Richard J. Mahoney v. Kevin Wolfe and Maxine Wolfe (mem. dec.)

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Nov 10 2020, 8:23 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE David R. Phillips James L. Clement, Jr. Shaw Law Office Clement Law Firm LLC Valparaiso, Indiana Crown Point, Indiana

IN THE COURT OF APPEALS OF INDIANA

Richard J. Mahoney, November 10, 2020 Appellant-Plaintiff, Court of Appeals Case No. 20A-CT-748 v. Appeal from the Lake Superior Court Kevin Wolfe and Maxine Wolfe, The Honorable John M. Sedia, Appellees-Defendants Judge Trial Court Cause No. 45D01-1903-CT-327

Crone, Judge.

Case Summary [1] Kevin and Maxine Wolfe obtained a building permit for and erected a shed on

their property. Their neighbor, Richard J. Mahoney, filed a complaint alleging

Court of Appeals of Indiana | Memorandum Decision 20A-CT-748| November 10, 2020 Page 1 of 14 that the shed’s location violates the local zoning ordinance and therefore is a

nuisance. After a bench trial, the court found no zoning violation and entered

judgment for the Wolfes. Mahoney now appeals, arguing that the trial court

erred. We affirm.

Facts and Procedural History [2] The relevant facts most favorable to the trial court’s judgment are as follows.

Mahoney lives in a residence in Whiting that is situated on Lot 6 of the

subdivision plat. The Wolfes own Lot 7, which abuts the western boundary of

Lot 6. The Wolfes also own Lot 8, which abuts the southern boundary of Lots

6 and 7. A north-south bicycle trail runs near the western boundary of Lots 7

and 8, and to the west of the trail is Wolf Lake. The Wolfes’ residence takes up

roughly the western half of Lot 8. This is a plat survey of the lots:

Court of Appeals of Indiana | Memorandum Decision 20A-CT-748| November 10, 2020 Page 2 of 14 Ex. Vol. at 12 (Plaintiff’s Ex. 3).

[3] In the summer of 2018, a contractor hired by the Wolfes used this survey to

apply for a building permit from the City of Hammond Building Department to

install an eleven-by-thirteen-foot concrete pad on Lot 7. The contractor showed

Department employees the planned location of the pad with the hand-drawn

rectangle with an “X” shown above. See Tr. Vol. 2 at 66 (Kevin testifying that

Court of Appeals of Indiana | Memorandum Decision 20A-CT-748| November 10, 2020 Page 3 of 14 the contractor “asked for a plat of survey from us, and then he drew where the

plot was going to be and turned that in to the City of Hammond.”). In August

2018, the Department issued a permit for the pad, which was installed soon

afterward. Later that year, Kevin used the same survey to apply for a building

permit to erect a ten-by-twelve-by-ten-foot shed on the pad. In November 2018,

the Department issued a permit for the shed, which was erected later that year.

[4] In March 2019, Mahoney filed a complaint against the Wolfes, alleging that

their erection of the shed deprived him “of the fair enjoyment of his land by

maliciously obstructing his lake view” and that the shed is a nuisance because it

“violates the Hammond City Zoning Ordinance which prohibits accessory

buildings from being [in] side yards.” Complaint at 3. 1 Wolfe requested “an

order requiring [the Wolfes] to abate the nuisance by removing the shed.” Id.

In March 2020, after a bench trial, the trial court issued an order that reads in

relevant part as follows:

The relevant part of Ordinance 8514, the City of Hammond Zoning Ordinance, provides, in Section 18.60, the following:

… B. In residential districts detached accessory buildings shall not be erected in any yard, except a back [sic 2] yard.

1 Mahoney’s appendix does not contain a copy of his complaint, which we obtained from the Odyssey case management system. We remind Mahoney’s counsel that an appellant’s appendix “shall contain” copies of “pleadings and other documents from the Clerk’s Record … that are necessary for resolution of the issues raised on appeal[.]” Ind. Appellate Rule 50(A)(2)(f). The trial court’s order does not mention either “nuisance” or “abatement,” and thus Mahoney’s complaint provides crucial context for his appeal. 2 Mahoney notes that the zoning ordinance actually uses the term “rear yard.” Appellant’s App. Vol. 2 at 13.

Court of Appeals of Indiana | Memorandum Decision 20A-CT-748| November 10, 2020 Page 4 of 14 … D. No detached accessory building shall be located closer than 10 feet (3.05 m) to any main building no[r] … closer than 3 feet (.91 m) to any lot line.

