Home > COBBUM v. Town of Cromwell

COBBUM v. Town of Cromwell

OWEN COBBUM, CRAIG COBBUM, and SAUNDRA COBBUM, Appellants,
v.
TOWN OF CROMWELL, Appellee.
No. 57A03-1009-PL-486.

Court of Appeals of Indiana.

Filed June 7, 2011.

MICHAEL W. REED, Reed & Earhart, Warsaw, Indiana, ATTORNEY FOR APPELLANTS.

BILL D. EBERHARD, JR., Eberhard & Weimer, P.C. LaGrange, Indiana, ATTORNEY FOR APPELLEE.

NOT FOR PUBLICATION

MEMORANDUM DECISION

MATHIAS, Judge.

The Town of Cromwell ("the Town") filed a complaint in Noble Circuit Court against Sandra, Craig, and Owen Cobbum (collectively "the Cobbums") alleging that use of their real estate violated the Town's zoning ordinance. After a bench trial, the trial court entered judgment in favor of the Town, and ordered the Cobbums to pay a $3300 fine and the Town's attorney fees. The Cobbums appeal and argue that storage of their personal property on the real estate did not violate the Town's zoning ordinance.

We affirm.

Facts and Procedural History

Sandra Cobbum and her son, Craig Cobbum, own real estate in Cromwell, Indiana. The real estate is situated in an area zoned for agricultural use. The only structure on the property is a pole barn. Sandra's husband, Owen Cobbum ("Owen") uses the real estate to store various items including boats, windows, doors, rolls of vinyl, and other salvaged building materials.

On August 18, 2009, the Town filed a complaint alleging that the Cobbums' use of the real estate violated the Town's zoning ordinance. The Town later filed an amended complaint and application for permanent injunction. The Cobbums filed a motion to dismiss the amended complaint, and after a hearing, that motion was denied.

A bench trial was then held on August 18, 2010. At that trial, photographic evidence was admitted to show various items stored outside of the pole barn located on the real estate. Those items included rolls of vinyl, stacks of window and doors, boats, and scrap metal. The trial court entered a judgment in favor of the Town shortly after trial. In support of its judgment, the trial court issued the following findings of fact and conclusions of law:

5. That the Court finds that [Sandra and Craig Cobbum's] property is located within the zoning jurisdiction of the Town of Cromwell Indiana.
6. That the Court finds that said real estate is zoned agricultural (for agricultural use) under the Cromwell Zoning Ordinance.
7. That the Court finds that the Cromwell Zoning Code defines Agriculture in Section 2 thereof as follows: "The primary use of a tract of land for growing or production of field crops, livestock, and livestock products, including the harvesting, storage and primary processing of agricultural products produced."
8. The court also finds that Agricultural Building is a defined term in Section 2 of said Cromwell Zoning Ordinance as follows: "Any building or structure used for agricultural purposes. (See Farm Structures)." The Court further finds that Section 2 of the Cromwell Zoning Ordinance defines a Farm Structure as "Any building or structure used for agricultural purposes. (See Agricultural Buildings)."
9. That the Court finds that the storage of personal effects such as sailboats, Mastercraft ski boat, wood Cris craft Boat, plastic boxes, vinyl rubberized carpet, aluminum frames and windows is not a permitted use in an agricultural district under the Cromwell Zoning Ordinance.
10. That the Court finds that under provision 1.8(E) of the Cromwell Zoning Ordinance[:] "Any person whether owner or possessor, who shall violate, or who permits or allows a violation, of any of the provisions of this Ordinance, or who fails to comply therewith or with any requirements thereunder, or who shall build, reconstruct, or structurally alter any building in violation of any detailed statement or plan submitted upon which an approval or grant is given under this Ordinance, shall, upon complaint filed in any court of the county and upon judgment finding such violation, be fined not less than One Hundred Dollars ($100.00) and not more than Two Thousand and Five Hundred Dollars ($2500.00), and each day that such violation or noncompliance shall be permitted to exist, shall constitute a separate violation."

Appellants' App. pp. 7-8 (Emphasis added).

