MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Oct 08 2019, 8:57 am

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
Zachary J. Stock                                         Daniyal M. Habib
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Barry Atwell,                                            October 8, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-OV-2978
        v.                                               Appeal from the Marion Superior
                                                         Court
City of Indianapolis,                                    The Honorable Cynthia J. Ayers,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49D04-1804-OV-15254



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-OV-2978 | October 8, 2019                   Page 1 of 11
                                             Case Summary
[1]   Barry Atwell appeals the trial court’s finding that he committed a zoning

      violation, as well its entry of an injunction and imposition of a fine against him

      and in favor of the City of Indianapolis (the “City”). We affirm.


                                                     Issue
[2]   Atwell raises two issues on appeal, which we restate as follows:


              I. Whether the trial court erred in rejecting Atwell’s claimed
              defense that his maintenance of poultry on his D-5-zoned
              premises was a legally established non-conforming use.


              II. Whether Atwell’s act of raising and keeping a poultry flock on
              his premises was a lawful accessory use.


                                                     Facts
[3]   The instant case stems from the City’s allegation that Atwell raised and kept

      poultry on his residential premises in violation of a Marion County zoning

      ordinance. In February 1999, Atwell purchased one-third of an acre of real

      property (the “premises”) in Indianapolis. At the time, the premises were

      zoned, “Dwelling District Five” (“D-5”) in the Revised Code of the

      Consolidated City of Indianapolis and Marion County (“Revised Code”). The

      zoning designation of the premises has not since changed. In 2013, Atwell and

      his wife, Sherri, began to raise a flock of poultry, comprised of chickens,

      turkeys, and roosters (the “flock”), on the premises.



      Court of Appeals of Indiana | Memorandum Decision 18A-OV-2978 | October 8, 2019   Page 2 of 11
[4]   In 2016, the City revised its ordinances to permit landowners to raise no more

      than twelve chickens and one rooster in D-5 zoning areas. See Revised Code,

      Table 743-306-3 (“No more than twelve chickens, quail, pigeons, and ducks are

      allowed on a Marion County lot of any size.”). The 2016 revision did not lift

      the prohibition on raising and keeping turkeys in D-5 zoning areas. At the time

      of the 2016 zoning revision and beyond, Atwell maintained multiple roosters

      and turkeys on the premises, as well as more than twelve chickens. At its

      largest, Atwell’s flock exceeded fifty-five birds.


[5]   On August 2, 2017, the City issued a notice of violation to Atwell. Following

      an inspection, the City determined that Atwell repeatedly failed to remedy the

      alleged violation. On April 20, 2018, the City filed a complaint in which the

      City alleged that Atwell violated Section 743-306(V) of the Revised Code by

      conducting activity not permitted in a D-5 zoning area—namely, “keeping

      turkeys, more than one rooster, and more than 12 chickens” on the D-5-zoned

      premises. See Appellant’s App. Vol. II p. 9. The City sought a fine, a

      permanent injunction, and an order requiring Atwell to remedy the violation.


[6]   On August 24, 2018, Atwell filed his answer and asserted, as an affirmative

      defense, that his maintenance of poultry on the premises was a “legally

      established non-conforming use.” Id. at 13. The trial court conducted a

      hearing on August 29, 2018. At the hearing, the parties stipulated that Atwell

      presently maintained more than twelve chickens, more than one rooster, and

      multiple turkeys on the premises. Witnesses for the City testified to the

      foregoing facts. In his defense, Atwell testified that, because he already

      Court of Appeals of Indiana | Memorandum Decision 18A-OV-2978 | October 8, 2019   Page 3 of 11
      maintained his flock before the City enacted the 2016 ordinance, his use of the

      premises—for keeping poultry for personal use and consumption—qualified as

      a legally established non-conforming use.


[7]   After the hearing, the trial court found that the City proved the alleged violation

      by a preponderance of the evidence; ordered the parties to submit an agreed

      proposed order; and invited the parties to request a hearing, if the parties failed

      to reach an agreement. On October 24, 2018, after the parties failed to reach an

      agreement, the trial court conducted a post-trial hearing and entered its final

      order wherein the trial court: (1) found that the City proved the violation by a

      preponderance of the evidence; (2) ordered Atwell to reduce the size of his flock

      to not more than twelve chickens and not more than one rooster, and also to

      remove all turkeys from the premises; (3) required Atwell to allow a City

      inspection of the premises on November 27, 2018; (4) scheduled a compliance

      hearing for November 28, 2018; (5) assessed a $75.00 fine; and (6) permanently

      enjoined Atwell from exceeding specified limits on poultry and animals on the

      premises. Atwell timely filed a motion to correct error; the trial court denied

      the motion on December 7, 2018 but stayed enforcement of the final order

      pending our resolution of this appeal.


