Kelly Lee Muncy, Kendra Marie Vondersaar, Karen Kay Muncy and Kim Sue Muncy v. Town of Avon, Indiana

• Court: Indiana Court of Appeals
• Decided: January 15, 2013
• Docket: 32A04-1203-OV-134
• Status: Unpublished

Opinion

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before FILED any court except for the purpose of Jan 15 2013, 9:45 am establishing the defense of res judicata, collateral estoppel, or the law of the case. CLERK of the supreme court, court of appeals and tax court

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

LAWRENCE R. WHEATLEY J. KENT MINNETTE Danville, Indiana TYLER M. NICHOLS Kirtley, Taylor, Sims, Chadd & Minnette, P.C. Crawfordsville, Indiana

IN THE COURT OF APPEALS OF INDIANA

KELLY LEE MUNCY, KENDRA MARIE ) VONDERSAAR, KAREN KAY MUNCY and ) KIM SUE MUNCY, ) ) Appellants-Defendants, ) ) vs. ) No. 32A04-1203-OV-134 ) TOWN OF AVON, INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE HENDRICKS SUPERIOR COURT The Honorable David H. Coleman, Judge Cause No. 32D02-1104-OV-9

January 15, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge STATEMENT OF THE CASE

Kelly Muncy, Kendra Marie Vondersaar, Karen Kay Muncy, and Kim Sue Muncy

(collectively “the Muncys”) appeal the trial court’s judgment following a bench trial that

the use of their property for open storage violates an Avon Zoning Ordinance. The

Muncys present four issues for review, which we consolidate and restate as the following

dispositive issues:

1. Whether the Town of Avon (“the Town”) met its burden to show that the Muncys violated an Avon Zoning Ordinance regarding open storage.

2. Whether the Town provided adequate notice to the Muncys of the alleged zoning code violations.

We affirm. FACTS AND PROCEDURAL HISTORY

In 1957, Hendricks County enacted a countywide zoning ordinance to govern the

use of real property in its jurisdiction. That zoning ordinance became effective in 1958.

Sometime in 1960, the Muncys’ father, Ed Muncy, purchased property in Hendricks

County that is now known as 258 Production Drive in Avon (“the Property”). The

Muncys now collectively own that parcel.

At the time of the purchase, the property did not lie in an incorporated area. But in

1995, the town of Avon was incorporated, including within its jurisdiction the Property,

and in 1996 the Town passed a zoning ordinance. The Property lies in Avon in an area

zoned I-2 Light Industrial. That zoning classification limits outdoor storage to the rear

yard of the lot and to less than ten percent of the lot.

2 Since at least 2008, the Muncys have stored numerous items in the open space on

the Property, not just in the rear yard. Items in the open space include, among other

things, passenger and other vehicles, some of which do not appear operable; five to six

semitrailers that do not appear to be roadworthy; used lumber; scrap metal; BPC and

black pipe; numerous 55-gallon drums; plastic containers and buckets; used tires without

rims; a refrigerator; the top half of a mini-barn; and other miscellaneous debris. On June

4, 2008, the Town issued a Notice of Ordinance Violation to Kelly Muncy (“the First

Notice”) at the Property’s address, stating that the use of the Property violated Avon

Zoning Ordinance Table 12-2. In relevant part, that notice states that “open storage

requires a special exception in an I-2 zoning district” and that “such storage is limited to

10% of the lot and only within the rear yard.” Appellant’s App. at 16. The First Notice

also describes remedy options and provides that Kelly Muncy had ten days from the

receipt of the First Notice to remedy the zoning violation “or provide a timeline

acceptable to the Zoning Administrator for said violation to be corrected[.]” Id. And the

First Notice provides that Kelly Muncy could appeal the citation to the Avon Board of

Zoning Appeals within ten days of receipt of the First Notice.

On October 21, 2008, the Town issued a Citation for Avon Zoning Ordinance

Violation (“the Citation”) to Kendra Vondersaar at the Property’s address. Referring to

the First Notice, the Citation states that the Property’s use violated the open storage limits

“in an I-2 District (Table 12-2)[.]” Id. at 17. The Citation also provides that the Town

did not accept the timeline previously provided for remedying the violation and imposes

a fine each day until the violation is corrected.