The court then concluded that the Cobbums "utilized or permitted the utilization of the subject real estate in violation of" the Town's zoning ordinance from July 1, 2009 through and including August 18, 2009. The court imposed a fine of $100.00 per day for a total fine of $3300.00. Because the zoning ordinance also allows for an award of attorney fees when the Town prevails in an action to enforce its zoning ordinance, the Cobbums were also ordered to pay the Town's attorney fees in the amount of $7748.75. Finally, the trial court denied the Town's request for injunctive relief. The Cobbums now appeal.

Standard of Review

After the bench trial, the trial court entered findings of fact and conclusions of law. Indiana Trial Rule 52(A) provides in pertinent part that "[o]n appeal of claims tried by the court without a jury . . . the court on appeal shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Ruse v. Bleeke, 914 N.E.2d 1, 78 (Ind. Ct. App. 2009). When a trial court has entered specific findings and conclusions along with its judgment under Trial Rule 52, we apply a two-tiered standard of review. Id. at 8. Construing the findings liberally in support of the judgment, we consider whether the evidence supports the findings. Id. Findings are clearly erroneous only when a review of the record leaves us firmly convinced that a mistake has been made. Id. We must then determine if the findings support the judgment. Id. A judgment is clearly erroneous when the findings of fact and conclusions thereon do not support it. Id. We will disturb the judgment only when there is no evidence supporting the findings or the findings fail to support the judgment. Id. We do not reweigh the evidence, but consider only the evidence favorable to the trial court's judgment. Id.

Discussion and Decision

Initially, we observe that the interpretation of a zoning ordinance is a question of law. Story Bed & Breakfast LLP v. Brown County Area Plan Comm'n, 819 N.E.2d 55, 65 (Ind. 2004). The ordinary rules of statutory construction apply in interpreting the language of a zoning ordinance. Id. Words are to be given their plain, ordinary, and usual meaning, unless a contrary purpose is shown by the statute or ordinance itself. Hall Drive Ins. Inc. v. City of Fort Wayne, 773 N.E.2d 255, 257 (Ind. 2002). 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 ordinance. Id. Because zoning ordinances limit the free use of property, they are in derogation of the common law and must be strictly construed. Story, 819 N.E.2d at 66. When a zoning ordinance is ambiguous, it should be construed in favor of the property owner. Id.

The Cobbums' real estate is situated in a district zoned for agricultural use. The Town's zoning ordinance declares that the purpose of "agricultural districts" are "established to include substantial areas where little or no urbanization has occurred or is likely to occur in the near future." Appellants' App. p. 23. And the ordinance defines agriculture as "[t]he primary use of a tract of land for growing or production of field crops, livestock, and livestock products, including the harvesting, storage and primary processing of agricultural products produced." Id. at 20.

Permitted primary uses in agricultural districts include single family dwellings and Type I manufactured homes, farms, greenhouses, agricultural buildings, parks, schools, golf courses, and riding stables. Id. at 26-34. Several special uses are authorized in agricultural districts but the use is permitted only if it has been approved under section 8.3 of the ordinance. Accessory uses "are authorized in all districts subject to the provisions of any and all recorded restrictive covenants running with the land." Id. at 25. The Town's zoning ordinance defines an "accessory use" as "[a] subordinate use which is incidental to that of the primary use and is a use other than human occupancy." Id. at 19. Examples of accessory uses provided for in the ordinance include: accessory buildings, driveways, fences, lamp posts, parking spaces, private swimming pools, and public utility installations. Id. at 25.

The Cobbums argue that the Town failed to prove a violation of its zoning ordinance because

[n]o evidence was adduced concerning the type of primary use on the Cobbums' real estate. Primary uses are not defined in the Cromwell Zoning Ordinance, except they are listed in the Table of Permitted and Special Uses. Because it is not listed as a primary use, and because primary uses are not defined, the storage of personal effects must be an accessory use. Because the Cromwell Zoning Ordinance provides that accessory uses, . . . are authorized in all districts, the storage of personal effects must be appropriate on the Cobbums' real estate in conjunction with the primary use thereof.

Appellants' Br. at 9.

As we noted above, the Town's ordinance does define the terms "agricultural district," agriculture, and "agricultural building." Appellants' App. pp. 20-23. And the Town proved that the Cobbums' real estate lies in an "agricultural district." Tr. p. 92. The Town also established that the Cobbums' primary use of the real estate at issue is storage of Owen Cobbum's personal property, trash and salvageable building materials.

