                                                                                 FILED
                                                                          Jul 13 2016, 9:35 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      John Johnston                                              Jerry T. Drook
      Wabash, Indiana                                            Marion, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Jack A. Enslen,                                            July 13, 2016
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 27A04-1512-OV-2109
              v.                                                 Appeal from the Grant Superior
                                                                 Court
      Area Plan Commission of Grant                              The Honorable Warren Haas,
      County Indiana,                                            Judge
      Appellee-Plaintiff.                                        Trial Court Cause No.
                                                                 27D03-1504-OV-41



      Altice, Judge.


                                                 Case Summary


[1]   A home owned by Jack Enslen has been uninhabitable, and indeed

      uninhabited, since 2002. He obtained building permits in 2009 and 2012 with

      the stated intention of bringing the home up to code, but no actual work was

      ever started on the property due to Enslen’s continued lack of finances. The

      Grant County Area Plan Commission (the APC) eventually filed a complaint

      Court of Appeals of Indiana | Opinion 27A04-1512-OV-2109 | July 13, 2016                    Page 1 of 10
      for civil zoning violation against Enslen. Following a bench trial, the trial court

      issued an order directing Enslen to raze the structure within thirty days. Enslen

      asserts a number of arguments on appeal that all boil down to a claim that the

      trial court’s judgment is clearly erroneous.


[2]   We affirm.


                                        Facts & Procedural History


[3]   From about 1976 to 2001, Enslen lived in the home in question, which is in a

      “built up residential area” in Grant County. Transcript at 29. When he and his

      wife divorced in 2001, the real estate was appraised at $17,500, and Enslen was

      awarded this asset in the dissolution. At that point, he hired a work crew to

      remodel the home. The home was apparently gutted and the siding removed.

      The home no longer had plumbing, power, or heat. A new roof was put on in

      2002, but then all work ceased when Enslen ran into financial difficulties due to

      medical issues. He has not lived in the home or performed any further work on

      the home since 2002.


[4]   In 2009, Enslen filed an application with the APC for a permit to remodel the

      home and bring it up to code. The permit was issued in December 2009, and

      extended four times. Enslen then sought and obtained a new permit in

      September 2012. Enslen explained at trial that he obtained the permits so that

      “if money became available then I could work on that house, I was legal.” Id.

      at 18. Money never became available and the permits expired with no work

      performed.

      Court of Appeals of Indiana | Opinion 27A04-1512-OV-2109 | July 13, 2016   Page 2 of 10
[5]   On March 27, 2015, the APC sent a Warning Ticket and Notice of Civil Zoning

      Violation (the Notice) to Enslen. With respect to the nature of the violation,

      the Notice indicated that the structure was vacant and not maintained in a

      manner that would allow human habitation. Additionally, the Notice alleged

      the home was “dangerous due to violations of building codes, dilapidation,

      decay, and a public nuisance.” Exhibits, Defendant’s Exhibit A. The Notice

      directed Enslen to obtain a building permit, bring the structure into compliance

      with current building codes, and secure a certificate of occupancy, all within

      thirty days, or remove the unsafe structure and all debris.


[6]   After he received the Notice, Enslen went to the APC to obtain another permit.

      The director of the APC denied his request for a new two-year permit and

      directed Enslen to work under the 2012 permit. Enslen, however, did not

      request an extension to work under the expired permit and he completed no

      work on the home.


[7]   On April 29, 2015, the APC filed a complaint against Enslen, alleging that the

      home was an unsafe structure and requesting a judgment requiring, among

      other things, that Enslen “bring the structure into compliance with the

      applicable building codes or remove the structure and related debris from the

      property within thirty (30) days”. Appendix at 11. Enslen filed a counterclaim

      along with his answer, claiming that the APC unlawfully refused to issue him a

      permit and that the Notice was “constitutionally defective and deficient in that

      it did not identify with reasonable certainty” the specific building codes violated



      Court of Appeals of Indiana | Opinion 27A04-1512-OV-2109 | July 13, 2016   Page 3 of 10
       or the specific conditions of the property that did not comply with the building

       codes. Id. at 13.


[8]    The cause proceeded to a short bench trial on October 29, 2015. Bob Highly, a

       code enforcement officer and building inspector, testified on behalf of the APC.

       Highly indicated that the home lacks all of the following: kitchen, bath,

       permanent heat system, potable water, weather tight exterior, smoke alarms,

       and GFCI outlets. Further, he noted that the home has an incomplete electrical

       system and the means of egress through the inside of the home is restricted by

       numerous possessions.


[9]    Enslen claimed that the home was structurally sound but conceded that it had

       no plumbing, working electricity, heat, gas, or hard exterior siding. After

       testifying that no one had lived in or worked on the home since 2002, Enslen

       acknowledged that the permits he obtained were useless to him due to his

       financial circumstances. The trial court then questioned whether he expected

       funds to become available in the near future, and Enslen responded, “I’m

       afraid, I’m scared.” Transcript at 19. He indicated that his financial situation

       was still “[k]inda rough.” Id.


