Robinson v. Monroe County

• Decision Date: 11 December 1995
• Docket Number: No. 60A04-9506-CV-225,60A04-9506-CV-225
• Citation: 658 N.E.2d 647
• Parties: Jesse Cloud ROBINSON and Sue Ann Mitchell, Appellants-Defendants, v. MONROE COUNTY, Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 647

658 N.E.2d 647

Jesse Cloud ROBINSON and Sue Ann Mitchell, Appellants-Defendants, v. MONROE COUNTY, Indiana, Appellee-Plaintiff.

No. 60A04-9506-CV-225.

Court of Appeals of Indiana.

Dec. 11, 1995.

Rehearing Denied March 21, 1996.

Jesse C. Robinson and Sue Ann Mitchell, Bloomington, pro se.

J. Alexander Tanford, Bloomington, for appellants.

David B. Schilling, Monroe County Attorney's Office, Bloomington, for appellee.

OPINION

FRIEDLANDER, Judge.

Jesse Cloud Robinson and Sue Ann Mitchell (the Appellants) appeal from a summary judgment ruling in favor of Monroe County, Indiana (the County). The Appellants present the following restated issue for review:

Does Ind.Code 36-7-8-3(d), which provides that building codes do not apply to private homes that are built by individuals and used for their own occupancy, apply to an individual who hires independent building contractors to construct portions of his house?

We reverse.

The facts in favor of the Appellants, the non-moving parties, are that the Monroe County Commissioners established the Monroe County Building Department in 1988. The Building Department was granted the powers and duties set out in I.C. 36-7-8, et seq. Soon thereafter, the Monroe County Commissioners created the Monroe County Building Code, which was applicable to the construction, alteration, repair, use, occupancy, maintenance, and additions to all buildings and structures in the unincorporated areas of Monroe County. The Monroe County Building Code was approved by the Indiana Fire Prevention and Building Safety Commission on April 5, 1988.

In 1991, Appellants purchased two acres of real property in an unincorporated area of Monroe County, Indiana. In March or April of 1992, the Appellants began construction of a single family dwelling on their property. The Appellants did some of the construction work themselves and hired contractors to do the rest. Among the work performed by contractors was: 1) excavating and preparing foundation trenches; 2) building the foundation walls and finishing the concrete garage floors; 3) building and finishing the house's concrete slab floor; 4) hanging and finishing the drywall in the house; and 5) installing the heating and ventilating system. The Monroe County Building Code required that various permits be obtained in conjunction with the construction of a house, including a building permit and an occupancy permit. The Appellants failed to obtain such permits.

On February 9, 1993, the County filed a Verified Complaint for Permanent Injunction and Civil Penalty on Ordinance Violations alleging that the Appellants were required to obtain the relevant building and occupancy permits, were asked to do so, and refused to comply. The County sought an injunction "which enjoin[ed] [the Appellants] from further erecting, constructing, enlarging, altering, repairing, improving, removing, converting, equipping, using, occupying or maintaining the [Appellants's house] until all permits required by the Code [had] been obtained." Record at 56. The County further sought an order requiring the Appellants to pay costs incurred by the County in determining whether the house was constructed in accordance with the Code and requiring that the Appellants pay the costs of any necessary repairs. The County also sought an order requiring the Appellants to pay a civil penalty of $250.00 per day for each day the Appellants were found to be in violation of the Code.

The Appellants denied that they were required to obtain any permits from the County, contending that they were exempted from such requirements by IC 36-7-8-3(d). The County submitted a motion for summary judgment, contending that IC 36-7-8-3 did not apply because some of the construction work on the Appellants' house was performed by professional contractors. The Appellants appeal from the granting of the County's summary judgment motion.

The facts material to the issue before us are not in dispute. The Appellants admit that they constructed a house without obtaining permits pursuant to the Monroe County Building Code. The Appellants also admit that some of the construction work on their house was performed by contractors. The controversy in the instant case centers upon the applicability of IC 36-7-8-3(d) to the undisputed facts. The question presented by the Appellants, therefore, is essentially one of statutory construction.

The interpretation of a statute is a question of law which is reserved for the courts. Robinson v. Zeedyk (1993), Ind.App., 625 N.E.2d 1249, trans. denied. Our objective when construing the meaning of a statute is to determine and implement the legislature's intent. Post-Tribune v. Police Dept. of City of Gary (1994), Ind., 643 N.E.2d 307. In interpreting a statute, we are guided by the language employed in the statute and the legislative intent which we ascertain from that language. Estate of Chiesi v. First Citizens Bank, N.A. (1992), Ind.App., 604 N.E.2d 3, opinion adopted, (1993), Ind., 613 N.E.2d 14.

IC 36-7-8-3 states:

"(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; and

(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 supplied.]

The dispute in the instant case arises from the interpretation of the phrase "homes that are built by individuals". The County contends that in order to come within the statute, and thus claim exemption from the requirement of obtaining permits, a party must personally perform all of the construction work on his or her house. According to the County, the exception does not apply in the instant case and the entire construction project was subject to the requirements of the building code because the Appellants hired subcontractors to perform certain construction tasks on their house. The Appellants argue that Subsection (d) applies because they performed much of the construction work on their house. Moreover, the Appellants appear to argue that the exemption applies even if the owner performs no physical labor themselves, but rather causes the house to be built by others.

The legislative history of IC 36-7-8-3(d) is sparse and provides little enlightenment as to its meaning. The house and senate journals reflect the passage of the bill through the house of representatives and the senate but do not contain discussion about the substance of the act. As originally enacted, Section 3 contained the following statement of purpose:

"The purpose of the ordinance is to provide for the safety, health and public welfare through structural strength and stability, means of egress, adequate sanitation, plumbing, light and ventilation, and protection of life and property from...