Thomas J. Fenton and Cheryl D. Fenton v. City of Seymour, Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 2, 2016
• Docket: 36A04-1503-OV-136
• Status: Published

Opinion

MEMORANDUM DECISION Feb 02 2016, 8:36 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Jeffrey J. Lorenzo Rodney E. Farrow Lorenzo & Bevers Farrow & Thompson, P.C. Seymour, Indiana Seymour, Indiana

IN THE COURT OF APPEALS OF INDIANA

Thomas J. Fenton and Cheryl D. February 2, 2016 Fenton, Court of Appeals Case No. 36A04-1503-OV-136 Appellants-Defendants, Appeal from the Jackson Superior v. Court The Honorable Bruce Markel, III, Judge City of Seymour, Indiana, Cause No. 36D01-1408-OV-35 & Appellee-Plaintiff. 36D01-1408-OV-36

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 36A04-1503-OV-136 | February 2, 2016 Page 1 of 9 STATEMENT OF THE CASE

[1] Appellants-Defendants, Thomas J. Fenton (Thomas) and Cheryl D. Fenton,

(Cheryl) (collectively, the Fentons), appeal the trial court’s judgment holding

them in violation of the City of Seymour zoning ordinance.

[2] We reverse.

ISSUE

[3] The Fentons raised three issues, one of which we find dispositive and which we

restate as: Whether the trial court properly interpreted that the City of

Seymour’s zoning ordinance is applicable to the paving of a car dealership’s

parking lot.

FACTS AND PROCEDURAL HISTORY

[4] On June 18, 2010, an agent for the Fentons submitted an application for an

improvement location permit to Appellee-Plaintiff, the City of Seymour

(Seymour) to construct a used automobile dealership on the premises. The

application was subsequently granted. The car dealership is located on a lot

situated on a main highway running through Seymour, with a sales inventory

of approximately seventy vehicles. While the majority of the surface lot is

unpaved, it has a small paved lot near the garage, used for customer parking.

After the issuance of the permit, Seymour periodically inspected the site as

improvements occurred to ensure compliance with City Building Codes.

Court of Appeals of Indiana | Memorandum Decision 36A04-1503-OV-136 | February 2, 2016 Page 2 of 9 [5] On June 19, 2013, Seymour issued a Notice of Non-Compliance to the

Fentons, alerting them that the property was not in compliance with the paving

requirements as included in section 157.086(J)(5) of the City’s zoning

ordinance. Seymour offered the Fentons two options to rectify this situation:

“1. Begin [p]aving and covering the lot per Ordinance Specifications. [or] 2.

Apply for a Variance.” (Plaintiff’s Exh. 2). The Fentons failed to comply. On

January 17, 2014, Seymour sent a second Notice of Non-Compliance in which

Seymour noted that “[f]ailure to comply will result in [Seymour] commencing

legal action to insure compliance.” (Plaintiff’s Exh. 3). Again, the Fentons did

not correct the situation.

[6] On August 6, 2014, Seymour filed a Complaint for Infraction against Thomas,

alleging that he was in violation of section 157.086 of Seymour’s zoning

ordinances for his “failure and refusal to pave a parking lot owned by him and

[Cheryl].” (Appellant’s App. p. 7). An identical Complaint was filed by

Seymour against Cheryl. On October 1, 2014, the trial court conducted a bench

trial. On November 20, 2014, the trial court issued its judgment, determining

that Thomas was in violation of § 157.086 of Seymour’s zoning ordinance and

assessing fines of twenty-five dollars per day of non-compliance. The trial court

issued an identical judgment against Cheryl. On December 16, 2014, both

Thomas and Cheryl filed a motion to correct error, which was denied by the

trial court on March 2, 2015.

Court of Appeals of Indiana | Memorandum Decision 36A04-1503-OV-136 | February 2, 2016 Page 3 of 9 [7] The Fentons now appeal. 1 Additional facts will be provided as necessary.

