MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be
                                                                       Sep 09 2019, 8:49 am
regarded as precedent or cited before any
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
Patrick B. McEuen                                        PORTER COUNTY BOARD OF
McEuen Law Office                                        ZONING APPEALS
Portage, Indiana                                         Nathaniel C. Henson
                                                         Rhame Elwood & McClure
                                                         Portage, Indiana
                                                         ATTORNEY FOR APPELLEES
                                                         WILLIAM GREMP, TAMMIE
                                                         CHAMPIE, ROBERT SHUDICK,
                                                         SHARON SHUDICK, JERRY
                                                         UITERMARKT, KEITH ELLIS,
                                                         KRISTIN ELLIS, ED LAURIDSON,
                                                         MARCIA LAURIDSON, AND
                                                         NEAL MOLENGRAFT
                                                         Charles F.G. Parkinson
                                                         Harris Welsh & Lukmann
                                                         Chesterton, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA




Court of Appeals of Indiana | Memorandum Decision 18A-MI-3134 | September 9, 2019               Page 1 of 11
      Virginia Novak,                                          September 9, 2019
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               18A-MI-3134
              v.                                               Appeal from the
                                                               Porter Superior Court
      Porter County Board of Zoning                            The Honorable
      Appeals,                                                 Roger V. Bradford, Judge
      Appellee-Plaintiff,                                      Trial Court Cause No.
                                                               64D01-1710-MI-9592
              and
      William Gremp, Tammie
      Champie, Robert Shudick,
      Sharon Shudick, Jerry
      Uitermarkt, Keith Ellis, Kristin
      Ellis, Ed Lauridson, Marcia
      Lauridson, and Neal Molengraft,
      Appellees-Intervenors



      Vaidik, Chief Judge.



                                          Case Summary
[1]   Virginia Novak owns a fifty-acre homestead in Valparaiso that includes a

      private road used by her neighbors to access their homes. In 2017, Novak

      began regrading and transporting fill onto part of her property, including along

      the private road. The Porter County Board of Zoning Appeals (BZA) filed a

      complaint for injunctive relief, alleging that Novak violated an ordinance that

      requires property owners to obtain a permit before engaging in land-disturbing

      activities affecting more than 10,000 square feet. The trial court granted the


      Court of Appeals of Indiana | Memorandum Decision 18A-MI-3134 | September 9, 2019    Page 2 of 11
      injunction, enjoining Novak from transporting fill onto her property and

      ordering her to remove any fill that was placed along the private road. Novak

      now appeals, arguing that she is exempt from the ordinance’s permit

      requirement. Because the trial court correctly found that the permit

      requirement applies to Novak, we affirm.



                            Facts and Procedural History
[2]   Novak owns fifty acres of land on West Joliet Road in Porter County, Indiana.

      She has lived there since 1968. Her property includes a sixteen-foot-wide access

      easement (the “private road”) that runs north and south along her entire

      western property line. The private road is the only way that Novak’s neighbors,

      who live north of her property, can access their homes. To the west of her

      property, there is a farm, which was maintained as pasture until about ten years

      ago. Novak’s property is lower than the farm, and ground water has always

      flowed from the farm, across the private road, into Novak’s backyard, where it

      then drains into a ditch. In 2009, the owner of the farm passed away, and his

      heirs began leasing the land to a farmer, who rotates between corn and

      soybeans.


[3]   After the farm became active, Novak noticed that her backyard and low-lying

      areas in the northern part of her property began eroding. In June 2017, Novak

      decided to repair her property. She had fill dirt delivered and began regrading

      and filling the northern part of her property, including along the private road.



      Court of Appeals of Indiana | Memorandum Decision 18A-MI-3134 | September 9, 2019   Page 3 of 11
[4]   On June 23, Michael Novotney, Porter County’s engineer, investigated a

      complaint that Novak was engaged in land-disturbing activities on her property.

      Novotney visited Novak’s property and saw that between 20,000-25,000 square

      feet of soil had been stockpiled. Novotney reported what he had seen to the

      director of Porter County’s Department of Development and Storm Water

      Management, who decided to issue a stop-work order. On June 26, Novak

      received the stop-work order. On July 5, Novotney did a follow-up visit and

      spoke with Novak, explaining that a permit was required for land-disturbing

      activities. She responded that she “didn’t intend to do any harm” and that she

      was “going to grade everything out and fill.” Tr. p. 22. Novotney saw that

      since his first visit, additional material had been brought in and stockpiled on

      Novak’s property, including “stone and some broken concrete.” Id. at 23.

      Novotney also saw that there were stockpiles placed along the private road,

      creating a permanent berm, which was “acting like a dam and preventing water

      from moving along its natural drainage course.” Id. at 24. As a result, there

      was “standing water on th[e] private road.” Id.


