Saurer v. Board of Zoning Appeals
| Decision Date | 28 February 1994 |
| Docket Number | No. 03A01-9305-CV-171,03A01-9305-CV-171 |
| Citation | 629 N.E.2d 893 |
| Court | Indiana Appellate Court |
| Parties | Paul Andrew SAURER, Appellant-Defendant, v. BOARD OF ZONING APPEALS and Columbus-Bartholomew County Department of Building and Zoning Administration, Appellees-Plaintiffs. |
David W. Stone, IV, Anderson, for appellant-defendant.
Cynthia A. Boll, Jones, Patterson, Boll & Tucker, Columbus, for appellees-plaintiffs.
It has long been stated that one person's trash is another person's treasure. Today we decide whether one man's personal property in his yard constitutes junk or scrap prohibited by a county zoning ordinance.
Appellant-defendant Paul A. Saurer challenges the trial court's finding that he maintained a junkyard on his real estate in violation of Section 5(28) of the Bartholomew County zoning ordinance as alleged by appellee-plaintiffs Bartholomew County Board of Zoning Appeals and Columbus-Bartholomew County Department of Building and Zoning Administration (collectively Zoning Board). The sole issue presented for our review--whether the trial court abused its discretion by enjoining Saurer from continuing the maintenance of a junkyard and ordering him to remove certain items of junk from his real estate--depends upon a determination of what constitutes junk or scrap and whether Saurer's property falls within that definition.
The undisputed facts relevant to this appeal are that Saurer is the owner of real property along U.S. 31 in Bartholomew County, Indiana. Saurer's real property is in a rural area zoned as C-4 or roadside commercial. 1 Saurer keeps virtually everything but the kitchen sink outdoors including the following: rusted farm machinery, rusted shelving, a toilet, an inoperable satellite dish, a broken door frame, numerous unlicensed automobiles including a truck, a van, a boat, and an automobile without a trunk lid, a truck camper-top, a boat trailer, a trailer used for hauling, rusted storage tanks, rusted propane or fuel tanks, a pile of tires and rusty wheels, several piles of metal and wood, a pile of buckets, pans, and other miscellaneous items, unlicensed old tractors, twenty-seven building trusses covered by a tin roof with various items stored therein, unlicensed semi-trailers, roasters, and stainless steel kitchen tables. 2
In late November or early December 1991, the Office of Technical Code Enforcement, a division of the Building and Zoning Administration, received complaints regarding Saurer's property. On December 24, 1991, Junior Zoning Board Officer Richelle Wakefield inspected and took photographs of Saurer's property. Wakefield believed that the condition of Saurer's property presented numerous 28. JUNKYARD, INCLUDING AUTOMOBILE WRECKING--A lot or a part thereof used for the storage, keeping, dismantling, abandonment or sale of junk, scrap metal, scrap vehicles or scrap machinery or parts thereof.
violations of Section 5(28) of the county zoning ordinance. Section 5 provides:
Record at 69. The zoning ordinance does not define junk or scrap. However, Section 19 of the zoning ordinance provides that a junkyard is a conditional use which may be permitted only in industrially zoned I1 or I2 districts.
Wakefield sent Saurer a letter concerning the violations and gave him until March 10, 1992, to move construction materials and unlicensed vehicles into a building and to remove other items from his property. When Wakefield conducted a second inspection on March 10, 1992, she discovered that Saurer's property was in the same condition as before, except that Saurer had covered the tractors with tarp. Wakefield took additional photographs that day.
On June 17, 1992, Wakefield and her supervisor, James Wray, conducted a third inspection and took a third set of photographs. On July 22, 1992, the Zoning Board filed an injunction action asking the court to order Saurer to clear and remove all unlicensed or inoperable vehicles, farm machinery, semi-trailers, trailers, boats, used construction materials, and miscellaneous debris from his property, and to enjoin him from continuing the operation and maintenance of a junkyard on his property in violation of Section 5(28) of the county zoning ordinance.
At Saurer's request the parties met on September 30, 1992, at which time Wakefield took additional photographs. Saurer agreed to correct any violations and was given until December 31, 1992, to do so. On January 5, 1993, Wakefield inspected Saurer's property and took a fifth set of photographs. Wakefield believed Saurer's property was still in violation of the zoning ordinance, so the Zoning Board proceeded with its injunction action against Saurer.
