MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Sep 21 2018, 6:11 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANTS ATTORNEY FOR APPELLEES
John J. Schwarz, II PUTNAM COUNTY
Schwarz Law Office, PC COMMISSIONERS
Hudson, Indiana Trudy L. Selvia
Greencastle, Indiana
ATTORNEYS FOR APPELLEE
INTERVENOR
Hayleigh J. Neumann
Robert J. Nice
The Nice Law Firm, LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
William E. Morrison and September 21, 2018
Sonya Morrison, Court of Appeals Case No.
Appellants-Respondents, 18A-PL-462
Appeal from the Putnam Superior
v. Court
The Honorable Raymond M.
Putnam County Commissioners, Kirtley, Senior Judge
Appellees-Petitioners, Trial Court Cause No.
67D01-1402-PL-3
and
Donald Richards,
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Appellee-Intervenor
Baker, Judge.
[1] William and Sonya Morrison own a farm in Cloverdale that has accumulated a
significant amount of junk and debris. The Putnam County Commissioners
(the County) determined that the Morrisons were in violation of a zoning
ordinance that prohibits agricultural property from being used as a junkyard.
The trial court granted an injunction and ordered the Morrisons to dispose of
the complained-of items. The Morrisons appeal, arguing that the evidence is
insufficient and that the trial court made errors of law. Finding sufficient
evidence and no other error, we affirm.
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Facts
[2] The Morrisons own approximately thirty-five acres of land in Cloverdale; they
have owned the land since 1983.1 Appealed Order p. 1. Donald Richards owns
a neighboring parcel of land.
[3] On February 7, 2014, the County filed a petition for a temporary restraining
order (TRO). The trial court issued the TRO on February 10, 2014. Neither
the petition nor the TRO are included in the record on appeal. We infer that
the petition included a demand that the Morrisons remove certain things,
including, for example, semi-trailers, flat-bed trailers, and debris, from their
property and that the trial court indeed made such an order. The TRO also
restrained the Morrisons from moving additional trailers and debris onto the
property.
[4] On March 17, 2015, the trial court ordered the Morrisons to make substantial
progress towards moving the items off their property. Apparently, little
progress was made, and on September 15, 2015, the trial court held a rule to
show cause hearing. In July 2016, the trial court found that the Morrisons were
not in compliance with the TRO and ordered them to comply.
1
There is some discrepancy in the record regarding the year in which the Morrisons purchased the property.
For the purposes of this appeal, however, it is irrelevant whether the purchase took place in 1983, 1985, or
1986.
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[5] On November 21, 2016, Richards intervened in the case. Thereafter, the parties
were referred to mediation, but were unable to reach a resolution. On February
9, 2017, Richards filed a motion for a preliminary and permanent injunction
and the County filed a motion for a preliminary injunction. The County’s
motion indicated that the Morrisons’ property was zoned as A1-Agriculture
Protection District, that the Morrisons were using the land as a junkyard, and
that the use of the land in that fashion is contrary to the land use of the A1
zone. Intervenor’s App. Vol. II p. 11.
[6] On September 12, 2017, the trial court held an evidentiary hearing. On
November 30, 2017, the trial court issued an order granting the requested
preliminary and permanent injunctions. In pertinent part, it found and
concluded as follows:
24. The Court finds that there are items on the property not
being used for agricultural purposes that are abandoned,
junked, inoperable or derelict vehicles, machinery, farm
machinery equipment or miscellaneous scrap or building
debris. Said items fall under the definition of junkyard per
the Putnam County Zoning Ordinance and [are] in
violation of said Ordinance.
25. Over one hundred photos were offered and admitted into
evidence. These photos, and sworn testimony
accompanying them show the following:
a. Semi-trailers, including both flat bed and box
trailers, have been brought upon the Farm since
2013.