3 On August 21, 2009, the Town issued a second Notice of Ordinance Violation,

Notice to Correct (“the Second Notice”) to each of the four owners of the Property at the

Property’s address. The Second Notice is in all material respects identical to the First

Notice. Like the First Notice, the Second Notice provides, in relevant part: “If this

Notice of Violation aggrieves you, you may appeal the citation to the Avon Board of

Zoning Appeals within ten (10) days from the receipt of this notice.” Id. at 19. Also on

August 21, the Town Manager sent a letter to Kendra Vondersaar, summarizing a

meeting with the Muncys regarding their use of the property.

According to the Muncys, the Town of Avon initiated an action against the

Muncys in the Town Court of Avon (“the Town Court”) sometime in November 2010.1

On March 3, 2011, the Town Court issued an order stating that the issue before it was

whether the Muncys had violated the Town’s zoning ordinance regarding open storage or

whether their non-conforming use had been “grandfathered in.” Clerk’s Verified

Response to Writ of Certiorari, Exhibit A. The Town Court concluded that the Muncys’

use was not a legal non-conforming use nor was it grandfathered in.

The Muncys filed a notice of appeal in the Town Court, in response to which the

Town Court transferred the case to the Hendricks County Clerk’s Office. On February 9,

1 There were gaps in the record submitted on appeal. The record originally filed on appeal does not show exactly how the proceedings in the trial court were initiated. We issued a Rule to Show Cause to the Muncys asking for further procedural history. Upon receiving their report, we issued a Writ of Certiorari to the Hendricks Superior Court Clerk requesting additional documentation. Between the two responses we gleaned the basics of the procedural background of this case. Additionally, we note that, in their October 2012 report to this court, the Muncys indicate that the action was initiated in November 2011, but also that the last notice of violation was issued in August 2009, “which was nine (9) months after the Town Court Action was initiated[.]” Report to Court at 2. The Muncys do not explain the internal conflicts in the report. Resolution of the issues raised on appeal does not depend on the accuracy of the dates in the procedural history here, but we remind counsel that the appellant bears the burden of presenting a complete and clear record for appeal. 4 2012, a bench trial was held on the issue of whether the Muncys had violated the Town’s

zoning ordinance regarding open storage or “whether the [Muncys’] use of their property

is ‘grandfathered in’ as a non-conforming use[.]” Appellant’s App. at ii.2 At the close of

the Town’s case, the Muncys moved for judgment on the evidence. The trial court took

the matter and the Muncys’ motion under advisement. And on February 17, the court

issued an order denying the Muncys’ motion and entering judgment in favor of the Town

(“the Judgment”). The Judgment provides, in relevant part:

The issue before the court is whether or not the defendants [Muncys] have violated the Town of Avon’s zoning ordinance regarding open storage or whether or not the defendants’ use of their property is “grandfathered in” as a non-conforming use[.]

The defendants, or their father, have owned the property located at 258 Production Drive, Avon, Indiana since approximately 1960. The property is now located within the Town of Avon, Indiana[,] that was incorporated as a town on November 30, 1995.

On June 4, 2008, the Town of Avon issued an ordinance violation to the defendants for open storage violation. Specifically, the Town of Avon alleges the property is being used as a “junk yard” not allowed under the current I-2 zoning classification and is in violation of the open storage percentage stated in Table 12-2 of the Industrial Districts Accessory Use Matrix. Open storage is limited to no more than 10% of the total area of the property. A variance or special exemption permit is required for a junk yard or open storage for more than 10%. The defendants have not appealed to the Avon Board of Zoning Appeals or otherwise sought a variance or special exemption permit. Instead, they argue that they are not subject to Avon’s zoning ordinance, but are grandfathered in as a non-conforming use under Hendricks County’s zoning ordinance.