DISCUSSION AND DECISION

[8] The Fentons contend that the trial court erred when it found them in violation

of Seymour’s zoning ordinance. Construction of a zoning ordinance is a

question of law. Flying J., Inc. v. City of New Haven, Bd. of Zoning Appeals, 855

N.E.2d 1035, 1039 (Ind. Ct. App. 2006), trans. denied. Zoning regulations that

inhibit the use of real property are in derogation of the common law and are

strictly construed. Discovery House, Inc., v. Metro Bd. of Zoning Appeals of Marion

Co., 701 N.E.2d 577, 579 (Ind. Ct. App. 1998), trans. denied. Instead, we

construe a zoning ordinance to favor the free use of land and will not extend

restrictions by implication. Saurer Bd. of Zoning Appeals, 629 N.E.2d 893, 898

(Ind. Ct. App. 1994). We review questions of law under a de novo standard

and owe no deference to a trial court’s legal conclusions. Int’l Union of Police

Ass’ns Local No. 133 v. Ralston, 872 N.E.2d 682, 687 (Ind. Ct. App. 2007).

[9] When asked to interpret an ordinance, this court will apply the same principles

as those employed for the construction of statutes. T.W. Thom Constr., Inc. v.

City of Jeffersonville, 721 N.E.2d 319, 324 (Ind. Ct. App. 1999). The cardinal rule

of statutory construction is to ascertain the intent of the drafter by giving effect

to the ordinary and plain meaning of the language used. Id. Thus, we are not

1 It should be noted that Thomas and Cheryl filed a separate notice of appeal. We consolidated both causes of action under a single appellate cause number on September 22, 2015.

Court of Appeals of Indiana | Memorandum Decision 36A04-1503-OV-136 | February 2, 2016 Page 4 of 9 at liberty to construe a statute that is unambiguous. Id. Where possible, every

word must be given effect and meaning, and no part is to be held meaningless if

it can be reconciled with the rest of the statute. Id.

[10] Focusing on section 157.086(J) of the zoning ordinance, the Fentons argue that

they own and operate an automobile dealership, which is exempt from the

provisions of the ordinance. Section 157.086(J) provides, in pertinent part:

(J) Parking and loading space specifications (1) All loading areas and all off-street parking areas for four or more vehicles shall be developed in accordance with the standards of this section, except for one-and two-family dwellings, agricultural and rural uses and storage of vehicular merchandise not counting toward the minimum requirements of this chapter. *** (5) All open off-street parking and loading areas, including driveways and other circulation areas, shall be surfaced with an all-weather paving material capable of carrying a wheel load of 4,000 pounds, or improved with concrete or a compacted macadam base and surfaced with an asphalted pavement, to adequately provide a durable and dust- free surface which shall be maintained in good condition and free of weeds, dirt, trash and debris. Parking spaces associated with one-or two-family dwelling are exempt from the paving requirements but shall be maintained with a dust-free surface. (Defendant’s Exh.).

[11] Pointing toward the “except” language in subsection (J)(1), the Fentons

contend that its business is properly categorized as the “storage of vehicular

merchandise” and therefore the lot is not subject to the paving requirements

included in subsection (J)(5).

Court of Appeals of Indiana | Memorandum Decision 36A04-1503-OV-136 | February 2, 2016 Page 5 of 9 [12] Initially, we note that “storage of vehicular merchandise” is not defined in the

zoning ordinance. Undefined words in a statute or ordinance are given their

plain, ordinary, and usual meaning. 600 Land, Inc. v. Metropolitan Bd. of Zoning

Appeals of Marion Co., 889 N.E.2d 305, 309 (Ind. 2008). In their application, the

Fentons alerted Seymour that it was their intention to build an automobile

dealership on the lot, with its principal use to store, display, and offer vehicles

for sale. Relying on the common meaning, it is difficult to envision an

automobile dealership not falling within the ordinance’s phrase of “storage of

vehicular merchandise.”

[13] Section (A) of ordinance 157.086 defines the “[p]urpose and [i]ntent” of the

ordinance, stating, in particular:

Accessory off-street parking . . . shall be provided and maintained for all buildings . . . . These regulations are designed to alleviate or prevent congestion of the public streets by establishing minimum requirements for on- site storage of motor vehicles in accordance with the use to which the property is occupied. City of Seymour, Ind. Code § 157.086(A) (emphasis added).

[14] Section (D) describes in detail “[p]arking standards” and the minimum width

and length requirements in accordance with “[v]ehicle, space type.” It also

details minimum “[p]arking [a]isle [w]idths” in accordance with the “[p]arking

angle” of the off-street parking location. Id. § 157.086(D). This section requires

that “[a]ll off-street parking . . . shall be designated with appropriate means of

vehicular access to a street or ally in a manner that least interferes with traffic

movement.” Id.