[5]   In October 2017, Novotney again visited Novak’s property and observed that

      there was more material being brought on site, which again included soil “as

      well as rock and what appeared to be broken concrete.” Id. at 26. Later that

      month, the BZA filed a complaint for injunctive relief, alleging that Novak was

      engaging in land-disturbing activities without a permit, in violation of the Porter

      County Unified Development Ordinance Section 7.15 (the “ordinance”). That

      section provides, in relevant part:


      Court of Appeals of Indiana | Memorandum Decision 18A-MI-3134 | September 9, 2019   Page 4 of 11
        B. Applicability:


                 1. Land-disturbing Activity: Section EC: Erosion Control
                 Standards shall apply to all land-disturbing activities within
                 the unincorporated area of Porter County, Indiana.


                 2. Exceptions:


                         a. Minor Projects: Section EC: Erosion Control
                         Standards shall not apply to minor projects where
                         land-disturbing activities involve less than 10,000
                         square feet . . . [;]


                         b. Section EC: Erosion Control Standards shall not
                         apply to existing nursery, mineral extraction, or
                         agricultural operations conducted as a permitted
                         primary or accessory use;


                         c. Emergency Activity: Section EC: Erosion Control
                         Standards shall not apply to any emergency activity
                         that is immediately necessary for the protection of
                         life, property or natural resources.


        C. Erosion Control Permit Required: Before commencing any
        land-disturbing activity to which § EC: Erosion Control Standards
        applies, the developer of the site shall be required to file an
        application and obtain an Erosion Control Permit[.]


The BZA also alleged that Novak’s activities were having a significant negative

impact on the storm-water management of the area and creating a nuisance.

The BZA asked that the trial court enter a permanent injunction, enjoining

Novak from further violations of the ordinance. See Appellant’s App. Vol. II p.

Court of Appeals of Indiana | Memorandum Decision 18A-MI-3134 | September 9, 2019   Page 5 of 11
      16. In November, Novak filed a counterclaim against the BZA, alleging that

      (1) she engaged in land-disturbing activities to conduct existing agricultural

      operations, that is, housing and rearing horses and maintaining pasture land for

      her horses and (2) that she engaged in land-disturbing activities as an

      emergency activity to protect the lives of people and animals who were

      endangered by the loss of the private road, to stop her fencing from washing

      away, and to protect the pasture land used by her horses, and that therefore the

      ordinance does not apply. See id. at 37. In December, ten of Novak’s northern

      neighbors filed a motion to intervene in the suit, alleging that Novak’s land-

      disturbing activities interfered with their right to use the private road. The trial

      court allowed the neighbors to intervene.


[6]   In January 2018, Novotney visited Novak’s property and saw that additional

      grading had been done and that there was standing water on the private road,

      which in some places was ten inches deep. In June, Novotney visited Novak’s

      property once again and saw evidence of additional grading activity, that grass

      was growing on the berm that Novak had created along the private road, and

      that “broken concrete, asphalt, [and] stone” was being used as fill. Tr. p. 31.


[7]   Over the course of two days in October 2018, the parties presented evidence for

      and against an injunction. Novotney testified that “any land-disturbing

      activities that involve ten thousand square feet or more . . . , which include the

      stockpiling of materials, embankment, filling, grading, excavation, require a

      permit.” Id. at 51. Regarding Novak’s claim that she was engaged in an

      agricultural operation by maintaining pasture land for her horses, Novotney

      Court of Appeals of Indiana | Memorandum Decision 18A-MI-3134 | September 9, 2019   Page 6 of 11
      testified that her “trucking in of soil [and] embankment fill” was not “directly

      related to those operations.” Id. at 58-59.


[8]   Novak further testified that the northern part of her property is shaped like a

      “bowl” and is lower than the farm to the west. Id. at 88. Regarding the

      emergency exception, Novak stated that after the farm changed from pasture to

      an active soybean and corn rotation, “it took a long time to really notice” that

      her property was eroding. Id. at 92. Novak admitted that the flooding she

      began to experience in her backyard was “[n]ot exactly immediate” and that

      “every year a little of it moved.” Id. at 91, 97. During the hearing, Novak also

      invoked the nursery-operation exception, saying that she participated in a

      conservation program through the United States Department of Agriculture

      (USDA) in which she planted 7,500 trees “so that the hills would not erode.”

      Id. at 116. However, she acknowledged that the fill she had brought in “is not

      on [that] area,” i.e., the area where she planted trees as part of the conservation

      program. Id. 123. Finally, Novak testified that she was in “farm mode” and

      “thought [she] had the right to bring [fill] in to fix what was wrong.” Id. at 112,

      114. George Novak, Novak’s son, testified that he lives with his mother and

      helps her keep three horses, several chickens, and six to seven goats on her

      property. However, he admitted that Novak’s animals “don’t go back” to the

      northern part of her property and that he gets their hay from another part of

      Novak’s property. Id. at 130. George also stated that his mother took her

      property “out of the [USDA] conservation program this year.” Id. at 135.

