MEMORANDUM DECISION
                                                                   Feb 02 2016, 8:36 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
Jeffrey J. Lorenzo                                        Rodney E. Farrow
Lorenzo & Bevers                                          Farrow & Thompson, P.C.
Seymour, Indiana                                          Seymour, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Thomas J. Fenton and Cheryl D.                            February 2, 2016
Fenton,                                                   Court of Appeals Case No.
                                                          36A04-1503-OV-136
Appellants-Defendants,
                                                         Appeal from the Jackson Superior
        v.                                               Court
                                                         The Honorable Bruce Markel, III,
                                                         Judge
City of Seymour, Indiana,
                                                         Cause No. 36D01-1408-OV-35 &
Appellee-Plaintiff.                                      36D01-1408-OV-36




Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 36A04-1503-OV-136 | February 2, 2016    Page 1 of 9
                                   STATEMENT OF THE CASE

[1]   Appellants-Defendants, Thomas J. Fenton (Thomas) and Cheryl D. Fenton,

      (Cheryl) (collectively, the Fentons), appeal the trial court’s judgment holding

      them in violation of the City of Seymour zoning ordinance.


[2]   We reverse.


                                                     ISSUE

[3]   The Fentons raised three issues, one of which we find dispositive and which we

      restate as: Whether the trial court properly interpreted that the City of

      Seymour’s zoning ordinance is applicable to the paving of a car dealership’s

      parking lot.


                           FACTS AND PROCEDURAL HISTORY

[4]   On June 18, 2010, an agent for the Fentons submitted an application for an

      improvement location permit to Appellee-Plaintiff, the City of Seymour

      (Seymour) to construct a used automobile dealership on the premises. The

      application was subsequently granted. The car dealership is located on a lot

      situated on a main highway running through Seymour, with a sales inventory

      of approximately seventy vehicles. While the majority of the surface lot is

      unpaved, it has a small paved lot near the garage, used for customer parking.

      After the issuance of the permit, Seymour periodically inspected the site as

      improvements occurred to ensure compliance with City Building Codes.




      Court of Appeals of Indiana | Memorandum Decision 36A04-1503-OV-136 | February 2, 2016   Page 2 of 9
[5]   On June 19, 2013, Seymour issued a Notice of Non-Compliance to the

      Fentons, alerting them that the property was not in compliance with the paving

      requirements as included in section 157.086(J)(5) of the City’s zoning

      ordinance. Seymour offered the Fentons two options to rectify this situation:

      “1. Begin [p]aving and covering the lot per Ordinance Specifications. [or] 2.

      Apply for a Variance.” (Plaintiff’s Exh. 2). The Fentons failed to comply. On

      January 17, 2014, Seymour sent a second Notice of Non-Compliance in which

      Seymour noted that “[f]ailure to comply will result in [Seymour] commencing

      legal action to insure compliance.” (Plaintiff’s Exh. 3). Again, the Fentons did

      not correct the situation.


[6]   On August 6, 2014, Seymour filed a Complaint for Infraction against Thomas,

      alleging that he was in violation of section 157.086 of Seymour’s zoning

      ordinances for his “failure and refusal to pave a parking lot owned by him and

      [Cheryl].” (Appellant’s App. p. 7). An identical Complaint was filed by

      Seymour against Cheryl. On October 1, 2014, the trial court conducted a bench

      trial. On November 20, 2014, the trial court issued its judgment, determining

      that Thomas was in violation of § 157.086 of Seymour’s zoning ordinance and

      assessing fines of twenty-five dollars per day of non-compliance. The trial court

      issued an identical judgment against Cheryl. On December 16, 2014, both

      Thomas and Cheryl filed a motion to correct error, which was denied by the

      trial court on March 2, 2015.




      Court of Appeals of Indiana | Memorandum Decision 36A04-1503-OV-136 | February 2, 2016   Page 3 of 9
[7]   The Fentons now appeal. 1 Additional facts will be provided as necessary.


                                   DISCUSSION AND DECISION

[8]   The Fentons contend that the trial court erred when it found them in violation

      of Seymour’s zoning ordinance. Construction of a zoning ordinance is a

      question of law. Flying J., Inc. v. City of New Haven, Bd. of Zoning Appeals, 855

      N.E.2d 1035, 1039 (Ind. Ct. App. 2006), trans. denied. Zoning regulations that

      inhibit the use of real property are in derogation of the common law and are

      strictly construed. Discovery House, Inc., v. Metro Bd. of Zoning Appeals of Marion

      Co., 701 N.E.2d 577, 579 (Ind. Ct. App. 1998), trans. denied. Instead, we

      construe a zoning ordinance to favor the free use of land and will not extend

      restrictions by implication. Saurer Bd. of Zoning Appeals, 629 N.E.2d 893, 898

      (Ind. Ct. App. 1994). We review questions of law under a de novo standard

      and owe no deference to a trial court’s legal conclusions. Int’l Union of Police

      Ass’ns Local No. 133 v. Ralston, 872 N.E.2d 682, 687 (Ind. Ct. App. 2007).


