MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                   Sep 21 2018, 6:11 am
regarded as precedent or cited before any
                                                                            CLERK
court except for the purpose of establishing                            Indiana Supreme Court
                                                                           Court of Appeals
the defense of res judicata, collateral                                      and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANTS                                  ATTORNEY FOR APPELLEES
John J. Schwarz, II                                      PUTNAM COUNTY
Schwarz Law Office, PC                                   COMMISSIONERS
Hudson, Indiana                                          Trudy L. Selvia
                                                         Greencastle, Indiana
                                                         ATTORNEYS FOR APPELLEE
                                                         INTERVENOR
                                                         Hayleigh J. Neumann
                                                         Robert J. Nice
                                                         The Nice Law Firm, LLP
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

William E. Morrison and                                  September 21, 2018
Sonya Morrison,                                          Court of Appeals Case No.
Appellants-Respondents,                                  18A-PL-462
                                                         Appeal from the Putnam Superior
        v.                                               Court
                                                         The Honorable Raymond M.
Putnam County Commissioners,                             Kirtley, Senior Judge
Appellees-Petitioners,                                   Trial Court Cause No.
                                                         67D01-1402-PL-3
and
Donald Richards,


Court of Appeals of Indiana | Memorandum Decision 18A-PL-462 | September 21, 2018               Page 1 of 14
      Appellee-Intervenor




      Baker, Judge.


[1]   William and Sonya Morrison own a farm in Cloverdale that has accumulated a

      significant amount of junk and debris. The Putnam County Commissioners

      (the County) determined that the Morrisons were in violation of a zoning

      ordinance that prohibits agricultural property from being used as a junkyard.

      The trial court granted an injunction and ordered the Morrisons to dispose of

      the complained-of items. The Morrisons appeal, arguing that the evidence is

      insufficient and that the trial court made errors of law. Finding sufficient

      evidence and no other error, we affirm.




      Court of Appeals of Indiana | Memorandum Decision 18A-PL-462 | September 21, 2018   Page 2 of 14
                                                       Facts
[2]   The Morrisons own approximately thirty-five acres of land in Cloverdale; they

      have owned the land since 1983.1 Appealed Order p. 1. Donald Richards owns

      a neighboring parcel of land.


[3]   On February 7, 2014, the County filed a petition for a temporary restraining

      order (TRO). The trial court issued the TRO on February 10, 2014. Neither

      the petition nor the TRO are included in the record on appeal. We infer that

      the petition included a demand that the Morrisons remove certain things,

      including, for example, semi-trailers, flat-bed trailers, and debris, from their

      property and that the trial court indeed made such an order. The TRO also

      restrained the Morrisons from moving additional trailers and debris onto the

      property.


[4]   On March 17, 2015, the trial court ordered the Morrisons to make substantial

      progress towards moving the items off their property. Apparently, little

      progress was made, and on September 15, 2015, the trial court held a rule to

      show cause hearing. In July 2016, the trial court found that the Morrisons were

      not in compliance with the TRO and ordered them to comply.




      1
       There is some discrepancy in the record regarding the year in which the Morrisons purchased the property.
      For the purposes of this appeal, however, it is irrelevant whether the purchase took place in 1983, 1985, or
      1986.

      Court of Appeals of Indiana | Memorandum Decision 18A-PL-462 | September 21, 2018                Page 3 of 14
[5]   On November 21, 2016, Richards intervened in the case. Thereafter, the parties

      were referred to mediation, but were unable to reach a resolution. On February

      9, 2017, Richards filed a motion for a preliminary and permanent injunction

      and the County filed a motion for a preliminary injunction. The County’s

      motion indicated that the Morrisons’ property was zoned as A1-Agriculture

      Protection District, that the Morrisons were using the land as a junkyard, and

      that the use of the land in that fashion is contrary to the land use of the A1

      zone. Intervenor’s App. Vol. II p. 11.


