MEMORANDUM DECISION
                                                                       Feb 27 2015, 6:41 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE
Dale W. Arnett                                             David A. Kruse
Winchester, Indiana                                        Kruse & Kruse P.C.
                                                           Auburn, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Stan Kruse,                                               February 27, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          17A03-1406-PL-227
        v.                                                Appeal from the DeKalb Circuit
                                                          Court.
                                                          The Honorable Kirk D. Carpenter,
DeKalb County Plan                                        Judge.
Commission,                                               Cause No. 17C01-0512-PL-42
Appellee-Plaintiff




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision [Case number] | February 27, 2015           Page 1 of 6
[1]   Stanley Kruse appeals the trial court’s order granting summary judgment in

      favor of the DeKalb County Plan Commission. The trial court granted the

      Commission’s request for an injunction against Kruse, who the trial court found

      had violated certain zoning ordinances when he constructed a residence

      without the required approval. Finding no error, we affirm.


                                                     Facts
[2]   In 1964, DeKalb County enacted a Master Zoning Plan, which is regulated and

      enforced by a series of ordinances. Among other things, the ordinances provide

      that only one residence may be located on each lot. Appellant’s App. p. 12. To

      build a second residence on a lot, it must be subdivided. The nature of a parcel

      of land in 1964, when the Master Zoning Plan was enacted, determines whether

      it is a single lot, also called a “base tract.” If “the Lot was a single parcel in

      single ownership” in 1964, then the lot is considered to be a single “base tract”

      today. Id. The Master Zoning Plan also requires that no structure may be built

      in DeKalb County without first obtaining an Improvement Location Permit.

      The Master Zoning Plan includes a farm exemption to the above requirements:

              “Land, farm houses, farm barns, farm outbuildings or other buildings,
              structures or erections which are adapted, by reason of nature and
              area, for use for agricultural purposes as a primary means of
              livelihood, while so used, shall not be affected by restrictions or
              regulations of this ordinance.”
      Id. at 24-25 (quoting Zoning Ordinance Section 11(O)).


[3]   In 1964, Howard and Roberta Smith owned approximately forty acres of land

      in DeKalb County (the Base Tract). At some point in time, Howard Grimm

      Court of Appeals of Indiana | Memorandum Decision [Case number] | February 27, 2015   Page 2 of 6
      obtained title to this land following a foreclosure action. On July 13, 1990,

      Grimm sold a portion of the Base Tract. Specifically, he transferred title to a

      mobile home, plus 1.24 acres on which the mobile home was located (the

      Homestead Tract), to Rick and Sheryl Truelove. Between 1964 and 1993,

      various acreage was added and transferred away from the original Base Tract of

      forty acres, such that the parcel of land totaled 59.2 acres in 1993.


[4]   On April 14, 1993, Kruse bought the 59.2-acre tract of land from Grimm’s

      estate. A recital on the deed required him to continue to use the land as part of

      the conservation reserve program (CRP): “[t]he above-described real estate is

      subject to a [CRP] contract with the [Agricultural Stabilization and

      Conservation Service] office of the U.S. [Department of Agriculture] and the

      Grantee by receipt of this Deed agrees to continue this governmental program

      for its duration.” Appellant’s App. p. 126. The United States Department of

      Agriculture [USDA] defines the CRP as follows:

              The Conservation Reserve Program (CRP) is a land conservation
              program administered by the Farm Service Agency (FSA). In
              exchange for a yearly rental payment, farmers enrolled in the program
              agree to remove environmentally sensitive land from agricultural production
              and plant species that will improve environmental health and quality.
              Contracts for land enrolled in CRP are 10-15 years in length. The long-
              term goal of the program is to re-establish valuable land cover to help
              improve water quality, prevent soil erosion, and reduce loss of wildlife
              habitat.
      U.S.D.A., Conservation Reserve Program, available at

      http://www.fsa.usda.gov/FSA/webapp?area=home&subject=copr&topic=crp

      (last visited January 30, 2015) (emphasis added).


      Court of Appeals of Indiana | Memorandum Decision [Case number] | February 27, 2015   Page 3 of 6
[5]   In 1996, Kruse built a residence on his land. He did not obtain an

      Improvement Location Permit and did not apply for or obtain subdivision

      approval. And because the residence on the Homestead Tract is considered to

      be a residence on the Base Tract, Kruse’s 1996 residence constitutes an

      unauthorized second residence on the Base Tract.