2 Indiana Appellate Rule 51(C) provides in relevant part: “All pages of the Appendix shall be numbered at the bottom consecutively . . . .” Appellant’s Appendix numbers only the first page of the Judgment and the Chronological Case Summary, using lower case Roman numerals. Thereafter, the Appendix is numbered chronologically in Arabic numerals. As a result, not all of the pages of the Appendix are numbered, and the form of numbering changes after several pages. We remind Appellant’s counsel to comply with this rule in the future. 5 The court finds from the evidence that the Hendricks County Zoning Ordinance was originally enacted in 1957 and went into effect on January 1, 1958. The defendant’s property was a vacant lot on January 1, 1958. Therefore, it was not being used in the same manner it is now being used by the defendants. The defendants’ argument that the property is grandfathered in either under the Hendricks County Zoning Ordinance or the Avon Zoning Ordinance enacted in 1996 has no merit.

The defendants are subject to the current Town of Avon ordinance including the Zoning ordinance. The court finds that the open storage use by the defendants was and is not a legal use either in 1958 under the Hendricks County Zoning Ordinance or a legal use under the 1996 Avon Zoning Ordinance.

The defendants’ use of the property located at 258 Production Drive, Avon, Indiana[,] is a violation of the Town of Avon’s Zoning Ordinance. The court finds the violation and penalty under the ordinance began on October 11, 2008[,] in the amount of $100.00 and each day thereafter is a distinct and separate violation pursuant to the Avon Zoning Ordinance. The Town of Avon may recover total accumulated fines pursuant to the ordinance.

Appellant’s App. at 1-3. The Muncys now appeal.

DISCUSSION AND DECISION

Initially, we note that neither party requested special findings of fact under Trial

Rule 52(A), but the trial court entered such findings sua sponte. Sua sponte findings

control only the issues they cover, and a general judgment will control as to the issues

upon which there are no findings. Estudillo v. Estudillo, 956 N.E.2d 1084, 1089-90

(citation omitted). When a trial court has made findings of fact, we apply a two-tier

standard of review: whether the evidence supports the findings of fact, and whether the

findings of fact support the conclusions thereon. Id. at 1090 (citation omitted). We will

set aside findings only if they are clearly erroneous. Id. “Findings are clearly erroneous

only when the record contains no facts to support them either directly or by inference.”

6 Id. To determine that a finding or conclusion is clearly erroneous, an appellate court’s

review must leave it with the firm conviction that a mistake has been made. Id.

We also observe that, because the Muncys bore the burden of proof at trial, they

are appealing from a negative judgment. Thus, we will reverse that decision only if the

evidence is without conflict and all reasonable inferences to be drawn from the evidence

lead to a conclusion other than that reached by the trial court. Knauff v. Hovermale, 976

N.E.2d 1267, 1269 (Ind. Ct. App. 2012).

Issue One: Sufficiency of Evidence

The Muncys contend that the evidence does not support the trial court’s

conclusion that they are in violation of an open storage Avon Zoning Ordinance. In

particular, the Muncys contend that their use of the Property for open storage is a legal

non-conforming use. They also contend that the trial court applied an incorrect standard

when determining whether theirs is a legal non-conforming use. We address each

contention in turn.

Zoning ordinances are tools used to restrict the use of real property. See Benjamin

Crossing Homeowners’ Ass’n, Inc. v. Heide, 961 N.E.2d 35, 40-41 (Ind. Ct. App. 2012).

Indiana case law provides that the right of a municipality to enact zoning restrictions is

subject to vested property interests acquired prior to enactment of zoning ordinances. See

Jacobs v. Mishawaka Bd. of Zoning Appeals 182 Ind. App. 500, 395 N.E.2d 834, 836

(1979). An ordinance prohibiting any continuation of an existing lawful use within a

zoned area is unconstitutional as a taking of property without due process of law and as

an unreasonable exercise of police power. Town of Avon v. Harville, 718 N.E.2d 1194,

7 1197 (Ind. Ct. App. 1999), trans. denied. The phrase “non-conforming use” is defined as

a use of premises which lawfully exists prior to the enactment of a zoning ordinance and

which is allowed to be maintained or continued after the effective date of the ordinance

although it does not comply with the use restrictions applicable in the area. Jacobs, 395

N.E.2d at 835-36. A person who claims a legal non-conforming use has the burden of

establishing his claim. Harville, 718 N.E.2d at 1198. Once a legal non-conforming use

has been established, the burden of proving the termination of that use by abandonment

or discontinuance rests on those opposing the non-conforming use. Id.

