Virginia Novak v. Porter County Board of Zoning Appeals and William Gremp (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Sep 09 2019, 8:49 am
regarded as precedent or cited before any
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
Patrick B. McEuen PORTER COUNTY BOARD OF
McEuen Law Office ZONING APPEALS
Portage, Indiana Nathaniel C. Henson
Rhame Elwood & McClure
Portage, Indiana
ATTORNEY FOR APPELLEES
WILLIAM GREMP, TAMMIE
CHAMPIE, ROBERT SHUDICK,
SHARON SHUDICK, JERRY
UITERMARKT, KEITH ELLIS,
KRISTIN ELLIS, ED LAURIDSON,
MARCIA LAURIDSON, AND
NEAL MOLENGRAFT
Charles F.G. Parkinson
Harris Welsh & Lukmann
Chesterton, Indiana
IN THE
COURT OF APPEALS OF INDIANA
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Virginia Novak, September 9, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-MI-3134
v. Appeal from the
Porter Superior Court
Porter County Board of Zoning The Honorable
Appeals, Roger V. Bradford, Judge
Appellee-Plaintiff, Trial Court Cause No.
64D01-1710-MI-9592
and
William Gremp, Tammie
Champie, Robert Shudick,
Sharon Shudick, Jerry
Uitermarkt, Keith Ellis, Kristin
Ellis, Ed Lauridson, Marcia
Lauridson, and Neal Molengraft,
Appellees-Intervenors
Vaidik, Chief Judge.
Case Summary
[1] Virginia Novak owns a fifty-acre homestead in Valparaiso that includes a
private road used by her neighbors to access their homes. In 2017, Novak
began regrading and transporting fill onto part of her property, including along
the private road. The Porter County Board of Zoning Appeals (BZA) filed a
complaint for injunctive relief, alleging that Novak violated an ordinance that
requires property owners to obtain a permit before engaging in land-disturbing
activities affecting more than 10,000 square feet. The trial court granted the
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injunction, enjoining Novak from transporting fill onto her property and
ordering her to remove any fill that was placed along the private road. Novak
now appeals, arguing that she is exempt from the ordinance’s permit
requirement. Because the trial court correctly found that the permit
requirement applies to Novak, we affirm.
Facts and Procedural History
[2] Novak owns fifty acres of land on West Joliet Road in Porter County, Indiana.
She has lived there since 1968. Her property includes a sixteen-foot-wide access
easement (the “private road”) that runs north and south along her entire
western property line. The private road is the only way that Novak’s neighbors,
who live north of her property, can access their homes. To the west of her
property, there is a farm, which was maintained as pasture until about ten years
ago. Novak’s property is lower than the farm, and ground water has always
flowed from the farm, across the private road, into Novak’s backyard, where it
then drains into a ditch. In 2009, the owner of the farm passed away, and his
heirs began leasing the land to a farmer, who rotates between corn and
soybeans.
[3] After the farm became active, Novak noticed that her backyard and low-lying
areas in the northern part of her property began eroding. In June 2017, Novak
decided to repair her property. She had fill dirt delivered and began regrading
and filling the northern part of her property, including along the private road.
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[4] On June 23, Michael Novotney, Porter County’s engineer, investigated a
complaint that Novak was engaged in land-disturbing activities on her property.
Novotney visited Novak’s property and saw that between 20,000-25,000 square
feet of soil had been stockpiled. Novotney reported what he had seen to the
director of Porter County’s Department of Development and Storm Water
Management, who decided to issue a stop-work order. On June 26, Novak
received the stop-work order. On July 5, Novotney did a follow-up visit and
spoke with Novak, explaining that a permit was required for land-disturbing
activities. She responded that she “didn’t intend to do any harm” and that she
was “going to grade everything out and fill.” Tr. p. 22. Novotney saw that
since his first visit, additional material had been brought in and stockpiled on
Novak’s property, including “stone and some broken concrete.” Id. at 23.
Novotney also saw that there were stockpiles placed along the private road,
creating a permanent berm, which was “acting like a dam and preventing water
from moving along its natural drainage course.” Id. at 24. As a result, there
was “standing water on th[e] private road.” Id.
