Metropolitan Development Commission v. Everett Powell ( 2020 )

FILED
Dec 14 2020, 9:22 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT APPELLEE PRO SE
Katelyn M. Campbell Everett Powell
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Metropolitan Development December 14, 2020
Commission, Court of Appeals Case No.
Appellant-Plaintiff, 20A-OV-871
Appeal from the Marion Superior
v. Civil Court
The Honorable John Chavis, II,
Everett Powell, Judge
Appellee-Defendant. Trial Court Cause No.
49D05-1809-OV-36984
Tavitas, Judge.
Case Summary
[1] The Metropolitan Development Commission of Marion County, Indiana
(“Commission”) appeals the trial court’s denial of its motion for a permanent
injunction against Everett Powell. We reverse and remand.
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Issue
[2] The Commission raises two issues, which we consolidate and restate as
whether the trial court erred by ruling that the Commission was not entitled to
relief on the basis of the trial court’s interpretation of Section 740-1003(B) of the
Consolidated City of Indianapolis/Marion County Code (“Revised Code”).
Facts
[3] On July 25, 2018, Jeff Vaughn, then a zoning and licensing inspector for the
Department of Business and Neighborhood Services, responded to a complaint
of zoning violations at a residence in Lawrence, Indiana. Lawrence is located
in Marion County. Upon arrival at the residence, owned by Powell, Vaughn
observed the active construction of a deck and an above-ground pool. Vaughn
took photographs of the construction from the public street where he parked
upon arrival. As a result of his training, Vaughn was aware that, in the absence
of an Improvement Location permit, the erection of a pool in excess of 200
square feet or a deck in excess of eighteen inches in height is in violation of the
Revised Code. Vaughn also noted that the edifices appeared to be partially
constructed in the “setback” area of the property—an additional Revised Code
violation. Vaughn ran a check and determined that there was no active
Improvement Location permit for Powell’s residence.
[4] Vaughn walked onto the property and confirmed the violations before speaking
with Powell. Vaughn informed Powell that the deck and pool were in violation
of the Revised Code and that Powell had to cease work immediately. Powell
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asked to speak with Vaughn’s supervisor, and Vaughn provided his supervisor’s
telephone number to Powell. Powell then asked Vaughn to leave, and Vaughn
immediately complied. Vaughn prepared the paperwork for a notice of
violation and “stop-work” order. Because Powell had asked Vaughn to leave
the premises, however, the stop work order and notice were mailed to Powell,
rather than placed on the physical property. Powell claims to have never
received the stop work order.
[5] A follow-up inspection on August 9, 2018, revealed that Powell had continued
construction despite being ordered to cease work. Vaughn observed that the
pool had been removed, that the deck was being dismantled, but also that the
materials from the edifices were still present and which constituted a violation
for storing junk and debris. Vaughn issued citations for three Revised Code
violations: (1) failure to obtain an Improvement Location permit for a deck
exceeding eighteen inches in height; (2) outdoor storage of trash, junk, or
debris; and (3) erection of a detached accessory structure within the required
rear yard setback.
[6] On September 18, 2018, the Commission filed suit against Powell, alleging the
foregoing violations and seeking to enjoin Powell from continuing to violate the
Revised Code. A bench trial was held on November 13, 2019. Vaughn testified
at the trial, and the Commission submitted a series of photographs depicting
Powell’s violations, which the trial court admitted into evidence. Vaughn
testified that many of the photographs were taken from the public right of way,
rather than from Powell’s property.
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[7] On January 27, 2020, the trial court issued an order containing findings of fact
and conclusions thereon in favor of Powell. The order stated, in relevant part:
39. However, Vaughn obtained evidence that supported the
violation by entering Mr. Powell’s property without first
obtaining his permission or an administrative search warrant.
Chapter 740 of the Revised code provides in pertinent part that:
…[I]n no event shall the Administrator, Inspectors
or Law Enforcement Officers have the right to enter
a residential structure or other structures not open to
the public without the permission of the owner or
occupant or an administrative search warrant first
obtained. Prior to entering such residential
structure or other structure not open to the public,
the Administrator, Inspectors or Law Enforcement
Officers shall advise the owner or occupant that
such owner or occupant is not required to grant
entry without the presentation of an administrative
search warrant.