Here, the Muncys first contend that their use of the Property for outside storage

was a legal non-conforming use. In support, they maintain that the Town admitted as

much in an August 21, 2008, letter from the Town Manager to Kendra Vondersaar. That

letter provides:

This letter is to follow[ ]up on our meeting of July 23, 2008. At this meeting we discussed the following timeline for getting the property located at 258 Production Drive into compliance with the Town of Avon’s ordinances . . . .

Nothing in this letter will exclude the legal non-conforming status of the asphalt and excavating business currently in operation. In the event that you fail to meet a benchmark, the Town will send a 10[-]day notice. If you can’t get caught up in that time, you may be subject to fines as detailed in Section 19-5.3B of the Avon Zoning Ordinance, which range from $100 a day to $2500 per day based on the number of days the property is in violation, and the Town has the right to come on to [sic] your property and clean it up as we wish.

Appellant’s App. at 27.3

3 The omission in this quote constitutes the redacted portion of the letter. 8 We disagree with the Muncys’ interpretation of that letter. The Town conceded

that the “asphalt and excavating business currently in operation” on the Property

constituted a “legal non-conforming” use. Id. But no part of the letter provided in the

Appellant’s Appendix refers to the use of the Property’s outside, open storage area as a

legal non-conforming use. Further, the record shows that the Muncys use almost the

entirety of the outside area of the Property to store passenger and other vehicles, some of

which do not appear operable; five to six semitrailers that do not appear to be

roadworthy; used lumber; scrap metal; BPC and black pipe; numerous 55-gallon drums;

plastic containers and buckets; used tires without rims; a refrigerator; the top half of a

mini-barn; and other miscellaneous debris. The Muncys do not argue that any of these

materials are necessary for the asphalt and excavating business.

The Muncys had the burden to show a legal non-conforming use. Harville, 718

N.E.2d at 1198. The August 21, 2008, letter from the Town Manager does not satisfy

that burden.4 The Muncys have not shown that the evidence is insufficient to support the

trial court’s conclusion that their use of the Property is not a legal non-conforming use.

The Muncys also contend that the trial court “applied an improper standard to

determine in its ruling that the Muncys[’] use of 258 Production Dr[ive] was in violation

of the Town of Avon ordinance limiting outside storage[.]” Appellant’s Brief at 14. The

Muncys observe that Production Drive did not even exist in 1958 and that the Muncys

did not own the property that eventually became Production Drive until 1960. As a

result, the argument continues, they were not subject to the Hendricks County Ordinance

4 For the same reason, the Muncys’ equitable estoppel argument must fail. 9 because Production Drive did not exist in 1958. Alternatively, they maintain that their

use of the Property was a permitted use under the county zoning ordinance. We cannot

agree with either contention.

In that regard, the Muncys point to the following findings:

The Court finds from the evidence that the Hendricks County Zoning Ordinance was originally enacted in 1957 and went into effect on January 1, 1958. Therefore, it is not being used in the same manner it is now being used by the defendants, (Muncys). The defendants[’] (Muncys[’]) argument that the property is grandfathered in either under the Hendricks County Ordinance or the Avon Zoning Ordinance enacted in 1996 has no merit.

The defendants (Muncys) are subject to the current Town of Avon ordinances including the Zoning Ordinance. The court finds that the open storage use by the defendants (Muncys) was and is not a legal use either in 1958 under the Hendricks County Ordinance or a legal use under the 1996 Avon Zoning Ordinance.

