MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                 FILED
regarded as precedent or cited before any                                        Aug 31 2020, 10:37 am
court except for the purpose of establishing
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the defense of res judicata, collateral                                           Indiana Supreme Court
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ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEES
Grant M. Reeves                                          GERALD A. MCCORMICK AND
Barada Law Offices LLC                                   CHRISTOPHER THAYER
Rushville, Indiana                                       Andrew M. Sumerford
                                                         Meils Thompson Dietz & Berish
                                                         Indianapolis, Indiana

                                                         ATTORNEYS FOR APPELLEE CITY
                                                         OF RUSHVILLE
                                                         Julie A. Newhouse
                                                         Tracy J. Newhouse
                                                         Rushville, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

City of Rushville Board of                               August 31, 2020
Zoning Appeals, by Joe Rathz in                          Court of Appeals Case No.
his capacity as Chairman,                                20A-PL-212
Appellant-Defendant,                                     Appeal from the Rush Circuit
                                                         Court
        v.                                               The Honorable Matthew D.
                                                         Bailey, Special Judge
Gerald A. McCormick and                                  Trial Court Cause No.
Christopher Thayer,                                      70C01-1810-PL-392
Appellees-Plaintiffs,
and


Court of Appeals of Indiana | Memorandum Decision 20A-PL-212 | August 31, 2020                 Page 1 of 11
      The City of Rushville, Indiana,
      by Michael Pavey in his capacity
                1
      as Mayor,
      Appellee-Defendant.



      Shepard, Senior Judge.


[1]   In this interlocutory appeal, the city of Rushville Board of Zoning Appeals

      appeals the trial court’s order setting aside its decision that Christopher Thayer

      had abandoned a non-conforming use of property he had owned. We conclude

      that the evidence before the Board was sufficient under the standards applicable

      to judicial review. We thus reverse the trial court.


                                  Facts and Procedural History
[2]   The city of Rushville enacted its zoning ordinance in 1974. Among other

      things, the ordinance defined “Mobile Home Park” as “[a]n area of land on

      which two or more mobile homes are regularly accommodated with or without

      charge including any building or other structure, fixture or equipment that is

      used or intended to be used in providing that accommodation.” Appellant’s

      App. Vol. III, p. 29 (1974 Zoning Ord. § 5.1.21).




      1
        Although counsel for the city of Rushville entered their appearance, they did not file a brief or participate in
      this appeal. Yet, the city is still a party on appeal. See Ind. Appellate Rule 17(A) (“A party of record in the
      trial court or Administrative Agency shall be a party on appeal.”).

      Court of Appeals of Indiana | Memorandum Decision 20A-PL-212 | August 31, 2020                       Page 2 of 11
[3]   In 1982, the then-owners of the piece of property at issue in this case

      successfully petitioned to have the property rezoned to a “Mobile Home Park”

      classification. At that time, the 1974 ordinance, and its corresponding

      definition of “Mobile Home Park,” was still in effect.


[4]   In approximately 1999, Christopher Thayer purchased the property. Thayer

      operated a mobile home park on the property, which had space for up to seven

      mobile homes.


[5]   In 2006, the city of Rushville adopted a new zoning ordinance. Under the 2006

      ordinance, Thayer’s property was rezoned to the “Central Business District”

      classification, in which a mobile home park was not a permitted use.

      Appellant’s App. Vol. IV, p. 55 (2006 Zoning Ord. § 6-101-4 H.). However,

      because the property was lawfully being used as a mobile home park at the time

      of the rezoning, it could remain a mobile home park as a pre-existing, non-

      conforming use under the new zoning classification. The 2006 ordinance

      defined “Mobile Home Park” as “[a]n area of land under single ownership used

      for the parking of two (2) or more occupied mobile homes.” Id. at 23 (2006
                                        2
      Zoning Ord. § 6-101-3 B.).


[6]   By the end of January 2013, Thayer had removed all but one mobile home from

      the property. The property has contained only one mobile home since 2013.