Following hearings on January 8 and 15, 1993, the trial court held that Saurer maintained a junkyard on his property in violation of Section 5(28) and enjoined him from continuing its operation and maintenance. The trial court suspended the injunction for thirty days as to miscellaneous debris, junk, scrap metal, scrap vehicles, scrap machinery or parts thereof, including construction material and kitchen equipment, and for one year as to the old tractors, farm machinery and building trusses, during which time Saurer was to remove these items to bring his real property into compliance with the zoning ordinance. Saurer appeals only the trial court's finding that his tractors, semi-trailers, building trusses, roasters, and kitchen tables are junk or scrap. 3
The grant or denial of an injunction lies within the sound discretion of the trial court and will not be overturned unless it was arbitrary or amounted to an abuse of discretion. Cooper v. Calandro (1991), Ind.App., 581 N.E.2d 443, 445, trans. denied. We will reverse the trial court's judgment if the findings of fact are clearly erroneous. Id. Findings of fact are clearly erroneous when a review of the record leaves us firmly convinced that a mistake has been made. Id. In seeking an injunction for a zoning violation, the moving party must prove the existence of a valid ordinance and a violation of that ordinance. Metropolitan Dev. Comm'n of Marion County v. Goodman (1992), Ind.App., 588 N.E.2d 1281, 1285.
Saurer does not dispute that Section 5(28) is a valid zoning ordinance which applies to There are certain things, although difficult to define, that fall within the realm of "we know them when we see them." Junk and scrap, like pornography, may be two of those things. See Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 1683, 12 L.Ed.2d 793 (1964) (Stewart, J. concurring) (). Nonetheless, we must identify a concrete definition.
him, but contends that the Zoning Board failed to prove that his tractors, trailers, trusses, roasters, and kitchen tables are junk or scrap prohibited by the ordinance. Because the zoning ordinance does not define junk or scrap, we must first determine their meanings, and then determine whether Saurer's property fits within the definition of junk or scrap.
Words in a statute are to be given their common and ordinary meaning. Consolidated Coal Co. v. Indiana Dep't of State Revenue (1991), Ind., 583 N.E.2d 1199, 1201 (); Inman v. Farm Bureau Ins. Co. (1992), Ind.App., 584 N.E.2d 567, 569, trans. denied (looking to a statute for the common and ordinary meaning of renewal); Wesner v. Metropolitan Dev. Comm'n (1993), Ind.App., 609 N.E.2d 1135, 1139 ().
Though not defined by the zoning ordinance at issue in the present case, the term junk is defined in the Indiana Department of Transportation Act. 5 I.C. 8-23-1-26 states "[j]unk means old or scrap copper, brass, rope, rags, batteries, paper, trash, rubber debris, waste, or junked, dismantled, or wrecked automobiles or automobile parts, iron, steel, and other old scrap ferrous or nonferrous material." This statutory definition is consistent with the dictionary definitions. Black's Law Dictionary, Fifth Edition defines junk as:
Worn out and discarded material in general that may be turned to some use (citations omitted). Articles that have outlived their usefulness in their original form, and are commonly gathered up and sold to be converted into another product, either of the same or of a different kind; e.g. old iron, or other base metals, old rope, rags, waste paper, etc., empty bottles, and all articles discarded or no longer used as a manufactured article composed of any one or more of the materials mentioned.
Webster's Collegiate Dictionary, Tenth Edition defines junk as:
[P]ieces of old cable or cordage used esp. to make gaskets, mats, swabs, or oakum; old iron, glass, paper, or other waste that may be used again in some form; secondhand, worn, or discarded articles; clutter; something of poor quality; trash; something of little meaning, worth, or significance....
Today, we adopt these common and ordinary meanings of the term junk. We also note that scrap and junk are terms used interchangeably to describe essentially the same things, except that scrap may more accurately describe smaller materials or fragments of rejected or discarded articles useful only for reprocessing.
In support of its claim that Saurer is maintaining a junkyard on his real estate, the Zoning Board emphasizes Inspector Wakefield's opinion that Saurer's personalty is unsightly, and the opinions of Saurer's two neighbors, Ralph Scheller and Sharon Western, that Saurer's personalty is junk because it is not pleasant to view. This emphasis is not legally sound.
Because the Bartholomew County zoning ordinance limits the free use of real property, it is in derogation of the common law and must be strictly construed. 6 See ...
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