Appellants’ App. at ii(b-c). The Muncys’ predecessor in title took ownership of the

Property in 1960. Although Production Drive was not yet in existence when Ed Muncy

bought it, the Property is located within Hendricks County. As such, the Property was

subject to the Hendricks County Ordinance when he purchased it in 1960. Thus, we next

consider whether their current use of the Property, if in existence in the 1960s, would

have violated the county zoning ordinance.

The Muncys point to testimony from Albert Salzman, the Director of Planning and

building for the Town of Avon, in support of their argument that the trial court applied an

incorrect standard. But the question to Salzman they cite was whether the Muncys’

current use of the property would have violated a 1959 county ordinance. Salzman

testified as follows:

10 Q: . . . [A]ccording to this Exhibit “F,” [the Hendricks County Zoning Ordinance as amended in 1959,] an industrial use is one that requires both buildings and open area for manufacturing, fabricating, processing, heavy repairing, dismantling, storage or disposal of raw materials, manufactured products or waste. What about the operation of the Muncys varies from that description?

A: The use at the site would be consistent with that description.

Transcript at 47; Appellant’s App. at 11.

Again, the Muncys had the burden to show that their current use of the Property

for open storage has existed for some time, was lawful under the relevant zoning

ordinance when it began, and was allowed to be continued after the effective date of the

relevant Town ordinance even though it does not comply with that ordinance. See

Jacobs, 395 N.E.2d at 835-36; Harville, 718 N.E.2d at 1198. The Muncys have pointed

to no evidence of how the Property was used when they purchased it, when it was subject

to the Hendricks County zoning ordinance. And evidence in the record shows that the

current use of the Property is not the same as the use in the 1960s. Exhibit F in the record

contains aerial photographs taken of the Property and surrounding area in 1958 and 1967.

Those photographs show that the Property was vacant and not developed in both 1958

and 1967, when it would have been subject to the county zoning ordinance. The Muncys

have not shown that their use of the Property was legal under the county zoning

ordinance before the Town of Avon was incorporated.

Nor have the Muncys pointed to any evidence in the record to show how the

Property was used at any time afterward until the time the notices of violation were

issued in this case. As a result, the Muncys have not shown that their current use of the

Property for extensive open storage was a lawful use in existence when the Avon Zoning 11 Ordinance was enacted in 1996. See Jacobs, 395 N.E.2d at 835-36; Harville, 718 N.E.2d

at 1198. Thus, their argument that the trial court applied an incorrect standard is without

merit. The Muncys have not shown that the trial court clearly erred when it rejected their

claim of a legal non-conforming use.

Issue Two: Adequacy of Notice

The Muncys also contend that the Town failed to give them adequate notice of the

alleged zoning code violations. Specifically, they assert that the Town “failed to identify

what actions or lack thereof did the Muncys engage in which changed their status from a

legal nonconforming use to a status that now subjects the Muncys to an ordinance that

did not exist when the Muncys acquired title” to the Property. Appellant’s Brief at 19.

We have already determined that the Muncys have not met their burden of showing a

legal non-conforming use of the Property. Therefore, this argument is without merit.

The Muncys also contend that the trial court erred when it ordered the penalties to

accrue from the date of the First Notice, which was served on only one of the four

Muncys. They also point out that adequate notice is required by statute, Indiana Code

Section 36-1-6-2(a), and by due process. But we need not reach these arguments because

the Muncys do not demonstrate by citation to the record that they preserved this issue for

appeal by raising it to the trial court. It is well-settled that a party may not raise a new

argument for the first time on appeal. Evans v. Thomas, 976 N.E.2d 125, 128 (Ind. Ct.

App. 2012). Thus, the argument is waived.

12 Conclusion

The Muncys did not meet their burden to show that their use of the Property is a

legal non-conforming use. Nor have they shown that the trial court applied an incorrect

standard when it determined that their use of the Property for open storage violates an

Avon Zoning Ordinance. Finally, the Muncys have not shown that the Town’s notice of

the violations was inadequate. Therefore, the Muncys have not shown that the trial

court’s determination that they violated an Avon Zoning Ordinance and imposing

penalties is clearly erroneous.

Affirmed.

KIRSCH, J., and MAY, J., concur.