No probative evidence was presented at trial that the shed was closer than 3 feet from the lot line. The lot upon which the shed was built had no buildings upon it at all, so, by definition, the lot could not have a back, side or front yard, and the 10 foot distance requirement from a main building could not apply. The location of the shed was in compliance with the Hammond Zoning Ordinance.

Appealed Order at 2. Accordingly, the trial court entered judgment in favor of

the Wolfes. Mahoney now appeals.

Discussion and Decision [5] Mahoney contends that the trial court erred in concluding that the shed’s

location complies with the zoning ordinance. As the party who bore the burden

of proof at trial, Mahoney appeals from a negative judgment. Universal Auto,

LLC v. Murray, 149 N.E.3d 639, 642 (Ind. Ct. App. 2020). He “may prevail on

appeal only upon establishing that the judgment is contrary to law.” Estate of

Kappel v. Kappel, 979 N.E.2d 642, 651 (Ind. Ct. App. 2012). “A judgment is

contrary to law if the evidence is without conflict and all reasonable inferences

to be drawn from the evidence lead only to a conclusion opposite that reached

by the trial court.” Giltner v. Ivers, 954 N.E.2d 1035, 1040 (Ind. Ct. App. 2011).

[6] The sum and substance of Mahoney’s argument, which takes up slightly more

than one page of his eight-page brief, is this: “The undisputed evidence shows

that the Wolfs [sic] place [sic] their shed in the side yard of their home, despite Court of Appeals of Indiana | Memorandum Decision 20A-CT-748| November 10, 2020 Page 5 of 14 receiving a permit to put it in their back yard. Their placement of the shed

shows a clear violation of the ordinance.” Appellant’s Br. at 6. Mahoney offers

nothing more than this conclusory allegation in attempting to establish that the

Wolfes erected the shed in their side yard, as opposed to their back/rear yard,

as those terms might be defined by the zoning ordinance. 3 “Bald assertions of

error unsupported by either cogent argument or citation to authority result in

waiver of any error on review.” Pasha v. State, 524 N.E.2d 310, 314 (Ind. 1988).

“It is an elementary rule of appellate practice that the appellant bears the

burden of demonstrating error. We refuse to sift through the record attempting

to locate trial court error so that we might state appellant’s case for him.” 4

Matter of Trust of Loeb, 492 N.E.2d 40, 42 (Ind. Ct. App. 1986) (citation

omitted), trans. denied. Consequently, we affirm. 5

3 We note that the Building Department was fully aware of the proposed location of the Wolfes’ shed and issued a building permit authorizing its erection. As such, it is reasonable to presume that the Department determined that the shed’s location does not violate the zoning ordinance. There is no indication that Mahoney has appealed the Department’s decision to the Lake County Board of Zoning Appeals. 4 Here, the dissent has stated Mahoney’s case for him. Most of the zoning ordinance provisions quoted by the dissent do not appear in the record before us, let alone in Mahoney’s brief. We have no qualms about taking judicial notice of local ordinances or conducting independent research, but we must draw the line at abandoning our role as impartial arbiters and becoming a party’s advocate; this is unfair to the opposing party, who has no opportunity to respond to an argument that the appellant did not make. “In determining whether a party has waived an issue on appeal, we look to whether the brief is so deficient that the reviewing court is required to make a party’s argument upon its behalf.” Shewmaker v. Etter, 644 N.E.2d 922, 930 (Ind. Ct. App. 1994), adopted by Hammes v. Brumley, 659 N.E.2d 1021 (Ind. 1995). Mahoney’s brief meets this threshold, and we decline to make his argument on his behalf. 5 Because Mahoney has failed to establish that the trial court erred in concluding that the shed’s location does not violate the zoning ordinance, we need not address his argument that the alleged violation constitutes a nuisance and that he is entitled to an abatement of that nuisance.

Court of Appeals of Indiana | Memorandum Decision 20A-CT-748| November 10, 2020 Page 6 of 14 [7] Affirmed.

Robb, J., concurs.

Brown, J., dissents with opinion.

Court of Appeals of Indiana | Memorandum Decision 20A-CT-748| November 10, 2020 Page 7 of 14 IN THE COURT OF APPEALS OF INDIANA

Richard J. Mahoney, Court of Appeals Case No. 20A-CT-748 Appellant,

v.

Kevin Wolfe and Maxine Wolfe, Appellees.

Brown, Judge, dissenting.

[8] I respectfully dissent and would reverse and remand. Mahoney argues the

Wolfes’ placement of their shed violates the zoning ordinance. Based upon a

review of the evidence and the ordinance, I agree.