                                                  Analysis
[8]   Atwell argues that the trial court erred in finding the zoning violation, in

      enjoining him from maintaining poultry and animals on the premises in excess

      of specified limits, and in assessing the fine. Specifically, Atwell maintains that

      he had a valid defense to the alleged zoning violation.
      Court of Appeals of Indiana | Memorandum Decision 18A-OV-2978 | October 8, 2019   Page 4 of 11
[9]    The interpretation of a zoning ordinance is a question of law that is reviewed de

       novo. County of Lake v. Pahl, 28 N.E.3d 1092, 1102-03 (Ind. Ct. App. 2015).

       The ordinary rules of statutory construction apply in interpreting the language

       of a zoning ordinance. Id. at 1103. Words are to be given their plain, ordinary,

       and usual meaning, unless a contrary purpose is shown by the statute or

       ordinance itself. Id. 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. Furthermore, zoning regulations that inhibit the use

       of real property are in derogation of the common law and are strictly construed.

       Id. The courts construe a zoning ordinance to favor the free use of land and

       will not extend restrictions by implication. Id.


[10]   Also, regarding the entry of an injunction against Atwell, 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 Cnty., Ind., 752 N.E.2d 99, 104 (Ind. Ct. App.

       2001), trans. denied. An abuse of discretion occurs when the trial court’s

       decision is clearly against the logic and effect of the facts and circumstances or

       if the trial court misinterprets the law. Id.


                                            I. Applicable Ordinances

[11]   Section 740-1002 of the of the Consolidated City of Indianapolis and Marion

       County (“Revised Code”) authorizes the metropolitan development

       commission of Marion County to seek injunctive and monetary relief against


       Court of Appeals of Indiana | Memorandum Decision 18A-OV-2978 | October 8, 2019   Page 5 of 11
       any person or entity for violating a Marion County zoning ordinance or land

       use regulation. Pursuant to Section 740-1005.A.7:


               [i]t shall be unlawful for any person who is the owner . . . of, or
               who has a possessory interest in, real property located in Marion
               County to cause, suffer or allow any of the following civil zoning
               violations to occur on such property: . . . The conduct of any
               activity in a zoning district, not specifically enumerated as a
               permitted primary or accessory use in that zoning district, and
               which activity has not been legally established by a currently
               valid variance, special exception or other approval grant.


[12]   Prior to 2015, the City prohibited landowners from raising and keeping poultry

       in D-5 zoning areas as provided under Revised Code Section 743-207 (2010).

       At the time, Section 731-207 described the “statement of purpose” and

       “permitted uses” applicable to D-5 zoning areas as follows:


               Statement of purpose. The D-5 district is intended for areas of
               medium intensity single-family residential development. The
               application of this district will be found within urban, built-up
               areas of the community, and where all urban public and
               community facilities, and services are available. The district is
               not intended for suburban use. * * * * *


               (a) Permitted D-5 uses. The following uses shall be permitted in
               the D-5 district. Only one primary use shall be permitted per lot,
               All uses in the D-5 district shall conform to the D-5 development
               standards (section 731-207(b)) and the dwelling district
               regulations of section 731-200.


                        (1) Primary uses.



       Court of Appeals of Indiana | Memorandum Decision 18A-OV-2978 | October 8, 2019   Page 6 of 11
                           a. Single-family dwelling, including a manufactured
                           home as regulated in section 731-222.


                           b. Two-family dwelling.


                           c. Group home, as defined in section 731-102 and as
                           regulated in section 731-200(a)(8).


                           d. Religious use, as regulated in section 731-224.


                  (2) Temporary uses, as regulated in section 731-218.


                  (3) Accessory uses, as regulated in section 731-219. [The
                  stated accessory uses listed in the 2010 version of the
                  Revised Code, did not include the raising and keeping of
                  poultry].


                  (4) Home occupations, as regulated in section 731-220.


Appellant’s App. Vol. II p. 36. Thus, in 2013, Section 731-207 of the Revised

Code did not include the raising and keeping of poultry as being within the

stated purpose, permitted uses, or accessory uses of D-5 premises; however, the

City permitted landowners to raise and keep poultry on premises that were

designated as D-A zoning areas. 1




1
  Atwell’s premises have never been designated a D-A zoning area. D-A zoning areas are: “inten[ded] to
provide for the production, keeping or maintenance . . . of poultry and poultry products; the breeding or
grazing of animals . . . .” Revised Code, Section 731-201; Appellant’s App Vol. II p. 37. Permitted uses of
D-A zoning areas include “grazing or feeding of livestock for animal increase or value increase.” Id.


Court of Appeals of Indiana | Memorandum Decision 18A-OV-2978 | October 8, 2019                  Page 7 of 11
[13]   In a 2016 amendment to the Revised Code, pursuant to Section 743-306(W) 2 of

       the Revised Code, the City revised the zoning rules to permit landowners in D-

       5 zoning areas to maintain no more than twelve chickens and one rooster 3 on

       D-5 premises. The 2016 revision did not lift the prohibition on raising and

       keeping turkeys in D-5 zoning areas.