[9]   When asked to interpret an ordinance, this court will apply the same principles

      as those employed for the construction of statutes. T.W. Thom Constr., Inc. v.

      City of Jeffersonville, 721 N.E.2d 319, 324 (Ind. Ct. App. 1999). The cardinal rule

      of statutory construction is to ascertain the intent of the drafter by giving effect

      to the ordinary and plain meaning of the language used. Id. Thus, we are not




      1
       It should be noted that Thomas and Cheryl filed a separate notice of appeal. We consolidated both causes
      of action under a single appellate cause number on September 22, 2015.

      Court of Appeals of Indiana | Memorandum Decision 36A04-1503-OV-136 | February 2, 2016         Page 4 of 9
       at liberty to construe a statute that is unambiguous. 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 statute. Id.


[10]   Focusing on section 157.086(J) of the zoning ordinance, the Fentons argue that

       they own and operate an automobile dealership, which is exempt from the

       provisions of the ordinance. Section 157.086(J) provides, in pertinent part:

               (J) Parking and loading space specifications
               (1) All loading areas and all off-street parking areas for four or more
               vehicles shall be developed in accordance with the standards of this
               section, except for one-and two-family dwellings, agricultural and rural
               uses and storage of vehicular merchandise not counting toward the
               minimum requirements of this chapter.
               ***
               (5) All open off-street parking and loading areas, including driveways
               and other circulation areas, shall be surfaced with an all-weather
               paving material capable of carrying a wheel load of 4,000 pounds, or
               improved with concrete or a compacted macadam base and surfaced
               with an asphalted pavement, to adequately provide a durable and dust-
               free surface which shall be maintained in good condition and free of
               weeds, dirt, trash and debris. Parking spaces associated with one-or
               two-family dwelling are exempt from the paving requirements but shall
               be maintained with a dust-free surface.
       (Defendant’s Exh.).


[11]   Pointing toward the “except” language in subsection (J)(1), the Fentons

       contend that its business is properly categorized as the “storage of vehicular

       merchandise” and therefore the lot is not subject to the paving requirements

       included in subsection (J)(5).



       Court of Appeals of Indiana | Memorandum Decision 36A04-1503-OV-136 | February 2, 2016   Page 5 of 9
[12]   Initially, we note that “storage of vehicular merchandise” is not defined in the

       zoning ordinance. Undefined words in a statute or ordinance are given their

       plain, ordinary, and usual meaning. 600 Land, Inc. v. Metropolitan Bd. of Zoning

       Appeals of Marion Co., 889 N.E.2d 305, 309 (Ind. 2008). In their application, the

       Fentons alerted Seymour that it was their intention to build an automobile

       dealership on the lot, with its principal use to store, display, and offer vehicles

       for sale. Relying on the common meaning, it is difficult to envision an

       automobile dealership not falling within the ordinance’s phrase of “storage of

       vehicular merchandise.”


[13]   Section (A) of ordinance 157.086 defines the “[p]urpose and [i]ntent” of the

       ordinance, stating, in particular:

               Accessory off-street parking . . . shall be provided and maintained for
               all buildings . . . . These regulations are designed to alleviate or prevent
               congestion of the public streets by establishing minimum requirements for on-
               site storage of motor vehicles in accordance with the use to which the property is
               occupied.
       City of Seymour, Ind. Code § 157.086(A) (emphasis added).


[14]   Section (D) describes in detail “[p]arking standards” and the minimum width

       and length requirements in accordance with “[v]ehicle, space type.” It also

       details minimum “[p]arking [a]isle [w]idths” in accordance with the “[p]arking

       angle” of the off-street parking location. Id. § 157.086(D). This section requires

       that “[a]ll off-street parking . . . shall be designated with appropriate means of

       vehicular access to a street or ally in a manner that least interferes with traffic

       movement.” Id.