[9] The August 1, 2018 permit listed the type of work as installing a concrete pad

“in the rear of the house.” Defendants’ Exhibit 5. The permit listed parcel

number 26-35-0009-0008 and stated: “This building permit is issued assuming

that all information submitted is true.” Id. The November 21, 2018 permit

described the type of work as: “Installing shed on concrete slab, shed totaling

141 sq ft.” Defendants’ Exhibit 6. The permit listed parcel number 26-35-0009-

0008, did not specify the yard in which the shed was to be installed, and stated:

“This building permit is issued assuming that all information submitted is true.

Court of Appeals of Indiana | Memorandum Decision 20A-CT-748| November 10, 2020 Page 8 of 14 The issuance of this permit does not constitute the approval of any

unauthorized or illegal use.” Id.

[10] City of Hammond Zoning Ordinance No. 8514 provides in part:

Section 18.60 ACCESSORY BUILDINGS

Accessory buildings, except as otherwise permitted in this Ordinance, shall be subject to the following regulations:

*****

B. In residential districts detached accessory buildings shall not be erected in any yard, except a rear yard.

*****

D. No detached accessory building shall be located closer than 10 feet (3.05m) to any main building nor shall it be located closer than 5 feet (1.52m) to any side or rear lot line with eaves, no closer than 3 feet (.91m) to any lot line.

Plaintiff’s Exhibit 1.

[11] The Ordinance also provides:

Yards - The area of each lot in which no building or structure shall be erected. The size of such area is determined by the distance from the property lines to the building lines.

l. Front - The minimum required open space, extending the full width of the lot from the property line to the building line.

2. Side - The minimum required open space extending the full depth of the lot and extending from the side lot line to the nearest point of the main building line.

Court of Appeals of Indiana | Memorandum Decision 20A-CT-748| November 10, 2020 Page 9 of 14 3. Rear - The minimum required open space extending the full width of the lot from the rear lot line to the nearest point on the main building line.

4. Corner Side Yard - A side yard which faces a public street.

City of Hammond Zoning Ordinance No. 8514. 6 It defines “Open Space” as

“[t]he portion of the gross site area that is landscaped or that is usable and

maintained for recreational purposes (including lawns, patios, and usable

rooftops).” Id. “Lot” is defined as “[a] parcel of land occupied or intended for

occupancy by a use permitted in this Ordinance, including one (1) main

building and its accessory buildings, and the open spaces required by this

Ordinance, and having its principal frontage on a street, or an officially

designated and approved place.” Id. “Lot Line, Rear” is defined as a “lot line

which is opposite and most distant from the front lot line and, in the case of an

irregular or triangular shaped lot, a line ten (10) feet (3.05m.) in length within

the lot, parallel to and at the maximum distance from the front lot line.” Id.

“Lot Line, Front” is defined as follows:

In the case of an interior lot, a line separating the lot from the street or place; and in the case of a corner lot, a line separating the narrowest street frontage of the lot from the street, except in

6 While the parties cite to only one portion of the City of Hammond Zoning Ordinance No. 8514, Ind. Evidence Rule 201(a) provides “[t]he court may judicially notice . . . the existence of . . . ordinances of municipalities” and “[a] court may judicially notice a law, which includes . . . codified ordinances of municipalities . . . .”

Court of Appeals of Indiana | Memorandum Decision 20A-CT-748| November 10, 2020 Page 10 of 14 cases where deed restrictions in effect specify another line as the front line.

Id. “Lot Line, Side” is defined as “[a]ny lot boundary line not a front line or a

rear lot line.” Id.

[12] We use the same methodology to interpret ordinances as statutes. Siwinski v.

Town of Ogden Dunes, 949 N.E.2d 825, 828 (Ind. 2011). The first step in

statutory interpretation is determining if the legislature has spoken clearly and

unambiguously on the point in question. Id. If a statute is clear and

unambiguous on its face, no room exists for judicial construction. Id. If

possible, every word must be given effect and meaning, and no part should be

held to be meaningless if it can be reconciled with the rest of the ordinance. Id.

We are not at liberty to construe a facially unambiguous statute. Id. We should

also remember a cardinal rule of statutory construction, which is to “ascertain

the intent of the drafter.” Id. at 829 (quoting State v. Carmel Healthcare Mgmt.,

Inc., 660 N.E.2d 1379, 1386 (Ind. Ct. App. 1996), trans. denied). We can

ascertain intent “by giving effect to the ordinary and plain meaning of the

language used.” Id. (quoting Clifft v. Ind. Dep’t of State Revenue, 660 N.E.2d 310,

316 (Ind. 1995)).

