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County of Lake v. Pahl

Court of Appeals of Indiana

March 31, 2015

County of Lake and the Lake County Plan Commission, Appellants-Plaintiffs,
Alan J. Pahl and Roderick Pahl, Appellees-Defendants

Page 1093

Appeal from the Lake Superior Court. The Honorable Thomas W. Webber, Sr., Senior Judge. Cause No. 45D04-1208-PL-78.

ATTORNEY FOR APPELLANTS: Adam J. Sedia, Rubino, Ruman, Crossmer & Polen, Dyer, Indiana.

ATTORNEY FOR APPELLEES: John P. Reed, Jonathan Halm, Abrahamson, Reed & Bilse, Hammond, Indiana.

Brown, Judge. Bailey, J., and Robb, J., concur.


Page 1094

Brown, Judge.

[¶ 1] County of Lake (" Lake County" ) and the Lake County Plan Commission (the " Plan Commission," and collectively with Lake County, the " Appellants" ) appeal the trial court's finding in favor of Alan J. and Roderick Pahl[1] (collectively the " Appellees" ) and raise two issues, which we revise and restate as whether the trial court erred by denying the Appellants' request for an injunction or abused its discretion by denying the Appellants' motion to correct error. We reverse and remand.

Facts and Procedural History

[¶ 2] In 2006, the Appellees purchased a certain 10.08 acre parcel of land located in Lowell, Indiana (the " Property" ), which comprises Lot 5 of Westerhoff Acres, a five-lot subdivision. The land is situated in an area of Unincorporated Lake County that was first zoned by Lake County in 1957 as part of its Comprehensive Plan and Zoning Ordinance. From the enactment of the 1957 Zoning Ordinance through June 13, 1995, the Property was zoned A-1, which established its classification as an agricultural zone. Its zoning classification was changed in the summer of 1995 to R-1, single family residential, in order to develop Westerhoff Acres.

[¶ 3] Kimberly Pahl, who sometime after the purchase married Alan, was interested in purchasing land for agricultural purposes. Alan and Kimberly (collectively " the Pahls" ) found a realtor's listing for

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the Property, which indicated that it was zoned " Ag-Res." Defendants' Exhibit 1 at 2. The Pahls reviewed a real property maintenance report issued by the Lake County Assessor's Office on its website, which, under " Parcel Type," indicates " 101 AG -- Cash Grain/General Farm," but the Pahls did not go to or check with the Plan Commission on the Property's zoning classification. Defendants' Exhibit 6 at 3.

[¶ 4] When the Pahls purchased the Property, corn and soybean stubble from the prior year's harvest was visible on the Property. The purchase agreement, dated January 1, 2006, provided that " [a]ll crops planted upon the Property prior to 12/30/05 shall belong to the Seller . . . . All other crops belong to the Purchaser." Defendants' Exhibit 4 at 1. In the spring of 2006, the Pahls began to construct a home, which took eight months to complete, and, while construction was ongoing, farming activity on the Property ceased.

[¶ 5] Around May 2008, the Pahls first brought alpacas onto the Property. Kimberly keeps a variety of animals there, including chickens, ducks, rabbits, riding horses, mini horses, alpacas, and goats. The Pahls' nearest neighbor, from the back of that neighbor's house, is about 50 to 80 feet from the Pahls' property line, and other neighbors' lots are anywhere from 100 to 600 feet away from the Property. The Pahls sell the ducklings, the goats are used for both recreational and commercial purposes, and the alpacas are raised for their fiber and manure. Kimberly sends the alpaca fiber to a mill in trade for a finished product, but sometimes she sells it directly to spinners or uses part of the fiber in her own products that she makes for sale.[2]

[¶ 6] In October 2009, the Pahls received a letter from the Plan Commission notifying them that they were in violation of the Unincorporated Lake County Zoning and Planning Ordinance (the " Zoning Ordinance" ) because they were keeping alpacas on the Property. After receiving the letter, Alan contacted Rick Niemeyer,[3] who informed Alan that he had previously known the couple kept alpacas after receiving an earlier complaint and, once Niemeyer received a second complaint regarding the alpacas, he forwarded that complaint to Robert Bauer, a code enforcement officer on the Plan Commission, who then took action. The next day the Pahls contacted Bauer to determine how to remedy the violation. At some point after the receipt of the letter notifying them of their violation under the Zoning Ordinance, the Pahls filed two petitions for a variance with the Lake County Board of Zoning Appeals (the " BZA" ), one to operate as a hobby farm and the other to build an accessory building.