      2
        Although the city again adopted a new zoning ordinance in 2009, the definition of “Mobile Home Park”
      remained unchanged. Appellant’s App. Vol. V, p. 24 (2009 Zoning Ord. § 6-101-3 B.).

      Court of Appeals of Indiana | Memorandum Decision 20A-PL-212 | August 31, 2020               Page 3 of 11
[7]   Effective January 2016, Rushville again adopted a new zoning ordinance. This

      ordinance did not contain the term “Mobile Home Park” but rather used the

      term “Manufactured Home Park,” which it defined as “[a]n area of land under

      single ownership used for the parking of two (2) or [m]ore occupied

      manufactured homes.” Appellant’s App. Vol. VI, p. 18 (2016 Zoning Ord. Art.

      II B.).


[8]   In November 2017, Thayer sold the property on contract to Gerald

      McCormick, who intended to operate a mobile home park on the property.

      However, in May 2018, the city of Rushville Department of Planning and

      Zoning sent McCormick a letter informing him that, due to a several-year lapse

      in the use of the property as a mobile home park as defined in the Rushville

      zoning ordinance, the property could no longer be used as such without a use

      variance or rezoning.


[9]   McCormick appealed to the Board. At the public hearings on the matter,

      evidence was presented, including the testimony of Thayer, who described his

      efforts to obtain tenants for the park thusly: “one time . . . I put flyers up,” “[I]

      would tell the girls at the utility office,” and “I had a good friend that was plant

      manager . . . [and k]new a lot of people.” Appellant’s App. Vol. II, p. 80 (Tr.

      BZA Hrgs.). Thayer also explained that he “got a little too stringent” with his

      standard for an acceptable tenant and admitted that he “didn’t devote enough

      energy” to the park. Id. at 80, 82 (Tr. BZA Hrgs.). The Board affirmed the

      decision of the Department of Planning and Zoning and issued findings and

      conclusions.

      Court of Appeals of Indiana | Memorandum Decision 20A-PL-212 | August 31, 2020   Page 4 of 11
[10]   McCormick then petitioned for judicial review. The trial court issued its

       findings and conclusions determining the Board’s decision was erroneous and

       remanding the case to the Board for further proceedings. This Court

       subsequently granted the Board’s petition for interlocutory appeal.


                                                      Issue
[11]   Whether the trial court properly reversed the Board’s decision.


                                    Discussion and Decision
[12]   When reviewing a zoning board’s decision, this Court applies the same

       standard as the trial court. Stiller Props., LLC v. Floyd Cty. Bd. of Zoning Appeals,

       144 N.E.3d 727 (Ind. Ct. App. 2020). That is, we may not substitute our

       judgment for that of the zoning board, and we may neither weigh evidence nor

       assess witness credibility. Id.


[13]   Instead, we are limited to determining whether the zoning board’s decision was

       based upon substantial evidence. House of Prayer Ministries, Inc. v. Rush Cty. Bd.

       of Zoning Appeals, 91 N.E.3d 1053 (Ind. Ct. App. 2018), trans. denied.

       “Substantial evidence is such relevant evidence as a reasonable mind might

       accept as adequate to support a conclusion.” Snyder v. Kosciusko Cty. Bd. of

       Zoning Appeals, 774 N.E.2d 550, 552 (Ind. Ct. App. 2002), trans. denied (2003).

       “Evidence is considered substantial if it is more than a scintilla and less than a

       preponderance.” Id. A decision not supported by substantial evidence is

       arbitrary, capricious, or an abuse of discretion. House of Prayer Ministries, Inc.,

       91 N.E.3d 1053. There is a presumption that determinations of a zoning board,
       Court of Appeals of Indiana | Memorandum Decision 20A-PL-212 | August 31, 2020   Page 5 of 11
       with expertise in the area of zoning issues, are correct and should not be

       overturned unless they are arbitrary, capricious, or an abuse of discretion. Id.;

       see Ind. Code § 36-7-4-1614(d)(1) (2011) (judicial relief from zoning decision

       may be granted only if court determines that party seeking relief has been

       prejudiced by decision that is arbitrary, capricious, an abuse of discretion, or

       otherwise not in accordance with law).