      George contended that “[t]he ordinance applies to everything but agricultural

      Court of Appeals of Indiana | Memorandum Decision 18A-MI-3134 | September 9, 2019   Page 7 of 11
       property and that seems to be what we are.” Id. at 134. At the end of the

       hearing, the trial court rejected Novak’s exception arguments and found that

       she “should have applied for a permit for land-disturbing activity as required by

       the ordinance.” Id. at 154. Following the hearing, the trial court issued an

       injunction, enjoining Novak from transporting fill onto her property and

       ordering her to remove any fill that was placed along the private road. See

       Appellant’s App. Vol. II p. 13.


[9]    Novak now appeals.



                                  Discussion and Decision
[10]   Novak contends that the trial court erred by issuing an injunction on the ground

       that she violated the ordinance by engaging in land-disturbing activities without

       a permit. 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 Cty., 752 N.E.2d

       99, 104 (Ind. Ct. App. 2001), trans. denied. A party seeking an injunction for a

       zoning violation must prove: (1) the existence of a valid ordinance and (2) a

       violation of that ordinance. Id.


[11]   Here, the trial court issued the injunction after finding that Novak’s land-

       disturbing activities violated the permit requirement of Porter County Unified

       Development Ordinance Section 7.15. Novak claims that she is exempt from

       the permit requirement for three reasons: (1) she is engaged in an agricultural


       Court of Appeals of Indiana | Memorandum Decision 18A-MI-3134 | September 9, 2019   Page 8 of 11
       operation by keeping horses, chickens, and goats; (2) she is engaged in a

       nursery operation; and (3) her land-disturbing activities were in response to an

       emergency.1 The trial court rejected all three exceptions.


[12]   First, Novak argues that she is engaged in “agricultural operations” by keeping

       horses, chickens, and goats and that therefore the permit requirement does not

       apply. The ordinance provides that the permit requirement “shall not apply to

       existing . . . agricultural operations.” Porter Cty. Unified Dev. Ordinance §

       7.15(B)(2)(b). However, there is no evidence that Novak regraded and filled the

       northern part of her property as part of her animal-keeping efforts. In fact,

       George testified that Novak’s animals “don’t go back” to the northern part of

       her property where the regrading and filling was being done. The trial court did

       not err in finding that Novak did not meet the agricultural-operation exception.

       Second, Novak argues that she operated a nursery and therefore meets the

       nursery-operation exception. In support of her argument, she stated that she

       planted 7,500 trees on her property as part of a USDA conservation program.

       The ordinance provides that the permit requirement “shall not apply to existing

       nursery . . . operations.” Porter Cty. Unified Dev. Ordinance § 7.15(B)(2)(b).

       However, there is no evidence that maintaining those trees was the reason that

       she regraded and filled the northern part of her property. Indeed, Novak

       testified that the fill was not placed in the same area where those trees are



       1
        Novak also argues that the trial court erred by finding her land-disturbing activities created a nuisance.
       Because we affirm the injunction based on the trial court’s ordinance-violation ruling, we do not address its
       nuisance ruling.

       Court of Appeals of Indiana | Memorandum Decision 18A-MI-3134 | September 9, 2019                  Page 9 of 11
       planted. See Tr. p. 123. Because there is no evidence that Novak’s land-

       disturbing activities were directly related to a nursey operation, the trial court

       correctly found that she is not exempt from the permit requirement of the

       ordinance.


[13]   Finally, Novak argues that an emergency was created when the farm across the

       road switched from pasture to an active soybean and corn rotation and that

       therefore the permit requirement does not apply. The ordinance provides that

       the permit requirement “shall not apply to any emergency activity that is

       immediately necessary for the protection of life, property or natural resources.”

       Porter Cty. Unified Dev. Ordinance § 7.15(B)(2)(c). The BZA asserts that this

       section “is intended to apply to circumstances where obtaining a permit is not

       feasible because of the ‘immediate’ necessity of protecting life, property or

       natural resources.” Appellees’ Br. p. 21 (emphasis added). Novak does not

       support her argument with any evidence that immediate action was necessary

       to protect life, property, or natural resources. For example, there is no evidence

       that one day she noticed that her backyard was collapsing and that she had to

       take immediate action to save the rest of her land. In fact, Novak admitted that

       “it took a long time to really notice” that her backyard was eroding, that “every

       year a little of it moved,” and that the flooding in her backyard was “[n]ot

       exactly immediate.” Tr. pp. 91-92, 97. Also, the fact that the farm to the west

       was switched from pasture to an active soybean and corn rotation in 2009, but

       Novak did not decide that her property needed repair until 2017, is consistent

       with the lack of evidence that this was an emergency. The lack of evidence


       Court of Appeals of Indiana | Memorandum Decision 18A-MI-3134 | September 9, 2019   Page 10 of 11
       showing any immediacy supports the trial court’s finding that the emergency

       exception does not apply to Novak and therefore she was required to obtain a

       permit.


[14]   Because Novak is not exempt from the permit requirement of the ordinance, the

       trial court did not abuse its discretion by issuing the injunction.


[15]   Affirmed.


       Kirsch, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-MI-3134 | September 9, 2019   Page 11 of 11