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b. Additionally, significant amounts of construction
debris and scrap metal have been brought on to the
Farm since 2013.
c. Additionally [sic] machinery, farm machinery,
multiple motorized vehicles and equipment,
including but not limited to cars, trucks, bulldozers,
and a backhoe [have been] brought on to the Farm
since 2013 and remain there left abandoned, junked
and inoperable condition and in a state of
deterioration.
26. The Court finds that the Respondents have made use of
the real property and maintained certain farm equipment
and property thereon that is within the meaning of farming
operation and which includes growing of field crops,
raising, handling and holding Emus and producing
compost for application onto the real property, which are
all permitted uses per the Ordinance in regard to A1
Zoning.
***
31. The Court recognizes this has been an ongoing dispute
which has now gone on for several years. While the Court
has no direct interest in taking action simply to resolve
neighborly disagreements, it does recognize the benefit of
enforcing existing zoning laws so as to promote order and
predictability in land usage, which may in turn yield such
a benefit.
Conclusions of Law
***
3. The [Morrisons] are operating a junkyard on their real
estate . . . , in violation of the Putnam County Zoning
Ordinance.
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***
6. [The Morrisons] shall remove any semi-trailers and flatbed
trailers and their associated debris from the real
property . . . . as previously ordered on or about February
10, 2014 . . . . This shall be completed within 30 days of
this Order.
7. [The Morrisons] shall remove any additional tractors,
trailers, motor vehicles, backhoes, bulldozers, metal scrap,
and any other associated debris, brought on to the Farm
since 2013 . . . . This shall be completed within 90 days of
this Order.
***
13. The [Morrisons] are permanently enjoined from bringing
any further machinery or material onto the Farm, except
that which is permitted under the Ordinance.
Appealed Order p. 3-8. The Morrisons now appeal.
Discussion and Decision
[7] The Morrisons make multiple arguments, which we restate as follows: (1) there
is insufficient evidence supporting the trial court’s judgment; and (2) the ruling
is erroneous as a matter of law.
[8] When reviewing a trial court’s ruling stemming from a bench trial, we will only
set aside the judgment if it is clearly erroneous. E.g., WindGate Props., LLC v.
Sanders, 93 N.E.3d 809, 813 (Ind. Ct. App. 2018). We first consider whether
the evidence supports the trial court’s findings of fact and then consider whether
the findings support the judgment. Id. We give due regard to the trial court’s
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ability to assess the credibility of witnesses and defer substantially to its findings
of fact. Id. We do not afford the same deference to the trial court’s conclusions
of law. Id.
I. Sufficiency
[9] The Morrisons first argue that there is insufficient evidence supporting the trial
court’s conclusion that they were impermissibly operating a junkyard. They
also argue that the evidence supports a conclusion that their use of their
property constitutes a prior nonconforming use that should be permitted.
[10] It is undisputed that the Morrisons’ land is zoned as A1-Agriculture Protection
District. The A1 zone has certain permitted uses, permitted accessory uses and
structures, and development standards. A “junkyard” is a non-permitted use of
land zoned as A1. The relevant ordinance defines “junkyard” as follows:
A place, usually outdoors, where waste or discarded used
property other than organic matter, including, but not limited to,
automobiles, farm implements and trucks, is accumulated and is
or may be salvaged for reuse or resale; this shall not include any
industrial scrap metal yard or normal farming activities.
Putnam County Code § 155.005, available at Appellants’ App. Vol. II p. 45.
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[11] Richards testified at the evidentiary hearing and described, in great detail, the
items covering the Morrisons’ property.2 Among other things, the land holds:
• Many unused and inoperable semi-trailers and truck beds, some of which
were off their wheels;
• Metal debris;
• Multiple inoperable vehicles without license plates;
• Many piles of metal;
• Propane tanks;
• Tires;
• Vehicle axles;
• A trailer entirely full of trash;
• Box trailers;
• A backhoe, bulldozer, and Bobcat; and
• A significant amount of debris and junk.