Owen's wife, who owns the property with their son, testified that they purchased the property to store their boats and other personal items. Ex. Vol., Deposition of Saundra Cobbum at pp. 5-6. Saundra Cobbum stated that Owen uses the real estate and takes care of it. Owen testified that he stores items on the real estate both in and outside of the pole barn that sits on the property. But the only photographic evidence admitted at trial showed the items stored outside the pole barn, including the Cobbums' boats, stacks of windows and doors, rolled vinyl, and scrap metal. Owen purchased many of those items at auction. He stated that he purchased the building materials for their salvage value. Tr. p. 71. Owen has also filled the boats up with trash, and, according to his testimony, the trash sits on the property for "a few days" before the boat is used to take the trash to waste management. Tr. p. 70. Owen agreed that he has "used boats on trailers as basically mobile trash cans[.]" Id.

This evidence establishes that the Cobbums' primary use of the real estate, and particularly their use of the land adjacent to the pole barn, is storage of personal items, boats, trash, and salvaged building materials. The Cobbums may not utilize the real estate in this manner if such use is not a permitted agricultural use under the Town's zoning ordinance.

Pursuant to the Town's zoning ordinance, permitted primary uses in agricultural districts include single family dwellings and Type I manufactured homes, farms, greenhouses, agricultural buildings, parks, schools, golf courses, and riding stables. And because the Town's ordinance enumerates these items, items not specified in the ordinance are excluded by implication. See T.W. Thom Const., Inc. v. City of Jeffersonville, 721 N.E.2d 319, 325 (Ind. Ct. App. 1999) (citing Day v. Ryan, 560 N.E.2d 77, 82 (Ind. Ct. App. 1990)).

Although a pole barn generally fits within the ordinance's definition of an agricultural building, the Cobbums' use of the property surrounding the pole barn is not an agricultural use. The Cobbums use the real estate for storage of personal items, boats, trash, and salvaged building materials. This is not a permitted agricultural use under the Town's zoning ordinance. The items stored on the Cobbums' real estate, particularly the salvaged building materials and boats filled with trash, lack any agricultural purpose as that term is defined in the ordinance.

Even assuming for the sake of argument that the Cobbums' primary use of the real estate was agricultural, storage of boats, trash, and salvaged building materials could not be considered an accessory use as that term is defined in the Town's ordinance. Storage of such items would not be a "subordinate use which is incidental to that of" any agricultural use. See id. at 19.

The Cobbums' claim that they merely used the real estate for the storage of "personal effects," which they allege is neither allowed nor prohibited by the Town's Ordinance, is not supported by the evidence. Photographic evidence of the property demonstrates that Owen Cobbum was using the property to store more than just his personal effects. Aside from the Cobbums' boats, the salvaged property, including numerous windows, doors, and vinyl rolls purchased by Owen at auction cannot be categorized as personal effects under the common meaning of that phrase.[1]

In this regard, the trial court's finding number #9, which provides that storage of personal effects is not a permitted use in an agricultural district, is overly broad. At trial, the Town was clearly concerned with the numerous items on the Cobbums' property located outside of the pole barn that simply cannot be considered "personal effects." We do not conclude that storage of personal effects, particularly storage of personal effects inside the pole barn, would violate the Town's zoning ordinance. The Town's ordinance permits residential buildings in agricultural districts. Certainly storage of personal effects would be considered an accessory use to a residential use of the real estate. But because Owen Cobbum was essentially using the real estate as a small salvage yard, we affirm the trial court's judgment that such use violated the Town's zoning ordinance.

Finally, in its Appellee's brief, the Town requests appellate attorney fees but does not provide any argument or citation to any authority in support of its request. Therefore, the Town's request for appellate attorney fees is waived. See Vagenas v. Vagenas, 879 N.E.2d 1155, 1162 n.3 (Ind. Ct. App. 2008), trans. denied.

Affirmed.

KIRSCH, J., and VAIDIK, J., concur.

[1] The phrase personal effects is defined as "privately owned items (as clothing and jewelry) normally worn or carried on the person." See Merriam-Webster Dictionary Online available at www.Merriam-webster.com/dictionary/personal%2Beffects.