[5] In October 2017, Novotney again visited Novak’s property and observed that
there was more material being brought on site, which again included soil “as
well as rock and what appeared to be broken concrete.” Id. at 26. Later that
month, the BZA filed a complaint for injunctive relief, alleging that Novak was
engaging in land-disturbing activities without a permit, in violation of the Porter
County Unified Development Ordinance Section 7.15 (the “ordinance”). That
section provides, in relevant part:
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B. Applicability:
1. Land-disturbing Activity: Section EC: Erosion Control
Standards shall apply to all land-disturbing activities within
the unincorporated area of Porter County, Indiana.
2. Exceptions:
a. Minor Projects: Section EC: Erosion Control
Standards shall not apply to minor projects where
land-disturbing activities involve less than 10,000
square feet . . . [;]
b. Section EC: Erosion Control Standards shall not
apply to existing nursery, mineral extraction, or
agricultural operations conducted as a permitted
primary or accessory use;
c. Emergency Activity: Section EC: Erosion Control
Standards shall not apply to any emergency activity
that is immediately necessary for the protection of
life, property or natural resources.
C. Erosion Control Permit Required: Before commencing any
land-disturbing activity to which § EC: Erosion Control Standards
applies, the developer of the site shall be required to file an
application and obtain an Erosion Control Permit[.]
The BZA also alleged that Novak’s activities were having a significant negative
impact on the storm-water management of the area and creating a nuisance.
The BZA asked that the trial court enter a permanent injunction, enjoining
Novak from further violations of the ordinance. See Appellant’s App. Vol. II p.
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16. In November, Novak filed a counterclaim against the BZA, alleging that
(1) she engaged in land-disturbing activities to conduct existing agricultural
operations, that is, housing and rearing horses and maintaining pasture land for
her horses and (2) that she engaged in land-disturbing activities as an
emergency activity to protect the lives of people and animals who were
endangered by the loss of the private road, to stop her fencing from washing
away, and to protect the pasture land used by her horses, and that therefore the
ordinance does not apply. See id. at 37. In December, ten of Novak’s northern
neighbors filed a motion to intervene in the suit, alleging that Novak’s land-
disturbing activities interfered with their right to use the private road. The trial
court allowed the neighbors to intervene.
[6] In January 2018, Novotney visited Novak’s property and saw that additional
grading had been done and that there was standing water on the private road,
which in some places was ten inches deep. In June, Novotney visited Novak’s
property once again and saw evidence of additional grading activity, that grass
was growing on the berm that Novak had created along the private road, and
that “broken concrete, asphalt, [and] stone” was being used as fill. Tr. p. 31.
[7] Over the course of two days in October 2018, the parties presented evidence for
and against an injunction. Novotney testified that “any land-disturbing
activities that involve ten thousand square feet or more . . . , which include the
stockpiling of materials, embankment, filling, grading, excavation, require a
permit.” Id. at 51. Regarding Novak’s claim that she was engaged in an
agricultural operation by maintaining pasture land for her horses, Novotney
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testified that her “trucking in of soil [and] embankment fill” was not “directly
related to those operations.” Id. at 58-59.
[8] Novak further testified that the northern part of her property is shaped like a
“bowl” and is lower than the farm to the west. Id. at 88. Regarding the
emergency exception, Novak stated that after the farm changed from pasture to
an active soybean and corn rotation, “it took a long time to really notice” that
her property was eroding. Id. at 92. Novak admitted that the flooding she
began to experience in her backyard was “[n]ot exactly immediate” and that
“every year a little of it moved.” Id. at 91, 97. During the hearing, Novak also
invoked the nursery-operation exception, saying that she participated in a
conservation program through the United States Department of Agriculture
(USDA) in which she planted 7,500 trees “so that the hills would not erode.”
Id. at 116. However, she acknowledged that the fill she had brought in “is not
on [that] area,” i.e., the area where she planted trees as part of the conservation
program. Id. 123. Finally, Novak testified that she was in “farm mode” and
“thought [she] had the right to bring [fill] in to fix what was wrong.” Id. at 112,
114. George Novak, Novak’s son, testified that he lives with his mother and
helps her keep three horses, several chickens, and six to seven goats on her
property. However, he admitted that Novak’s animals “don’t go back” to the
northern part of her property and that he gets their hay from another part of
Novak’s property. Id. at 130. George also stated that his mother took her
property “out of the [USDA] conservation program this year.” Id. at 135.
George contended that “[t]he ordinance applies to everything but agricultural
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property and that seems to be what we are.” Id. at 134. At the end of the
hearing, the trial court rejected Novak’s exception arguments and found that
she “should have applied for a permit for land-disturbing activity as required by
the ordinance.” Id. at 154. Following the hearing, the trial court issued an
injunction, enjoining Novak from transporting fill onto her property and
ordering her to remove any fill that was placed along the private road. See
Appellant’s App. Vol. II p. 13.