[10]   At the conclusion of the hearing, the trial court stated in part:

               I don’t think it’s that difficult to figure out what you would’ve
               needed to do. If you had the ability to do it, you know it would
               give me so many more alternatives than I feel I currently have,
               but you’ve done your very best for the last thirteen (13) or
               fourteen (14) years and were unsuccessful….there’s zero (0) hope
               in my mind that this is gonna be done[.]

       Court of Appeals of Indiana | Opinion 27A04-1512-OV-2109 | July 13, 2016   Page 4 of 10
       Id. at 31. The trial court entered judgment in favor of the APC and, on

       November 17, 2015, issued an order directing Enslen to remove the structure

       and related debris from the property within thirty days and pay a fine and court

       costs.1 The court authorized the APC to correct the violation and assess costs

       to Enslen if he failed to remove the structure as ordered. Enslen now appeals.


                                            Discussion & Decision


[11]   The trial court entered a general judgment. Accordingly, without reweighing

       the evidence or considering witness credibility, we will affirm the trial court if

       the judgment is sustainable upon any theory consistent with the evidence.

       Techna-Fit, Inc. v. Fluid Transfer Prods., Inc., 45 N.E.3d 399, 413 (Ind. Ct. App.

       2015). “On appellate review, due regard must be given the trial court’s

       opportunity to judge the credibility of witnesses, and the judgment should not

       be set aside unless clearly erroneous.” Perdue Farms, Inc. v. Pryor, 683 N.E.2d

       239, 241 (Ind. 1997).


[12]   Enslen argues that the trial court’s judgment is clearly erroneous because the

       APC presented no evidence that he violated a local zoning ordinance or Ind.

       Code § 36-7-9-4. Further, he asserts that the Notice was constitutionally

       defective.




       1
         The order contains a scrivener’s error in that it indicates the hearing was on the APC’s “Citation for
       violation of Court order”. Appendix at 9. The complaint filed by the APC, however, was titled “Complaint
       for Civil Zoning Violation”. Id. at 10. This error is immaterial.

       Court of Appeals of Indiana | Opinion 27A04-1512-OV-2109 | July 13, 2016                      Page 5 of 10
[13]   We turn first to Enslen’s constitutional challenge. In this regard, he argues that

       the Notice was “void for vagueness and violated fundamental Due Process

       because it did not furnish specific and concrete reasons so Enslen could comply

       with the provisions of the applicable ordinance.” Appellant’s Brief at 25. In

       other words, he asserts that he was not “fairly apprised” of the specific

       ordinance violations that needed to be abated. Id. at 26.


[14]   The APC argues in response that Enslen waived this constitutional issue by not

       raising it below. Indeed, while he alleged in his counterclaim that the Notice

       was “constitutionally defective and deficient”, he did not present any argument

       or evidence in support of this claim at trial.2 Appendix at 13.


[15]   Waiver aside, we conclude that Enslen’s reliance on City of New Haven v. Chem.

       Waste Mgmt. of Ind., L.L.C., 701 N.E.2d 912 (Ind. Ct. App. 1998), is misplaced.

       In that case, the city filed for injunctive enforcement of a stop work order,

       which sought to stay all of the defendant’s operations on the property “which

       do not conform to the provisions of [the improvement location permit] and the

       restrictive covenants.” Id. at 918. The trial court refused to grant injunctive

       relief because the stop work order was too vague and general to be enforceable.

       We affirmed, holding that “basic constitutional due process considerations

       about fair notice require that a stop work order issued by a Zoning




       2
         The Notice was admitted into evidence with respect to his argument that the Notice directed him to obtain
       a permit, but the APC refused to give him a new permit when he attempted to do so. Enslen made no
       reference to his constitutional claim when introducing this evidence at trial.

       Court of Appeals of Indiana | Opinion 27A04-1512-OV-2109 | July 13, 2016                        Page 6 of 10
       Administrator be reasonably specific and concrete so as to fairly apprise the

       wrongdoer of the specific violation.” Id. at 918-19.


[16]   In the case at hand, the APC was not seeking to enforce a stop work order, or

       even the Notice. Rather, it sought the removal of an allegedly unsafe structure

       as defined by statute and local ordinance. We do not find the lone case relied

       upon by Enslen in this regard, City of New Haven, controlling. Moreover, we

       agree with the APC’s observation that the evidence presented at trial – most

       notably, Enslen’s own testimony – established that his problem with

       compliance was not that he did not understand what needed to be done but that

       he did not have the financial means to do it.3


[17]   We now turn to Enslen’s argument that the APC presented no evidence at trial

       that the home violated a local zoning ordinance or Ind. Code § 36-7-9-4. He

       begins by attacking Highly’s testimony regarding the condition of the property.