[14]   We initially note that a “non-conforming use” is a use of a premises which

       lawfully exists prior to the enactment of a zoning ordinance and which is

       allowed to be maintained or continued after the effective date of the ordinance

       although it does not comply with the use restrictions applicable in the area. Bd.

       of Pub. Works & Safety of City of Hammond v. Alcantar, 47 N.E.3d 1276 (Ind. Ct.

       App. 2015). The party claiming a legal non-conforming use has the burden of

       establishing such, and, once that use has been established, the burden of

       proving the termination of that use by abandonment or discontinuance rests on

       the party opposing the non-conforming use. Id.


[15]   The parties agree that from 1982 to 2006 the property was lawfully used as a

       mobile home park and that, when it was rezoned to the Central Business

       District classification in 2006, it continued to be used as a mobile home park as

       a pre-existing, non-conforming use. Thus, the Board bore the burden of

       establishing the abandonment of the use of the property as a mobile home park.




       Court of Appeals of Indiana | Memorandum Decision 20A-PL-212 | August 31, 2020   Page 6 of 11
[16]   The Board began by deciding which ordinance and corresponding definition of

       “Mobile Home Park” was applicable to the use of the property. It determined

       that the 1974 ordinance applies:


               4. At the hearing, the BZA heard discussions regarding which
               ordinance would apply to govern the use in question. This
               situation arose because the applicable sections of the zoning
               ordinance were amended at numerous times. The BZA believes
               that the most applicable ordinance defining the use would be the
               ordinance governing such use at the time it was created.


               5. Here, the use was created in August of 1982, and the
               ordinance in effect at that time would have been the June 18,
               1974, Ordinance (the “74 Ordinance”).


       Appellant’s App. Vol. II, p. 23 (BZA’s Findings and Conclusions).


[17]   The 1974 ordinance defined “Mobile Home Park” as: “An area of land on

       which two or more mobile homes are regularly accommodated with or without

       charge including any building or other structure, fixture or equipment that is

       used or intended to be used in providing that accommodation.” Appellant’s

       App. Vol. III, p. 29 (1974 Zoning Ord. § 5.1.21) (emphasis added). Applying

       this definition, the Board concluded:


               7. Under this definition, the use of the Property as a mobile home
               park lapsed as a pre-existing non-conforming use when all but
               one mobile/manufactured home was removed prior to 2013.
               The definition of “Mobile Home Park” requires that two or more
               mobile homes be regularly accommodated under the 74
               Ordinance. The BZA finds the failure to maintain two or more
               mobile homes on the Property for a period of at least 5 years (far

       Court of Appeals of Indiana | Memorandum Decision 20A-PL-212 | August 31, 2020   Page 7 of 11
               more than any minimum or reasonable time) means the pre-
               existing non-conforming use has lapsed under any reasonable
               interpretation for at least the following reasons:


                        a. More than 50% of the original structures on the
                        Property were removed (leaving only one of many
                        previous mobile/manufactured homes).


                        b. To the extent that the removal of the additional mobile
                        homes brought the Property closer to conformity with the
                        current ordinance (though not into compliance), it may
                        not now be changed back to a use that is even more non-
                        conforming.


                        c. Definitionally, there was a change of use when the use
                        of the Property failed to meet the definition of a “Mobile
                        Home Park.”


       Appellant’s App. Vol. II, p. 23 (BZA’s Findings and Conclusions).


[18]   Additionally, the Board determined that, while its decision was primarily based

       on the 1974 ordinance, the non-conforming use would have lapsed under any of

       the possible definitions because they all require two or more occupied

       mobile/manufactured homes. See id. at 23-24 (BZA’s Findings and

       Conclusions).


[19]   Finally, the Board addressed McCormick’s argument that Thayer had not

       abandoned the use of the property because he had continued to maintain his

       mobile home park license through the State. However, in light of the evidence

       of Thayer’s voluntary removal of all but one mobile home on the property


       Court of Appeals of Indiana | Memorandum Decision 20A-PL-212 | August 31, 2020   Page 8 of 11
       without replacement and only minimal effort to market the property to secure

       new tenants, the Board determined that merely maintaining the State license by

       paying a fee did not overcome the evidence of abandonment or lapse of use.