[¶ 7] On March 17, 2010, the Pahls withdrew their petitions when they discovered, through the Indiana Department of Agriculture and the Indiana Farm Bureau, that their Property might qualify as an agricultural nonconforming use under Ind. Code § 36-7-4-616, which, in general, provides protection for the use of land for agricultural purposes in an area where such use would not be permitted by the applicable zoning ordinance. As a result, the Pahls, through their attorney, notified the BZA that they did not wish to proceed on their

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variance petitions. On May 27, 2010, the Pahls received a letter from Bauer again indicating that they were in violation of the Zoning Ordinance and that the matter would be turned over to Lake County's attorney for legal action.

[¶ 8] In October 2011, Alan applied to the Plan Commission for a permit to build a barn on the Property. Ned Kovachevich, Executive Director of the Lake County Planning and Building Department, informed Alan that, under the Zoning Ordinance, the proposed barn was too large based on the lot's size and residential zoning classification.

[¶ 9] On August 28, 2012, the Appellants filed a complaint for injunctive relief against the Pahls alleging that their use of the Property constituted agricultural use, that the Property was located in a residential subdivision, and that the Property did not qualify as a hobby farm, all in violation of the Zoning Ordinance. Specifically, the complaint alleged that raising alpacas in excess of the number allowed per acre in a residential zone, constructing " illegal temporary structures," constructing " accessory buildings and sheds without the benefit of acquiring the necessary building permits," and conducting " business in a residential zone" on the Property violated the Zoning Ordinance. Appellants' Appendix at 17. The Appellants sought injunctive relief and the removal of the alpacas, and the removal of " the illegal temporary structures" including the " commercial semi-trailer being used for storage, any buildings and/or mobile homes" or, in the alternative, requested that the Pahls " apply for and obtain the proper building permits for the construction or maintaining of the illegally constructed buildings, sheds, and/or mobile homes." Id. The Appellants also sought to " bring the property into compliance with all rules and regulations of the Unincorporated Lake County Zoning, Planning and Building Ordinances," to prevent the Pahls from " conducting business operations in a residential zone," to stop " increasing the extent of the violations" under the Zoning Ordinance, and to bring the Property " into full compliance with the applicable zoning district." Id. at 17-18. On October 18, 2012, the Pahls filed an answer which denied the relevant allegations in the complaint and pled, as affirmative defenses, duress, estoppel, illegality, laches, lack of jurisdiction over the subject matter, and failure to state a claim upon which relief can be granted.

[¶ 10] On March 3, 2014, the court conducted a bench trial, at which the parties presented testimony and exhibits consistent with the foregoing. At the outset, the Appellants' counsel argued " [w]e're alleging that there's some violations with the number of animals and keeping animals on the property and some buildings without proper permitting." Transcript at 3. The Appellees' counsel argued that " [w]hat we think we have here is a statutory defense to the County's imposition of its present zoning code subdivision ordinance upon us by an overriding state statute, [Ind. Code § 36-7-4-616], that controls the ongoing practice of agriculture on [the Property]." Id.