       Court of Appeals of Indiana | Memorandum Decision 36A04-1503-OV-136 | February 2, 2016       Page 6 of 9
[15]   Section (E) describes “[m]inimum off-street parking space requirements.” This

       section details how to calculate “the minimum required number of off-street

       parking or loading spaces.” Id. §157.086(E). Sections (H) and (I) describe,

       respectively, “stacking” parking spaces, such as for a bank teller lane or a car

       wash, and accessible parking for physically challenged persons. Id. §

       157.086(H), (I). And subsection (K) describes alternatives to off-street parking.


[16]   Further, section (L)(1) states:

               Accessory off-street parking facilities . . . shall be utilized solely for the
               parking of passenger automobiles . . . of patrons, occupants or
               employees of specified uses. Such parking facilities shall not be used
               for the storage, display, [or] sales . . . of any vehicle, equipment or
               material.
[17]   All of those sections inform the interpretation of section (J), which is at issue in

       this appeal. Section (J) then further describes various other off-street parking

       specifications. As stated above, section (J)(1) requires “all . . . off-street parking

       areas for four or more vehicles [to] be developed in accordance with this

       section, except for one- and two-family dwellings, agricultural and rural uses

       and storage of vehicular merchandise not counting toward the minimum

       requirements of this chapter.” Section (J)(5) then requires off-street parking

       spaces to be paved.


[18]   Seymour also asserts that the “paving requirement set out in § 157.086(J)(5)

       plainly applies to ALL off-street parking areas . . . [t]here are no exceptions for

       automobile dealerships.” (Appellee’s Br. p. 4). In effect, Seymour asserts that

       subsection (5) should be read independently from subsection (1). Again, we

       Court of Appeals of Indiana | Memorandum Decision 36A04-1503-OV-136 | February 2, 2016   Page 7 of 9
       disagree. The meaning of a single subsection of an ordinance is to be

       considered with other subsections of the same section and within the same

       chapter. See e.g., Raider v. Pea, 613 N.E.2d 870, 872 (Ind. Ct. App. 1993). We

       do not construe one provision of an ordinance in isolation; rather we consider

       an ordinance as a whole and consider a single provision in reference to the

       other provisions. See id. Likewise, two statutory provisions covering the same

       subject are to be harmonized if possible. Id. The numerous sections in

       ordinance 157.086 thoroughly demonstrate that the ordinance exists to regulate

       off-street parking and to facilitate the flow of traffic on public streets. The

       ordinance does not regulate a car dealership’s display of vehicular merchandise.


[19]   However, insofar as Seymour contends that section (J)(1) is ambiguous, section

       (L)(1) expressly dispels any such ambiguity. Section (L)(1) states that off-street

       parking facilities are for a business’ “patrons” and “shall not be used for the

       storage, display, [or] sales . . . of any vehicle, equipment or material.” In other

       words, the paving requirement under Section 157.086 not only applies to off-

       street parking facilities but also expressly excludes property used to display a

       dealer’s vehicular inventory offered for sale.


[20]   In sum, section (J)(1) expressly clarifies that “[a]ll loading areas and all off-

       street parking areas for four or more vehicles shall be developed in accordance

       with the standards of this section, except …storage of vehicular merchandise[.]”

       (emphasis added). Accordingly, an automobile dealership, as a storage of

       vehicular merchandise, is exempt from the paving requirements of subsection



       Court of Appeals of Indiana | Memorandum Decision 36A04-1503-OV-136 | February 2, 2016   Page 8 of 9
       (J)(5) and the minimum requirements of chapter 157.086. As a result, we

       reverse the trial court’s judgments against Thomas & Cheryl Fenton. 2


                                                   CONCLUSION

[21]   Based on the foregoing, we reverse the trial court’s judgment because an

       automobile dealership is not subject to the paving requirements of Seymour’s

       zoning ordinance.


[22]   Reversed.


[23]   Najam, J. and May, J. concur




       2
         Seymour also assert that the trial court’s judgment should be affirmed because the “Fentons failed to
       exhaust their administrative remedies. However, because Seymour failed to raise this argument before the
       trial court and now asserts it for the first time on appeal, Seymour has waived the argument for our review.
       See, e.g., Felsher v. Univ. of Evansville, 755 N.E.2d 589, 593 n.6 (Ind. 2001). Moreover, it should be noted that
       the parties were in the trial court because Seymour filed suit against the Fentons, not because the Fentons
       filed suit against Seymour. Thus, Seymour’s argument in essence seems to be that the Fentons are not
       permitted to respond to a complaint filed against them. We reject that proposition.

       Court of Appeals of Indiana | Memorandum Decision 36A04-1503-OV-136 | February 2, 2016                 Page 9 of 9