       He argues that Highly had no personal knowledge because he had never been

       inside the home.4 We reject Enslen’s invitation to reweigh the evidence in this

       regard. See Techna-Fit, Inc., 45 N.E.3d at 413. Moreover, Enslen himself




       3
         Enslen also complains that the APC refused to give him a permit to complete the work required by the
       Notice. The record establishes that Enslen was directed to work under his prior permit, and if he was
       concerned about the legality of doing so, he could have sought an extension. Moreover, the record makes
       clear that issuance of a new permit (or even an extension) would have been for naught due to Enslen’s
       admitted lack of funds.
       4
         Highly’s testimony in this regard was based on reports from a building inspector. Enslen did not object to
       this testimony at trial.

       Court of Appeals of Indiana | Opinion 27A04-1512-OV-2109 | July 13, 2016                          Page 7 of 10
       testified at trial that the home lacked plumbing, working electricity, heat, gas,

       and hard exterior siding.


[18]   Enslen next addresses I.C. § 36-7-9-4(a),5 which provides:


               For purposes of this chapter, a building or structure, or any part
               of a building or structure, that is:

                        (1) in an impaired structural condition that makes it unsafe
                        to a person or property;

                        (2) a fire hazard;

                        (3) a hazard to the public health;

                        (4) a public nuisance;

                        (5) dangerous to a person or property because of a
                        violation of a statute or ordinance concerning building
                        condition or maintenance; or

                        (6) vacant or blighted and not maintained in a manner that
                        would allow human habitation, occupancy, or use under
                        the requirements of a statute or an ordinance;

               is considered an unsafe building.

       The parties and the trial court focused on subsection (6) in determining whether

       the home should be considered an unsafe building.


[19]   Enslen argues, as he did below, that the home was not vacant because he had

       personal property therein. He contends that the “common, ordinary meaning




       5
        The Building Code of Grant County expressly incorporates this statute into its unsafe structure ordinance.
       Grant County Areawide Zoning Ordinance, § 153.158.

       Court of Appeals of Indiana | Opinion 27A04-1512-OV-2109 | July 13, 2016                         Page 8 of 10
       of the word ‘vacant’ is containing nothing, empty, unfilled.” Appellant’s Brief at

       21 (relying upon a common dictionary definition). Considering the legislative

       purpose of the statute, as expressly set out in I.C. § 36-7-9-4.5,6 we cannot agree

       that a home left unoccupied for more than a decade is not vacant simply

       because it still contains personal property of the prior occupant. See In re J.J.,

       912 N.E.2d 909, 910 (Ind. Ct. App. 2009) (“where [statutory] language is

       susceptible to more than one reasonable interpretation, the statute must be

       construed to give effect to the legislature’s intent”). Vacant, in this context, was

       plainly intended to mean unoccupied or uninhabited by an owner, tenant, or

       person authorized by the owner. Cf. I.C. § 36-7-36-6 (related chapter 36 –

       abatement of vacant structures and abandoned structures – defines “vacant

       structure” as “a structure or building that is not being occupied by an owner,

       tenant, or others authorized by the owner”). The trial court properly

       determined that the property in question was vacant.


[20]   The second requirement for establishing that a structure is unsafe under I.C. §

       36-7-9-4(a)(6) is that the structure is “not maintained in a manner that would

       allow human habitation, occupancy, or use under the requirements of a statute

       or an ordinance.” Enslen appears to concede that the property was not fit for

       habitation or occupancy. He argues, however, that the APC failed to show that




       6
        I.C. § 36-7-9-4.5 sets out detailed legislative findings regarding “vacant, deteriorated structures” and their
       negative effects on communities. The statute begins by recognizing that “there exists a large number of
       unoccupied structures that are not maintained and that constitute a hazard to public health, safety, and
       welfare.” I.C. § 36-7-9-4.5(a) (emphasis supplied). See also Grant County Areawide Zoning Ordinance, §
       153.159(A).

       Court of Appeals of Indiana | Opinion 27A04-1512-OV-2109 | July 13, 2016                             Page 9 of 10
       it had not been maintained in a manner that would allow for some other “use”,

       such as the storage of personal property.


[21]   Enslen’s argument – asserted for the first time on appeal – misses the mark.

       The evidence establishes that the property in question was a (vacated) personal

       residence, located in a “built up residential area”. Transcript at 29. It was not a

       storage barn/shed/building. Further, Enslen’s stated intention has always been

       to work on the house and bring it up to code once “money became available”.

       Id. at 19.


[22]   In sum, the APC sufficiently established that the home qualifies as an unsafe

       building under I.C. § 36-7-9-4(a)(6). Moreover, Enslen has failed to establish a

       constitutional violation. The trial court’s judgment in favor of the APC,

       therefore, is not clearly erroneous.


[23]   Judgment affirmed.


[24]   Bailey, J. and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 27A04-1512-OV-2109 | July 13, 2016   Page 10 of 10