                                    II. Legally Established Nonconforming Use

[14]   Atwell argues that the trial court erred in: (1) failing to recognize his claimed

       defense that he engaged in a legally established non-conforming use of the

       premises; and (2) finding that he committed a zoning violation. Zoning

       ordinances are tools that governments rightfully use to restrict the use of real

       property. Board of Public Works of City of Hammond v. Alcantar, 47 N.E.3d 1276,

       1282 (Ind. Ct. App. 2016). “[A] municipality’s right to enact zoning restrictions

       is subject to the vested property interests acquired prior to the enactment of the

       ordinances.” Id. An ordinance that prohibits “continuation of an existing

       lawful use within a zoned area is unconstitutional as a taking of property

       without due process of law and as an unreasonable exercise of police power.”

       Id.


[15]   “[A] non-conforming use is . . . a use of premises which lawfully exists prior to

       the enactment of a zoning ordinance and which is allowed to be maintained or



       2
           This Section was codified at Section 743-306(V) when the City filed its complaint.
       3
         Section 743-306.W.5 provides that “[r]oosters are limited to one per lot and between dusk to dawn the
       rooster must be kept inside an enclosed coop or similar fully-enclosed structure.”


       Court of Appeals of Indiana | Memorandum Decision 18A-OV-2978 | October 8, 2019                 Page 8 of 11
       continued after the effective date of the ordinance although it does not comply

       with the use regulations applicable in the area.” Alcantar, 47 N.E.3d at 1282).

       See Metro. Dev. Com’n v. Worth Outdoor, LLC, No. 19A-OV-212, slip op. at 2

       (Ind. Ct. App. August 16, 2019) (“[A] nonconforming use is a use of property

       that lawfully existed prior to the enactment of a zoning ordinance that

       continues after the ordinance’s effective date even though it does not comply

       with the ordinance’s restrictions.”).


[16]   A person who claims a legal non-conforming use has the burden of establishing

       the claim. Alcantar, 47 N.E.3d 1282. “The method for establishing a non-

       conforming use is to prove that the [lawful] use began prior to the applicable

       zoning ordinance.” Metr. Dev. Com’n v. Schroeder, 727 N.E.2d 742, 750 (Ind. Ct.

       App. 2000). Thus, to prevail, it was incumbent upon Atwell to establish that,

       before the 2016 ordinance revision took effect, he lawfully raised and kept

       poultry on his D-5-zoned premises. Atwell cannot carry his burden.


[17]   The record establishes that it was not lawful, under the Revised Code, to keep

       and raise poultry in D-5 zoning areas when Atwell began raising his poultry

       flock in 2013. When Atwell began maintaining poultry on the premises in

       2013, the raising and keeping of poultry was not a lawful use of D-5-zoned

       property according to Section 731-207, which prescribed the stated purpose of

       D-5 zoning areas and listed both permitted and accessory uses and did not

       include the maintenance of poultry. Consequently, Atwell cannot carry his

       burden of demonstrating a legally established non-conforming use because his

       use of the premises, before the 2016 zoning ordinance, was already unlawful.

       Court of Appeals of Indiana | Memorandum Decision 18A-OV-2978 | October 8, 2019   Page 9 of 11
[18]   In light of the foregoing, we find that: (1) the trial court did not err in finding

       that Atwell failed to establish a legally established nonconforming use; and (2)

       the grant of the injunction was neither an abuse of discretion nor arbitrary. See

       Dierckman, 752 N.E.2d at 104.


                                                 III. Accessory Use

[19]   Next, Atwell contends that maintaining a poultry flock was a lawful accessory

       use of the premises before the enactment of the 2016 zoning ordinance. The

       State counters—and we agree—that this issue is waived. As the State argues:


               At trial[,] Atwell argued that he had a legal nonconforming use
               based only on the existence of his property use. [ ] Atwell never
               argued the lawfulness of his property use at the time, and thus
               never made the argument that his flock was a lawful accessory
               use. A reading of the trial transcript shows that neither Atwell,
               nor his counsel, mentioned the phrase “accessory use” at any
               point. The only mention of an accessory use was a cursory
               mention by a witness for the City; and although it would have
               been improper for Atwell to raise the issue for the first time in his
               Motion to Correct Error, he does not do so in that motion either.


       City’s Br. p. 18. Atwell failed to raise the “lawful accessory use” issue before

       the trial court; thus, we are unable to address it. See Breneman v. Slusher, 768

       N.E.2d 451, 463 (Ind. Ct. App. 2002) (providing that issues raised for the first

       time on appeal are waived).


                                                 Conclusion
[20]   Atwell failed to prove that he had a legally established non-conforming use for

       the premises, and the trial court did not err in finding that Atwell’s maintenance
       Court of Appeals of Indiana | Memorandum Decision 18A-OV-2978 | October 8, 2019   Page 10 of 11
       of a poultry flock on D-5 premises was a zoning violation. The trial court did

       not abuse its discretion in imposing the permanent injunction. Atwell’s “lawful

       accessory use” argument is waived. We affirm.


[21]   Affirmed.


       Brown, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-OV-2978 | October 8, 2019   Page 11 of 11