[13] “Our State has recognized that the purpose of zoning ordinances is ‘to confine

certain classes of uses and structures to designated areas.’” Id. (quoting Ragucci

v. Metro. Dev. Comm’n of Marion Cty., 702 N.E.2d 677, 679 (Ind. 1998)). The

City of Hammond Zoning Ordinance No. 8514 provides: “In residential districts

Court of Appeals of Indiana | Memorandum Decision 20A-CT-748| November 10, 2020 Page 11 of 14 detached accessory buildings shall not be erected in any yard, except a rear

yard.” Plaintiff’s Exhibit 1 (emphases added).

[14] We may grant relief from a zoning board’s decision only under certain

circumstances and, “[i]f a court is faced with two reasonable interpretations of

an ordinance, one of which is supplied by an administrative agency charged

with enforcing the ordinance, the court should defer to the agency.” Essroc

Cement Corp. v. Clark Cty. Bd. of Zoning Appeals, 122 N.E.3d 881, 891 (Ind. Ct.

App. 2019) (quoting Hoosier Outdoor Advert. Corp. v. RBL Mgmt., Inc., 844 N.E.2d

157, 163 (Ind. Ct. App. 2006), trans. denied), trans. denied. However, neither the

trial court nor the Wolfes cite authority for extending such deference to the

mere approval of a building permit when a plan commission or board of zoning

appeals does not further provide an interpretation of an ordinance. Under the

phrase “APPROVED BY” and above the phrase “Building Department” on the

building permit approving the installation of the shed, the signature displayed is

upside down, suggesting at the least that the signature was applied using a

stamp. Defendants’ Exhibit 6. Further, the building permit for the shed

expressly states that its issuance “does not constitute the approval of any

unauthorized or illegal use.” Id.

[15] The Ordinance clearly forbids the placement of detached accessory buildings

“in any yard, except a rear yard.” Plaintiff’s Exhibit 1 (emphasis added). I would

conclude that the Ordinance is not ambiguous and that the second permit,

submitted for the shed, did not specify in which yard the shed was to be placed.

Court of Appeals of Indiana | Memorandum Decision 20A-CT-748| November 10, 2020 Page 12 of 14 [16] Examining Lot 7 by itself, the record indicates that it is a vacant lot and thus

can have no “rear yard” because the rear yard is defined by the Ordinance with

respect to the main building line or as “[t]he minimum required open space

extending the full width of the lot from the rear lot line to the nearest point on

the main building line.” City of Hammond Zoning Ordinance No. 8514.

Accordingly, an examination of the placement of the shed on the vacant lot

alone, Lot 7, indicates that the placement of the shed was in violation of the

Ordinance. I disagree with the trial court’s reasoning that a shed can be built

anywhere on any vacant lot because it would render meaningless the

Ordinance’s requirement that “detached accessory buildings shall not be erected

in any yard, except a rear yard.” Plaintiff’s Exhibit 1.

[17] Even an examination of Lots 7 and 8 as a single parcel indicates that the

placement of the shed is in violation of the Ordinance. When asked “is there

any way we could interpret where [the shed] is as being in the rear of the

Wolfes’ house,” Mahoney answered in the negative. Transcript Volume II at

21. Maxine testified that her back yard contained a deck that extended all the

way to their property line. During the cross-examination of Kevin, he indicated

that the plat showed that his front door was right where the concrete walk was

located. The testimony of Maxine and Kevin indicates that the front of their lot

was on the part of the lot facing Maiden Lane and where the concrete walk

extends out from the house. This comports with the Ordinance which defines

“Lot Line, Front” as:

Court of Appeals of Indiana | Memorandum Decision 20A-CT-748| November 10, 2020 Page 13 of 14 In the case of an interior lot, a line separating the lot from the street or place; and in the case of a corner lot, a line separating the narrowest street frontage of the lot from the street, except in cases where deed restrictions in effect specify another line as the front line.

City of Hammond Zoning Ordinance No. 8514. If Lots 7 and 8 are considered

together, the front lot line is along Maiden Lane and thus the rear yard, which

is defined by the Ordinance as “[t]he minimum required open space extending

the full width of the lot from the rear lot line to the nearest point on the main

building line,” is to the rear of the house. Id. Applying the definitions in the

Ordinance, the plat reveals that the shed was constructed, if anything, in the

side yard and clearly not the rear yard as required by the Ordinance.

[18] Accordingly, in either scenario, the shed was placed in violation of the

Ordinance. Based upon the foregoing, I would reverse the trial court’s order

and remand for further proceedings. 7

7 While I conclude that the placement of the shed violated the Ordinance, I do not express an opinion as to the extent of Mahoney’s injury or the proper remedy. I also note that the Ordinance provides for variances under certain circumstances.

Court of Appeals of Indiana | Memorandum Decision 20A-CT-748| November 10, 2020 Page 14 of 14