Tr. Vol. II p. 164-67. The Morrisons admitted that they did not remove the
semi-trailers and flatbeds that the trial court ordered to be removed in the
February 2014 TRO. Id. at 83-84. They also admitted that they have since
brought additional tractors and motor vehicles onto the property since February
2014. Id. at 84-85. The director of the Putnam County Director of Planning
and Zoning testified that the abandoned vehicles and scrap metal on the
property would meet the ordinance’s definition of a junkyard.3 Id. at 51.
2
To the extent that the Morrisons appear to argue that the evidence offered by Richards cannot be used to
support the trial court’s judgment because the County bore the burden of proving its case, we note that they
apparently did not object to Richards’s intervention in the case and certainly did not appeal it. As he is now
a full party to the case, his evidence may be considered alongside the County’s.
3
The Morrisons note that at another point in his testimony, the director testified that the junkyard definition
would not apply because the items were not in their front yard. This amounts to a request that we reweigh
the evidence, which we may not do. We must focus only on the evidence supporting the trial court’s
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[12] We find that this evidence supports the trial court’s conclusion that the
Morrisons were using their property as a junkyard. The evidence shows that
the Morrisons’ land was a place outdoors where waste or discarded used
property, including automobiles, farm implements, and trucks, was being
accumulated and the property could have been salvaged for reuse or resale.
Furthermore, the trial court took great care in its order to distinguish between
items that were part of normal farming activities, which are not affected by the
judgment, and items that did not qualify as such, which must be removed.
Appealed Order p. 5-7.
[13] The Morrisons insist, correctly, that there is no evidence in the record that they
salvaged the junk for reuse or resale. But the definition does not require that; it
merely requires that the items “may be salvaged for reuse or resale[.]” Putnam
County Code § 155.005 (emphasis added). Whether or not they currently are or
have been in the past, the many items described above could be salvaged for
reuse or resale; therefore, this use of the property meets the definition of
junkyard. See Tr. Vol. II p. 98-99 (Morrison testifying that all the items on his
property could be reused because he would dispose of them properly if they
became unusable).
[14] The Morrisons also note that there is undisputed evidence in the record that
their property was a farm, arguing that the same plot of land could not
judgment. Moreover, we note that this witness’s testimony regarding the location of items in the front yard
was prevaricating and inconclusive. Tr. Vol. II p. 50-51.
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simultaneously be used as a farm and a junkyard. They are correct that there is
evidence in the record showing that the property is a farm, and indeed, the trial
court’s order explicitly acknowledged as much, carving out exceptions to its
order for items on and uses of the land that were part of the farming operation.
We cannot conclude, however, that the same plot of land could not be used
both as a junkyard and as a farm. One plot of land may have multiple uses,
especially where, as here, it covers thirty-five acres. Nothing in the ordinances
or caselaw suggests that a property that is partially being used as a junkyard can
only be designated as such. We agree with Richards that “a more accurate
statement is that by simultaneously using his Property as both a farm and a
junkyard, Morrison is in violation of the Ordinances.” Intervenor Br. p. 12
(emphases original). Therefore, this argument is unavailing.
[15] The Morrisons also argue that the trial court should have found that their
property was protected via an established prior nonconforming use. A prior
nonconforming use
is a use of property that lawfully existed prior to the enactment of
a zoning ordinance that continues after the ordinance’s effective
date even though it does not comply with the ordinance’s
restrictions. The general rule is that a nonconforming use may
not be terminated by a new zoning enactment.
Metro. Dev. Comm’n of Marion Cty. v. Pinnacle Media, LLC, 863 N.E.2d 422, 425
(Ind. 2005).
