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Blackford v. Boone Cnty. Area Plan Comm'n

Court of Appeals of Indiana

September 11, 2015

Robert Blackford, Appellant-Defendant,
v.
Boone County Area Plan Commission and Boone County Drainage Board, Appellees-Plaintiffs

Appeal from the Boone Superior Court. Lower Court Cause No. 06D02-1405-MI-43. The Honorable Rebecca McClure, Judge.

ATTORNEY FOR APPELLANT: Michael J. Andreoli, Zionsville, Indiana.

ATTORNEYS FOR APPELLEES: Robert Clutter, Sergey Grechukhin, Kirtley, Taylor, Sims, Chadd & Minnette, P.C., Lebanon, Indiana.

Pyle, Judge. Crone, J., and Brown, J., concur.

OPINION

Pyle, Judge.

Statement of the Case

[¶1] Appellant-Defendant, Robert Blackford (" Blackford" ), who is a former prosecutor and represented himself pro se, appeals the trial court's denial of his oral request for a continuance made on the day of trial. The trial court denied Blackford's request, held the bench trial, and entered judgment in favor of Appellees-Plaintiffs, Boone County Area Plan Commission (" the Plan Commission" ) and Boone County Drainage Board (" the Drainage Board" ) (collectively, " Boone County" ). Blackford argues that the trial court abused its discretion by denying his continuance request. Given Blackford's failure to show good cause or prejudice, we conclude that the trial court did not abuse its discretion.

[¶2] We affirm.

Issue

Whether the trial court abused its discretion by denying Blackford's oral request for a continuance made on the day of trial.

Facts

[¶3] On May 1, 2014, the Plan Commission filed a complaint against Blackford and his estranged wife, Susan Blackford (" Susan" ).[1] In its complaint, the Plan Commission alleged, in part, that:

4. Defendants are the owners of real estate located in Boone County, County Parcel Number 008-00210-01 and an address of 3401 East 750 South (est.), Boone County, Indiana (" the Property" ). The Property is located within Boone County but outside an incorporated town or city.
5. The unincorporated areas of Boone County are governed by and subject to the Zoning Ordinance of Boone County (" the Zoning Ordinance" ) . . . .
6. The Property is designated as General Agricultural (" AG" ), as that term is defined in the Zoning Ordinance.
7. The Zoning Ordinance provides that " Open Material Storage" is permitted only on real estate with a zoning designation[] of I-2 (General Industry), or by Special Exception on real estate with a zoning designation of I-1 (light Industry). Open Material Storage use is not permitted in the AG designated areas.
8. A " Construction/Demolition Site," as that term is defined in the Zoning Ordinance, is permitted only by Special Exception by the Boone County Board of Zoning Appeals (" BZA" ) in the areas designated with an I-1 zoning, I-2 zoning, or AG zoning. Defendants did not apply for a special exception with the BZA.
9. I.C. [§ ] 36-7-4-1014 provides that Plaintiff may bring an action in a court of competent jurisdiction to enforce the Zoning Ordinance.
10. On or about December 19, 2013, Defendants' Property was inspected and found to contain a significant amount of dirt, concrete, debris, and an unpermitted construction trailer. It was determined that the accumulation of dirt, concrete, and debris has negatively affected drainage, and presented a high potential for off-site erosion and sedimentation in violation of the Boone County Drainage Ordinance. Defendants did not obtain a permit for the temporary construction trailer or a Drainage Permit in violation of the Zoning Ordinance.
11. On or about March 17, 2014[,] a Notice to Stop Work Order (" Order" ) was placed on the Property. Defendants did not comply with the Notice.
12. On or about April 29, 2014, Defendants' Property was inspected and found to contain piles of dirt, concrete, rebar, construction equipment, and an unpermitted construction trailer, and a second Order was posted on the Property.
13. Defendants, or their agents, have intentionally removed and destroyed two (2) Stop Work Orders posted on the Property by Plaintiff, and continue to conduct activities at the site in contravention of those Orders and the Zoning Ordinance.
14. Defendants have been notified of the non-conforming uses of the Property by letters sent by U.S. Mail and Certified Mail, and have refused or failed to remedy the non-conforming uses of the Property.
15. Defendants' uses of the Property . . . are in violation of the Zoning Ordinance, Drainage Ordinance, and is a common nuisance.

(App. 21-23) (emphases added). The Plan Commission sought a permanent injunction to " permanently enjoin Defendants from utilizing the Property as a construction/demolition site or an open material storage for storing dirt, concrete, rebar, debris, industrial or construction waste and other materials." (App. 24). Additionally, the Plan Commission sought, subject to provisions of the Zoning Ordinance, " civil penalties of not more than Three Hundred Dollars ($300.00) per day" as well as attorney fees and costs. (App. 24).

[¶4] On May 22, 2014, Blackford, a former prosecutor, filed a pro se answer to the complaint. In his answer, Blackford denied that he was using the Property for Open Material Storage or as a Construction/Demolition Site. In regard to the allegations contained in paragraph 10 of the Plan Commission's complaint, Blackford answered, in part, as follows:

OH MY GOD!!!! Rachel Cardis [the Plan Commission's Executive Director] found a significant amount of dirt on my farm! I admit it. There is a large amount of dirt on my property. I find no authority whatsoever enabling any Boone County official to regulate dirt on my farm, either the bringing in of the dirt, or the moving of dirt around on the property itself . . . After studying the zoning ordinance, I believe my impression is correct--there are no prohibitions to what I am doing . . . [T]he Complaint turns Bill Clintonish: " Mistakes were made" !! Mistakes don't make themselves, and the phrase " It was determined" in paragraph 10 suffers the same ambiguity: Who made the determination that drainage has been negatively affected? What kind of qualifications does that person possess? Against what standard was the present condition compared in order to make such a determination? This allegation is void for vagueness. I had the property examined and surveyed by Hause Surveying and Engineering, and the surveyors and engineers determined that, in fact, there has been no impact whatsoever to the drainage at the property. All of the neighboring properties ...

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