40. Not only did Vaughn not request Powell’s prior permission to
gain entry to his property or present him with an administrative
search warrant, he also failed to advise Powell that [sic] is not
required to grant entry without an administrative search warrant.
41. The chain of events on July 25, 2018 and August 9, 2018 start
with Vaughn’s unlawful entry onto Mr. Powell’s property to
conduct inspections and take photographs for the purposes of
citing Mr. Powell for violations of the Revised Code and to issue
a Stop Work Order. Because of this unlawful entry, the Court
will not consider the photographs and other evidence obtained
for purposes of issuing the citations and Stop Work Order.
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42. The public interest is not served by the issuance of an
injunction to enjoin Powell from violating § 740-1005(A)(2), §
740-1005(A)(3) and § 740-1005(A)(8) of the Revised Code when
the information that forms the basis of the violations was
obtained as a result of an unlawful entry onto Powell’s property.
Appellant’s App. Vol. II pp. 11-12.
[8] On February 25, 2020, the Commission filed a motion to correct error, which
the trial court denied on March 17, 2020. This appeal followed.
Analysis
[9] The Commission contends the trial court erred by ruling that the Commission
was not entitled to relief on its complaint against Powell. The trial court
entered sua sponte findings of fact and conclusions thereon. “Where a trial
court enters findings sua sponte, the appellate court reviews issues covered by
the findings with a two-tiered standard of review that asks whether the evidence
supports the findings, and whether the findings support the judgment.” Steele-
Giri v. Steele, 51 N.E.3d 119, 123 (Ind. 2016). “A finding is clearly erroneous
when there are no facts or inferences drawn therefrom which support it.”
Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind. 2013). We neither reweigh the
evidence nor judge the credibility of the witnesses. Id. We consider only the
evidence and reasonable inferences drawn therefrom that support the findings.
Id. We review the trial court's legal conclusions de novo. Id.[10] The Commission argues that the trial court misinterpreted the Revised Code.
“Matters of statutory interpretation are reviewed de novo.” City of New Albany
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v. Bd. of Commissioners of Cty. of Floyd, 141 N.E.3d 1220, 1223 (Ind. 2020) (citing
Rodriguez v. State, 129 N.E.3d 789, 793 (Ind. 2019)). “This Court ‘presumes that
the legislature intended for the statutory language to be applied in a logical
manner consistent with the statute’s underlying policy and goals.’” Id. (quoting
Nicoson v. State, 938 N.E.2d 660, 663 (Ind. 2010)). Statutory interpretation is a
function for the courts, and our goal in statutory interpretation is to determine,
give effect to, and implement the intent of the legislature as expressed in the
plain language of its statutes. Indiana Ins. Guar. Ass’n v. Smith, 82 N.E.3d 383,
386 (Ind. Ct. App. 2017) (citing Clark Cnty. Drainage Bd. v. Isgrigg, 966 N.E.2d
678, 680 (Ind. Ct. App. 2012)).
[11] “The language of the statute is the best evidence of legislative intent, and all
words must be given their plain and ordinary meaning.” 219 Kenwood Holdings,
LLC v. Properties 2006, LLC, 19 N.E.3d 342, 343 (Ind. Ct. App. 2014) (citing
Erkins v. State, 13 N.E.3d 400, 407 (Ind. 2014)). “Consequently, ‘[i]f the
language of the statute is clear and unambiguous, it is not subject to judicial
interpretation.’” Id. (quoting Hill v. State, 15 N.E.3d 589, 591 (Ind. Ct. App.
2014)).
[12] When reviewing an ordinance, this Court has held:
Interpretation of an ordinance is subject to the same rules that
govern the construction of a state statute. Words are to be given
their plain, ordinary, and usual meaning, unless a contrary
purpose is shown by the statute or ordinance itself. 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
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of the statute. The goal in statutory construction is to determine
and effect legislative intent. Courts must give deference to such
intent whenever possible. Thus, courts must consider the goals
of the statute and the reasons and policy underlying the statute’s
enactment. If the legislative intent is clear from the language of
the statute, the language prevails and will be given effect.