       See id. at 24-25 (BZA’s Findings and Conclusions).


[20]   McCormick argues that the Board erred by basing its decision on the 1974

       ordinance. The Board determined the 1974 ordinance applies because it was

       the governing ordinance in effect in 1982 when the property was rezoned to the

       “Mobile Home Park” classification. Additionally, the 1974 ordinance was still

       in effect and governing the use of the property as a mobile home park when it

       was grandfathered in as a pre-existing, non-conforming use in 2006 when the

       property was rezoned to Central Business District. A non-conforming use is a

       use which lawfully exists prior to the enactment of a zoning ordinance and

       which is allowed to be continued after the effective date of the ordinance

       although it does not comply with the use restrictions of the new ordinance. Bd.

       of Pub. Works & Safety of City of Hammond, 47 N.E.3d 1276. Accordingly, the

       1974 ordinance is the only ordinance under which this property lawfully existed

       as a mobile home park. From 2006 to the present, the property merely was

       permitted to continue to be used as a mobile home park as a non-conforming

       use.


[21]   The zoning ordinance in effect in Rushville at the time this issue arose is the

       2016 ordinance. In Article XI, entitled Non-Conforming Uses, that ordinance

       provides:



       Court of Appeals of Indiana | Memorandum Decision 20A-PL-212 | August 31, 2020   Page 9 of 11
               3. Abandonment or discontinuance. If a nonconforming use
               other than a single-family residential use is discontinued or
               terminated for a period of 12 months, any future use of the
               structure, or land shall conform to the provisions of this
               ordinance.


       Appellant’s App. Vol. VI, p. 100 (2016 Zoning Ord. Art. XI C.). Similarly,

       prior to 2016, the 2006 ordinance provided:


               C. DISCONTINUANCE OR ABANDONMENT


               When a nonconforming use of land, structure, or land and
               structure in combination is discontinued or abandoned for twelve
               (12) consecutive months, the structure, land, or structure and
               land in combination shall not thereafter be used except in
               conformance with regulations of the district in which it is
               located.


       Appellant’s App. Vol. IV, p. 158 ( 2006 Zoning Ord. § 6-101-10).


[22]   The non-conforming use here, as defined by the governing ordinance, is “[a]n

       area of land on which two or more mobile homes are regularly accommodated

       with or without charge including any building or other structure, fixture or

       equipment that is used or intended to be used in providing that

       accommodation.” Appellant’s App. Vol. III, p. 29 (1974 Zoning Ord. § 5.1.21).

       Pursuant to either ordinance, abandonment occurs after the use is discontinued




       Court of Appeals of Indiana | Memorandum Decision 20A-PL-212 | August 31, 2020   Page 10 of 11
       for a period of 12 months, and the property at issue here contained only one
                                                                         3
       mobile home for a period of more than five years.


                                                 Conclusion
[23]   The Board carefully considered whether the non-conforming use had been

       abandoned, and we conclude the Board’s decision rested upon substantial

       evidence. Therefore, the trial court erred by setting aside the Board’s decision.

       We reverse and remand for proceedings consistent with this opinion.


[24]   Reversed and remanded.


       Crone, J., and Pyle, J., concur.




       3
         Assuming, arguendo, that either the 2006 or the 2016 zoning ordinance was the definitional governing
       ordinance, we observe that the result would be the same as under the 1974 ordinance. See Appellant’s App.
       Vol. IV, p. 23 (2006 Zoning Ord. § 6-101-3 B.) (defining “Mobile Home Park” as “[a]n area of land under
       single ownership used for the parking of two (2) or more occupied mobile homes.”); Appellant’s App. Vol.
       VI, p. 18 (2016 Zoning Ord. Art. II B.) (defining “Manufactured Home Park” as “[a]n area of land under
       single ownership used for the parking of two (2) or [m]ore occupied manufactured homes.”).

       Court of Appeals of Indiana | Memorandum Decision 20A-PL-212 | August 31, 2020               Page 11 of 11
