitation standards for unincorporated areas of the county. These standards take effect only on the legislative body's receipt of written approval from the fire prevention and building safety commission.

(b) An ordinance adopted under this section must be based on occupancy, and it applies to:

(1) the construction, alteration, equipment, use, occupancy, location, and maintenance of buildings, structures, and appurtenances that are on land or over water and are:

(A) erected after the ordinance takes effect;

(B) if expressly provided by the ordinance, existing when the ordinance takes effect;

(2) conversions of buildings and structures, or parts of them, from one occupancy classification to another; and

(3) the movement or demolition of buildings, structures, and equipment for the operation of buildings and structures.

(c) The rules of the fire prevention and building safety commission are the minimum standards upon which ordinances adopted under this section must be based.

(d) An ordinance adopted under this section does not apply to private homes that are built by individuals and used for their own occupancy.

(emphasis added).

In Robinson v. Monroe County, 658 N.E.2d 647, 650-51 (Ind.Ct.App.1995), this court first construed Indiana Code Section 36-7-8-3 and concluded that the clear legislative purpose of the statute was to ensure safe buildings. We also determined, however, that "[s]ubsection (d) represents an exception to the safety-oriented requirements set forth elsewhere in the statute and thus is contrary to the purpose of the statute." Id. at 650. Explaining the rationale for such an exemption, we stated:

We can conceive of only one purpose which could justify allowing a builder to circumvent certain applicable building safety ordinances when he builds a house which he will occupy. In its early stages, this country's frontier was moved westward by pioneers who moved onto land and built houses by hand. Since then, home owning has become an essential facet of the "American dream." It may be that ordinances such as those contemplated by IC 36-7-8-3, which establishes construction specifications and require[s] permits and inspections for residential construction projects, interfere with the ability of some individuals to build their own home and thus to pursue the American dream.

Building codes and ordinances may conceivably discourage or impede such individuals from building their own houses. A private individual building his own house may not possess the skills necessary to construct a building which complies with the technical specifications set out in the ordinances. In addition, an individual may not be able to afford to hire professionals or others to build a house.

Id. at 651.

In Robinson, there was no question that the structure at issue was to be used as the person's residence and, thus, the structure was a "home" in its most traditional sense. In this case, however, Fahlsing does not argue that the structure is a residence. Fahlsing informed the County on his electrical services permit that the structure was a "shop or warehouse." In its order, the trial court determined that the home exemption provision is not limited to persons who build residences. Specifically, the court reasoned:

In reviewing I.C. 36-7-8-3(d), it is interesting to note that the legislature chose to use the word "homes" rather than "houses" in describing exempt structures. Clearly a house is a building while a home seems to imply something more. One's home certainly includes his house, but should also include accessory structures such as those described in I.C. XX-XX-X-X which are used and occupied by the owner and his family. By way of illustration, if an individual was constructing a house with an attached garage for his own occupancy, there is little doubt that the house and garage would meet the

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