[9] Novak now appeals.
Discussion and Decision
[10] Novak contends that the trial court erred by issuing an injunction on the ground
that she violated the ordinance by engaging in land-disturbing activities without
a permit. The grant or denial of an injunction is discretionary, and we will not
reverse unless the trial court’s action was arbitrary or constituted a clear abuse
of discretion. Dierckman v. Area Planning Comm’n of Franklin Cty., 752 N.E.2d
99, 104 (Ind. Ct. App. 2001), trans. denied. A party seeking an injunction for a
zoning violation must prove: (1) the existence of a valid ordinance and (2) a
violation of that ordinance. Id.
[11] Here, the trial court issued the injunction after finding that Novak’s land-
disturbing activities violated the permit requirement of Porter County Unified
Development Ordinance Section 7.15. Novak claims that she is exempt from
the permit requirement for three reasons: (1) she is engaged in an agricultural
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operation by keeping horses, chickens, and goats; (2) she is engaged in a
nursery operation; and (3) her land-disturbing activities were in response to an
emergency.1 The trial court rejected all three exceptions.
[12] First, Novak argues that she is engaged in “agricultural operations” by keeping
horses, chickens, and goats and that therefore the permit requirement does not
apply. The ordinance provides that the permit requirement “shall not apply to
existing . . . agricultural operations.” Porter Cty. Unified Dev. Ordinance §
7.15(B)(2)(b). However, there is no evidence that Novak regraded and filled the
northern part of her property as part of her animal-keeping efforts. In fact,
George testified that Novak’s animals “don’t go back” to the northern part of
her property where the regrading and filling was being done. The trial court did
not err in finding that Novak did not meet the agricultural-operation exception.
Second, Novak argues that she operated a nursery and therefore meets the
nursery-operation exception. In support of her argument, she stated that she
planted 7,500 trees on her property as part of a USDA conservation program.
The ordinance provides that the permit requirement “shall not apply to existing
nursery . . . operations.” Porter Cty. Unified Dev. Ordinance § 7.15(B)(2)(b).
However, there is no evidence that maintaining those trees was the reason that
she regraded and filled the northern part of her property. Indeed, Novak
testified that the fill was not placed in the same area where those trees are
1
Novak also argues that the trial court erred by finding her land-disturbing activities created a nuisance.
Because we affirm the injunction based on the trial court’s ordinance-violation ruling, we do not address its
nuisance ruling.
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planted. See Tr. p. 123. Because there is no evidence that Novak’s land-
disturbing activities were directly related to a nursey operation, the trial court
correctly found that she is not exempt from the permit requirement of the
ordinance.
[13] Finally, Novak argues that an emergency was created when the farm across the
road switched from pasture to an active soybean and corn rotation and that
therefore the permit requirement does not apply. The ordinance provides that
the permit requirement “shall not apply to any emergency activity that is
immediately necessary for the protection of life, property or natural resources.”
Porter Cty. Unified Dev. Ordinance § 7.15(B)(2)(c). The BZA asserts that this
section “is intended to apply to circumstances where obtaining a permit is not
feasible because of the ‘immediate’ necessity of protecting life, property or
natural resources.” Appellees’ Br. p. 21 (emphasis added). Novak does not
support her argument with any evidence that immediate action was necessary
to protect life, property, or natural resources. For example, there is no evidence
that one day she noticed that her backyard was collapsing and that she had to
take immediate action to save the rest of her land. In fact, Novak admitted that
“it took a long time to really notice” that her backyard was eroding, that “every
year a little of it moved,” and that the flooding in her backyard was “[n]ot
exactly immediate.” Tr. pp. 91-92, 97. Also, the fact that the farm to the west
was switched from pasture to an active soybean and corn rotation in 2009, but
Novak did not decide that her property needed repair until 2017, is consistent
with the lack of evidence that this was an emergency. The lack of evidence
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showing any immediacy supports the trial court’s finding that the emergency
exception does not apply to Novak and therefore she was required to obtain a
permit.
[14] Because Novak is not exempt from the permit requirement of the ordinance, the
trial court did not abuse its discretion by issuing the injunction.
[15] Affirmed.
Kirsch, J., and Altice, J., concur.
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