[¶ 11] At the trial, Kimberly testified that in January 2006 she had a conversation with Bauer about whether the couple could use the Property for both agricultural and residential uses, specifically whether they could keep alpacas and horses, to confirm the information related to them by a real estate agent concerning the Property's suitability for agricultural uses, and that Bauer did not provide any negative information to those questions. Kimberly stated that there had not been a three-year period in any five-year stretch when the Property had not been farmed or put

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to an agricultural use. She further testified that she kept " approximately 28 alpacas . . . two riding horses, four minis, some chickens, some ducks, and four pigmy goats" on the Property. Id. at 39. She clarified that she had about " two dozen" chickens and " about a dozen ducks." Id. at 40. She also stated that she had applied for a barn permit, which she did not receive, and that the Plan Commission would not accept her application for a fence permit. She further testified that the inability to build a barn proved dangerous for the animals during the winter time and that " [a]bout 20" alpacas " froze to death" during the 2013 winter. Id. at 61. When asked whether the alpacas would have frozen to death if there had been a proper barn, she responded, " [n]o." Id.

[¶ 12] On cross-examination, Kimberly testified that she looked online to determine but did not understand that, at the time of the purchase, the Property was located in a residential zone. She testified that her conversation with Bauer " was about whether or not I was able to use [the Property] as [sic] agricultural purposes," that she was never " presented with the zoning maps no matter how many times I went to the County and inquired about" the Property, and that she was unsure as to whether the Property was, in fact, located in a subdivision. Id. at 68. As to Kimberly's efforts to ascertain whether the Property was in a subdivision or was agricultural, she testified that " I inquired to the Assessor's Department the claims that the County had made in 2009 whether I was in a subdivision or not, and I was told, no, I was not" but was " told something different" regarding the land's zoning classification when she inquired at the Plan Commission. Id. at 69. She also testified that she had seen Lake County's ordinance book and was aware that the minimum acreage to be considered a farm under the Zoning Ordinance was twenty acres and acknowledged that the Pahls' lot was only 10.08 acres. She stated that she did not have a permit for the temporary structures, and did not have permits for the accessory buildings. Regarding the fences, Kimberly testified that she " was told [she] did not need [a permit]" for the fences, but admitted that she lacked a permit for the fencing. Id. at 76. She also indicated that she was running a business, Blumenau Alpacas, in a residential zone, but she was losing money for tax purposes. Kimberly further testified that she sends fiber from the alpacas to mills and sells the finished products through the internet, at events, or through word of mouth. She also explained a shearer " comes in once a year" and that " [o]ccasionally" a transport truck will come to the Property. Id. at 77

[¶ 13] Kovachevich testified that in 2006 the Property was zoned R-1 and that R-1 zoning " is our most restrictive residential zone." Id. at 101. He stated that keeping animals, with the exception of dogs and cats, is not allowed in an R-1 zone. Kovachevich testified that the Zoning Ordinance allows for hobby farms, which are " allowed in all zoning districts" and " completely defines exactly where and how many animals would be permitted in a subdivision," and he indicated that a hobby farm is not permitted in a subdivision unless eighty percent of the platted lots are at least five acres in size. Id. at 106. When asked whether the Pahls' lot qualified as a hobby farm, Kovachevich responded " [n]o," and he added that, other than dogs and cats, " [t]here are no animals [] allowed" on the Property. Id. at 107. Kovachevich also stated that business operations are not allowed in an R-1 zone, unless the individual applies for a variance. As to the temporary structures, Kovachevich testified that temporary structures

Page 1098

" are categorically not allowed" and that " [y]ou can't get a building permit for a temporary structure." Id. at 111. He also indicated that, absent permits, the temporary structures and accessory buildings, including lean-tos and other sheds, were on the Property illegally. Regarding fences, Kovachevich explained that " an agricultural fence, [] does not require a building permit, but it's a very small split rail" and that the fencing on the Pahls' Property " would require building permits." Id. at 114. He added that " there are certain qualifications . . . under the zoning ordinance that people must meet, and then there are other requirements under the building code that are . . . different. . . . but [building and zoning permits] basically are issued in conjunction with each other." Id. at 118.

[¶ 14] During cross-examination of Kovachevich, the following exchange occurred:

[Appellants' Counsel]: We stipulate that evidence has been presented that shows [the Property] was farmed up to the date of purchase, but we have no ...

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