Rogers v. Noble County By and Through Noble County Bd. of Com'rs
| Decision Date | 28 April 1997 |
| Docket Number | No. 57A04-9612-CV-536,57A04-9612-CV-536 |
| Parties | Crystal ROGERS, Appellant-Defendant, v. NOBLE COUNTY, By and Through the NOBLE COUNTY BOARD OF COMMISSIONERS, and Noble County Building Department, Appellees-Plaintiffs. |
| Court | Indiana Appellate Court |
Appellant-Defendant, Crystal Rogers ("Rogers"), appeals from the granting of a temporary restraining order ("TRO") in favor of Appellees-Plaintiffs, Noble County and Noble County Building Department (collectively, "County"). We reverse.
Rogers presents several issues which we restate as: whether the trial court abused its discretion in granting the TRO, which prevents her from further construction on her home until she obtains a building permit from the County.
Rogers owns real estate located in an unincorporated area of Noble County and was engaged in constructing a second story to her residence. The work was being performed by members of Rogers's family and a friend. Rogers had not applied for a building permit from the County. The County's building inspector, concerned about the stability of the structure, issued a stop work order. The County then filed a complaint to require Rogers to allow an inspection of the residence and moved to enjoin Rogers from further construction activity until she obtains a building permit and complies with the Noble County Code. Following a hearing, the trial court issued a TRO and entered Findings of Fact and Conclusions of Law as follows, in part:
FINDINGS OF FACT
1. The within action has been brought under the Noble County Code § 36-7-8 (the "County Building Code"). The County Building Code has been enacted pursuant to I.C. 36-7-8-3 and I.C. 36-7-8-4.
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11. The Board of Commissioners of Noble County, Indiana, have duly adopted General Ordinance No.1988-10, which Ordinance incorporates by reference ... the Building Codes of the State of Indiana. 1
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14. The Defendant, Crystal Rogers, is performing the construction work ... either by herself or through family members and relatives and no professional contractors are performing any substantial work thereon.
15. The structure upon which this work is being performed constitutes a private home and is therefore entitled to the benefit of the provisions of I.C. § 36-7-8-3(d).
....
17. The Noble County Building Code, namely 36-7-8 of the Code of Noble County as adopted by General Ordinance 1986-4 and 1988-10 adopts minimum housing standards as authorized by I.C. 36-7-8-4.
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19. The construction being performed upon the structure on the Real Estate may be unsafe, dangerous, and not in compliance with the Noble County Building Code, and may fail to meet the minimum housing standards established therein.
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3. General Ordinance 1986-4, General Ordinance 1988-10 and the County Building Code constitute building standards under I.C. 36-7-8-3 and minimum housing standards under I.C. 36-7-8-4.
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7. The construction being performed by Crystal Rogers on the Real Estate is being performed without compliance with the provisions of I.C. 36-7-8-4 and Noble County General Ordinances 1986-4 and 1988-10 and Noble County Code 36-7-8.
8. The construction being performed by the Defendant without a building permit could constitute a dangerous condition to the citizens and inhabitants of Noble County and their visitors.
(R. 28-33, 45-47) (as amended). Rogers appeals this interlocutory order. 2
The issuance of a preliminary injunction is a matter which lies within the sound discretion of the trial judge. State Bd. of Public Welfare v. Watkins, 459 N.E.2d 394, 396 (Ind.Ct.App.1984). The trial court's decision may be reversed on appeal only when the decision amounts to an abuse of discretion. Id. In determining whether the trial court abused its discretion, we look to the trial court's findings of fact required by Ind. Trial Rules 65 and 52. Northern Indiana Pub. Serv. Co. v. Dozier, 674 N.E.2d 977, 989 (Ind.Ct.App.1996). In determining whether an abuse of discretion exists, we determine whether the findings validly support the court's decision. Id.
Discretion to grant or deny an injunction is measured by several factors: (1) whether the plaintiff's remedies at law are inadequate, causing irreparable harm pending resolution of the substantive action; (2) whether the plaintiff has at least a reasonable likelihood of success at trial; (3) whether the plaintiff's threatened injury outweighs the potential harm to the defendant resulting from the granting of the injunction; and (4) whether the public interest will be disserved. Fumo v. Medical Group of Michigan City, Inc., 590 N.E.2d 1103, 1108 (Ind.Ct.App.1992), trans. denied. Rogers argues that the County did not meet its burden of showing it had no adequate remedy at law, showing that irreparable injury would occur, and showing that the injunction was in the public interest. However, when the acts sought to be enjoined clearly are against the public interest, the plaintiff need show neither irreparable injury nor a balance of hardship in his favor. DeMayo v. State ex rel. Dept. of Natural Resources, 182 Ind.App. 241, 394 N.E.2d 258, 261 (1979). The evidence indicated that the construction work on Rogers's home may be unsafe and dangerous. The trial court concluded that this possible danger could extend to the general public. Construction of unsafe housing is against the public interest, but the trial court based its order on a finding that Rogers's construction may fail to meet minimum housing standards. Rogers contends that this finding is contrary to law.
The legislature has authorized Indiana counties to adopt ordinances regulating buildings in unincorporated areas by two distinct methods. First, Indiana Code Section 36-7-8-3 allows a county to adopt minimum standards for all buildings:
(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. 3
(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). Second, Indiana Code Section 36-7-8-4 allows a county to adopt minimum standards for housing:
(a) The legislative body of a county having a county department of buildings or a joint city-county building department may, by ordinance, adopt minimum housing standards for unincorporated areas of the county. These standards must be consistent with the rules of the fire prevention and building safety commission.
(b) An ordinance adopted under this section applies to:
(1) residential buildings;
(2) residential parts of mixed occupancy buildings; and
(3) conversions of buildings from nonresidential to residential or partly residential.
The trial court found that though Rogers was entitled to the 36-7-8-3(d) exemption for a private home built by individuals, she was nonetheless subject to the Noble County Building Code because it was adopted pursuant to both 36-7-8-3 and 36-7-8-4. The trial court, in effect, concluded that the Noble County Building Code constitutes both minimum building standards and minimum housing standards.
Rogers and the County both rely upon Robinson v. Monroe County, 658 N.E.2d 647 (Ind.Ct.App.1995), clarified on reh'g, 663 N.E.2d 196 (Ind.Ct.App.1996), trans. denied, the only case discussing these statutes. In Robinson, another panel of this court held that 36-7-8-3(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. That is, exempting an individual from the requirements of obtaining authorization for proposed construction and subjecting the completed work to inspection and approval prior to permitting occupancy of the building runs contrary to the goal of ensuring safe buildings. Yet, Subsection (d) undeniably creates such an exception from the requirements set out in Section 3.
Therefore, exempting a person who wishes to build his own house from the requirements imposed pursuant to IC 36-7-8-3 of complying with construction specifications and obtaining permits allows that person to build a house even though he may not possess the skills or equipment to comply with technical specifications, and allows him to do so even if he is not able to afford to pay others to do the work.
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We note also that IC 36-7-8-3(d) only creates an exemption from the requirements set out in Section 3 and does not provide a similar exemption from the requirements set out in Section 4 concerning minimum housing standards and related ordinances. Accordingly, none of the discussion contained herein is...
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