Rollett Family Farms, LLC v. Area Plan Comm’n of Evansville-Vanderburgh Cty., 994
N.E.2d 734, 738 (Ind. Ct. App. 2013) (quoting Hall Drive Ins., Inc. v. City of Fort
Wayne, 773 N.E.2d 255, 257 (Ind. 2002)).
[13] Specifically, the Commission argues that the trial court misinterpreted Section
740-1003(B) of the Revised Code, the full text of which is:
In order to execute inspections, the Administrator, Inspectors
and Law enforcement officers shall have the right to enter upon
any premises at any reasonable time for the purpose of carrying
out their duties in the enforcement of Codes and land use
regulations of Marion County, Indiana, unless the owner or
occupant of the premises refuses to permit entry to the
Administrator, Inspectors or Law Enforcement Officers when
such entry is sought pursuant to this section. In the event of such
refusal, the Administrator may make application to any judge of
the municipal, circuit or superior courts of Marion County,
Indiana, for the issuance of an administrative search warrant.
Such application shall identify the premises upon which entry is
sought and the purpose for which entry is desired. The
application shall state the facts giving rise to the belief that a
condition which is a violation of a Code or land use regulation of
Marion County, Indiana, exists on such premises, or that a
violation in fact exists and must be abated, and that the condition
or violation is not a lawful nonconforming use to the best of the
affiant’s belief. Any warrant issued pursuant to such application
shall order such owner or occupant to permit entry to the
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Administrator, Inspectors or Law Enforcement Officers for the
purposes stated therein. In no event shall the Administrator,
Inspectors or Law Enforcement Officers have the right to enter a
residential structure or other structures not open to the public
without the permission of the owner or occupant or an
administrative search warrant first obtained. Prior to entering
such residential structure or other structure not open to the
public, the Administrator, Inspectors or Law Enforcement
Officers shall advise the owner or occupant that such owner or
occupant is not required to grant entry without the presentation
of an administrative search warrant.
We agree with the Commission that the trial court misinterpreted the plain
language of the Revised Code.
[14] Focusing on the plain text of the Revised Code, it is clear that Vaughn had a
right to enter Powell’s “premises” at a reasonable time for purposes of carrying
out his duties. Powell did not refuse Vaughn’s initial entry onto Powell’s
premises. In order to enter a residential structure, Vaughn would first have
required either Powell’s permission or an administrative warrant. Nothing in
the record suggests, however, that Vaughn ever attempted to enter a structure.
Rather, his inspection took place outdoors, and Vaughn removed himself from
the premises immediately upon being asked.
[15] The trial court’s finding that the events precipitating the citations began with an
unlawful entry conflicts with the evidence offered. There was a complaint
about the violations before Vaughn even arrived at Powell’s residence.
Vaughn’s testimony included the fact that many of the photographs of the
violations were taken from a public street, as the violations were plainly visible
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to Vaughn. Those photographs were taken before Vaughn set foot on the
property. Vaughn did enter Powell’s property without explicit permission or an
administrative warrant, which the Revised Code authorizes. A plain reading of
the Revised Code establishes that these were not circumstances requiring
explicit permission or a warrant. As long as Vaughn was carrying out his duties
at a reasonable time and was not explicitly denied entry by Powell, Vaughn was
permitted to enter Powell’s premises pursuant to the Revised Code.
[16] The language of the statute is clear and unambiguous and must be applied as
such. The trial court erroneously concluded that Vaughn’s initial entry onto
Powell’s premises was unauthorized. Accordingly, the trial court’s denial of the
Commission’s request for a permanent injunction is clearly erroneous.
Conclusion
[17] We find that the trial court’s judgment was clearly erroneous. We reverse and
remand to the trial court with instructions to enter an order consistent with this
opinion.
[18] Reversed and remanded.
Kirsch, J., and Pyle, J., concur.
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