[6]   In 2002 and 2003, the Commission sent letters to Kruse notifying him that he

      was in violation of local ordinances. He did not appeal those findings of

      violations to the Board of Zoning Appeals. On December 22, 2005, the

      Commission filed a complaint against Kruse based upon the ordinance

      violations. Over the next eight years, Kruse repeatedly told the Commission

      that he would apply for a simple division of land, which would bring his

      property in compliance with the ordinances, and the Commission repeatedly

      asked and received continuances from the trial court to afford Kruse the time to

      do so. Kruse never applied for a division of land.


[7]   On November 13, 2013, the Commission filed a motion for summary

      judgment, which Kruse opposed. Following briefing and a hearing, on June 3,

      2014, the trial court granted summary judgment in favor of the Commission.

      Among other things, the trial court ordered as follows: (1) Kruse is to cease use

      of his residence and is ordered to remove the residence from his property;

      (2) Kruse is enjoined from placing the residence on other property in DeKalb

      County and from placing another residence on his own property without proper

      approval from zoning authorities; and (3) Kruse is to pay a fine of $2,500.

      Kruse now appeals.

      Court of Appeals of Indiana | Memorandum Decision [Case number] | February 27, 2015   Page 4 of 6
                                    Discussion and Decision
[8]   Our standard of review on summary judgment is well established:

              We review summary judgment de novo, applying the same standard as
              the trial court: “Drawing all reasonable inferences in favor of . . . the
              non-moving parties, summary judgment is appropriate ‘if the
              designated evidentiary matter shows that there is no genuine issue as
              to any material fact and that the moving party is entitled to judgment
              as a matter of law.’ ” Williams v. Tharp, 914 N.E.2d 756, 761 (Ind.
              2009) (quoting T.R. 56(C)). “A fact is ‘material’ if its resolution would
              affect the outcome of the case, and an issue is ‘genuine’ if a trier of fact
              is required to resolve the parties’ differing accounts of the truth, or if
              the undisputed material facts support conflicting reasonable
              inferences.” Id. (internal citations omitted).
              The initial burden is on the summary-judgment movant to
              “demonstrate [ ] the absence of any genuine issue of fact as to a
              determinative issue,” at which point the burden shifts to the non-
              movant to “come forward with contrary evidence” showing an issue
              for the trier of fact. Id. at 761–62 (internal quotation marks and
              substitution omitted). And “[a]lthough the non-moving party has the
              burden on appeal of persuading us that the grant of summary
              judgment was erroneous, we carefully assess the trial court’s decision
              to ensure that he was not improperly denied his day in
              court.” McSwane v. Bloomington Hosp. & Healthcare Sys., 916 N.E.2d
              906, 909–10 (Ind. 2009) (internal quotation marks omitted).
      Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).


[9]   On appeal, Kruse does not deny that when he built his residence in 1996, it

      constituted a second residence on the Base Tract. He also does not deny that he

      has not applied for a subdivision of the land or for an Improvement Location

      Permit. His sole argument on appeal is that the farm exemption applies to his

      land, such that he was not required to comply with the relevant ordinances.



      Court of Appeals of Indiana | Memorandum Decision [Case number] | February 27, 2015   Page 5 of 6
[10]   As noted above, Zoning Ordinance Section 11(O) establishes that the farm

       exemption applies to land that is used “for agricultural purposes as a primary

       means of livelihood, while so used[.]” Appellant’s App. p. 24-25 (emphasis

       added). Initially, we note that Kruse built his residence in 1996. There is no

       evidence in the record regarding his use of the land until 2011, when he attests

       that he retired as an electrician and his primary means of livelihood became

       agriculture. This evidence does not create an issue of fact regarding the use of

       the land for agricultural purposes between 1996 and 2011.


[11]   In any event, however, it is undisputed that Kruse purchased this land subject

       to a condition in the deed that he continue participating with the CRP. As

       noted by the trial court, “Land in a conservation reserve program can not, by

       definition, be farmed. And, therefore can not be farm exempt.” Id. at 25. We

       agree. As noted above, the USDA explicitly notes that landowners who

       participate in the CRP agree to remove the land from agricultural production.

       Because Kruse’s land is subject to the CRP, it cannot possibly be used for

       agricultural purposes unless and until the CRP contract expires. As such, there

       is no possible way for the farm exemption to apply. We find that the trial court

       did not err in granting summary judgment in the Commission’s favor.


[12]   The judgment of the trial court is affirmed.


       Vaidik, C.J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision [Case number] | February 27, 2015   Page 6 of 6