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[16] Initially, we note that the Morrisons did not raise this argument to the trial
court. As such, they have waived it. Waiver notwithstanding, the Morrisons
did not offer evidence that the items on their property predated the relevant
ordinances, which went into effect in 1992. Moreover, they admitted that they
have added items to the property since the 2014 TRO, tr. vol. II p. 84-85, and
Richards testified that some of the items on the property were recent additions,
while others had been there ten to fifteen years—which would date back to
2002 to 2007, long after the ordinances were enacted. Because the Morrisons
offered no evidence such as proofs of purchase, sales disclosures, or receipts to
prove that any of the items on the property predated the enactment of the
ordinance, this argument is unavailing.4
II. Inverse Condemnation
[17] Next, the Morrisons argue that the trial court’s order amounts to an
unconstitutional taking by inverse condemnation. Yet again, they did not make
this argument to the trial court and have therefore waived it. See Tender Loving
Care Mgmt., Inc. v. Sherls, 14 N.E.3d 67, 73 (Ind. Ct. App. 2014) (holding that
“[c]onstitutional rights are not absolute and may be waived”).
4
The Morrisons argue that the fact that they received no notices of violation in the 1980s, 1990s, or 2000s,
establishes that their use of the property was a prior nonconforming use. But this evidence in no way shows
whether the complained-of items were actually on their property during the decades before the ordinance was
enacted.
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[18] Waiver notwithstanding, it is well established that “not every restriction placed
upon private property constitutes a taking, and our supreme court has drawn a
distinction between ‘a parcel of property [that] is not zoned for its best and most
profitable use and a situation where the present zoning restriction results in a
deprivation of one’s property rights.’” Galbraith v. Planning Dep’t of City of
Anderson, 627 N.E.2d 850, 852-53 (Ind. Ct. App. 1994) (quoting Young v. City of
Franklin, 494 N.E.2d 316, 317-18 (Ind. 1986)). A taking occurs when all
reasonable use of the property is prevented by the land use regulation. Id. at
853. Therefore, a zoning regulation becomes confiscatory only when it denies
the property owner all economically beneficial or productive use of the land.
Id.
[19] In this case, the Morrisons are not arguing that the ordinance itself, which
prohibits an A1-zoned property from being used as a junkyard, is confiscatory.
Nor do they claim that the ordinance denies them all economically beneficial or
productive use of the land. As such, the restriction contained within the
ordinance is not confiscatory, and the enforcement thereof does not amount to
inverse condemnation.
[20] What they appear to be arguing, instead, is that the trial court gave them so
small a window to dispose of the property that they will have to sell the items at
a financial loss. But they have had since 2014 to dispose of much of the debris—
the thirty-day window imposed by the trial court for these items is eminently
reasonable given their repeated refusals to abide by the TRO. And the trial
court afforded them with ninety days to dispose of the items not covered by the
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TRO, which we find to be a reasonable amount of time. We do not find that
the trial court’s order amounts to an inverse condemnation.
III. Right to Farm Act
[21] Finally, the Morrisons argue that they are protected by the Indiana Right to
Farm Act. Ind. Code § 32-30-6-9. Yet again, they failed to make this argument
to the trial court and have therefore waived it for appeal.
[22] Waiver notwithstanding, the Indiana Right to Farm Act contains restrictions on
the circumstances under which agricultural operations may be subject to
nuisance claims. I.C. § 32-30-6-9(d). The Morrisons argue that the County’s
lawsuit amounts to a nuisance claim that should be governed by this statute.
[23] Had the County chosen to do so, it could have pursued a claim under the
ordinances for maintaining a common nuisance. Putnam County Code §
155.999. It elected not to approach the situation in that way, however, and we
see no basis on which to conclude that this zoning violation action is a nuisance
claim in disguise. Therefore, we find that the Indiana Right to Farm Act does
not apply.
[24] In his brief, Richards asks that we order the Morrisons to pay attorney fees for
maintaining a frivolous appeal and/or acting with bad faith. We decline to do
so.
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[25] The judgment of the trial court is affirmed.
May, J., and Robb, J., concur.
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