Court of Appeals of Indiana | Memorandum Decision 36A04-1503-OV-136 | February 2, 2016 Page 6 of 9 [15] Section (E) describes “[m]inimum off-street parking space requirements.” This

section details how to calculate “the minimum required number of off-street

parking or loading spaces.” Id. §157.086(E). Sections (H) and (I) describe,

respectively, “stacking” parking spaces, such as for a bank teller lane or a car

wash, and accessible parking for physically challenged persons. Id. §

157.086(H), (I). And subsection (K) describes alternatives to off-street parking.

[16] Further, section (L)(1) states:

Accessory off-street parking facilities . . . shall be utilized solely for the parking of passenger automobiles . . . of patrons, occupants or employees of specified uses. Such parking facilities shall not be used for the storage, display, [or] sales . . . of any vehicle, equipment or material. [17] All of those sections inform the interpretation of section (J), which is at issue in

this appeal. Section (J) then further describes various other off-street parking

specifications. As stated above, section (J)(1) requires “all . . . off-street parking

areas for four or more vehicles [to] be developed in accordance with this

section, except for one- and two-family dwellings, agricultural and rural uses

and storage of vehicular merchandise not counting toward the minimum

requirements of this chapter.” Section (J)(5) then requires off-street parking

spaces to be paved.

[18] Seymour also asserts that the “paving requirement set out in § 157.086(J)(5)

plainly applies to ALL off-street parking areas . . . [t]here are no exceptions for

automobile dealerships.” (Appellee’s Br. p. 4). In effect, Seymour asserts that

subsection (5) should be read independently from subsection (1). Again, we

Court of Appeals of Indiana | Memorandum Decision 36A04-1503-OV-136 | February 2, 2016 Page 7 of 9 disagree. The meaning of a single subsection of an ordinance is to be

considered with other subsections of the same section and within the same

chapter. See e.g., Raider v. Pea, 613 N.E.2d 870, 872 (Ind. Ct. App. 1993). We

do not construe one provision of an ordinance in isolation; rather we consider

an ordinance as a whole and consider a single provision in reference to the

other provisions. See id. Likewise, two statutory provisions covering the same

subject are to be harmonized if possible. Id. The numerous sections in

ordinance 157.086 thoroughly demonstrate that the ordinance exists to regulate

off-street parking and to facilitate the flow of traffic on public streets. The

ordinance does not regulate a car dealership’s display of vehicular merchandise.

[19] However, insofar as Seymour contends that section (J)(1) is ambiguous, section

(L)(1) expressly dispels any such ambiguity. Section (L)(1) states that off-street

parking facilities are for a business’ “patrons” and “shall not be used for the

storage, display, [or] sales . . . of any vehicle, equipment or material.” In other

words, the paving requirement under Section 157.086 not only applies to off-

street parking facilities but also expressly excludes property used to display a

dealer’s vehicular inventory offered for sale.

[20] In sum, section (J)(1) expressly clarifies that “[a]ll loading areas and all off-

street parking areas for four or more vehicles shall be developed in accordance

with the standards of this section, except …storage of vehicular merchandise[.]”

(emphasis added). Accordingly, an automobile dealership, as a storage of

vehicular merchandise, is exempt from the paving requirements of subsection

Court of Appeals of Indiana | Memorandum Decision 36A04-1503-OV-136 | February 2, 2016 Page 8 of 9 (J)(5) and the minimum requirements of chapter 157.086. As a result, we

reverse the trial court’s judgments against Thomas & Cheryl Fenton. 2

CONCLUSION

[21] Based on the foregoing, we reverse the trial court’s judgment because an

automobile dealership is not subject to the paving requirements of Seymour’s

zoning ordinance.

[22] Reversed.

[23] Najam, J. and May, J. concur

2 Seymour also assert that the trial court’s judgment should be affirmed because the “Fentons failed to exhaust their administrative remedies. However, because Seymour failed to raise this argument before the trial court and now asserts it for the first time on appeal, Seymour has waived the argument for our review. See, e.g., Felsher v. Univ. of Evansville, 755 N.E.2d 589, 593 n.6 (Ind. 2001). Moreover, it should be noted that the parties were in the trial court because Seymour filed suit against the Fentons, not because the Fentons filed suit against Seymour. Thus, Seymour’s argument in essence seems to be that the Fentons are not permitted to respond to a complaint filed against them. We reject that proposition.

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