[6]   On September 12, 2017, the trial court held an evidentiary hearing. On

      November 30, 2017, the trial court issued an order granting the requested

      preliminary and permanent injunctions. In pertinent part, it found and

      concluded as follows:


              24.      The Court finds that there are items on the property not
                       being used for agricultural purposes that are abandoned,
                       junked, inoperable or derelict vehicles, machinery, farm
                       machinery equipment or miscellaneous scrap or building
                       debris. Said items fall under the definition of junkyard per
                       the Putnam County Zoning Ordinance and [are] in
                       violation of said Ordinance.

              25.      Over one hundred photos were offered and admitted into
                       evidence. These photos, and sworn testimony
                       accompanying them show the following:

                       a.      Semi-trailers, including both flat bed and box
                               trailers, have been brought upon the Farm since
                               2013.




      Court of Appeals of Indiana | Memorandum Decision 18A-PL-462 | September 21, 2018   Page 4 of 14
                 b.      Additionally, significant amounts of construction
                         debris and scrap metal have been brought on to the
                         Farm since 2013.

                 c.      Additionally [sic] machinery, farm machinery,
                         multiple motorized vehicles and equipment,
                         including but not limited to cars, trucks, bulldozers,
                         and a backhoe [have been] brought on to the Farm
                         since 2013 and remain there left abandoned, junked
                         and inoperable condition and in a state of
                         deterioration.

        26.      The Court finds that the Respondents have made use of
                 the real property and maintained certain farm equipment
                 and property thereon that is within the meaning of farming
                 operation and which includes growing of field crops,
                 raising, handling and holding Emus and producing
                 compost for application onto the real property, which are
                 all permitted uses per the Ordinance in regard to A1
                 Zoning.

                                                 ***

        31.      The Court recognizes this has been an ongoing dispute
                 which has now gone on for several years. While the Court
                 has no direct interest in taking action simply to resolve
                 neighborly disagreements, it does recognize the benefit of
                 enforcing existing zoning laws so as to promote order and
                 predictability in land usage, which may in turn yield such
                 a benefit.

                                      Conclusions of Law

                                                 ***

        3.       The [Morrisons] are operating a junkyard on their real
                 estate . . . , in violation of the Putnam County Zoning
                 Ordinance.


Court of Appeals of Indiana | Memorandum Decision 18A-PL-462 | September 21, 2018   Page 5 of 14
                                                       ***

              6.       [The Morrisons] shall remove any semi-trailers and flatbed
                       trailers and their associated debris from the real
                       property . . . . as previously ordered on or about February
                       10, 2014 . . . . This shall be completed within 30 days of
                       this Order.

              7.       [The Morrisons] shall remove any additional tractors,
                       trailers, motor vehicles, backhoes, bulldozers, metal scrap,
                       and any other associated debris, brought on to the Farm
                       since 2013 . . . . This shall be completed within 90 days of
                       this Order.

                                                       ***

              13.      The [Morrisons] are permanently enjoined from bringing
                       any further machinery or material onto the Farm, except
                       that which is permitted under the Ordinance.


      Appealed Order p. 3-8. The Morrisons now appeal.


                                   Discussion and Decision
[7]   The Morrisons make multiple arguments, which we restate as follows: (1) there

      is insufficient evidence supporting the trial court’s judgment; and (2) the ruling

      is erroneous as a matter of law.


[8]   When reviewing a trial court’s ruling stemming from a bench trial, we will only

      set aside the judgment if it is clearly erroneous. E.g., WindGate Props., LLC v.

      Sanders, 93 N.E.3d 809, 813 (Ind. Ct. App. 2018). We first consider whether

      the evidence supports the trial court’s findings of fact and then consider whether

      the findings support the judgment. Id. We give due regard to the trial court’s


      Court of Appeals of Indiana | Memorandum Decision 18A-PL-462 | September 21, 2018   Page 6 of 14
       ability to assess the credibility of witnesses and defer substantially to its findings

       of fact. Id. We do not afford the same deference to the trial court’s conclusions

       of law. Id.


                                               I. Sufficiency
[9]    The Morrisons first argue that there is insufficient evidence supporting the trial

       court’s conclusion that they were impermissibly operating a junkyard. They

       also argue that the evidence supports a conclusion that their use of their

       property constitutes a prior nonconforming use that should be permitted.


[10]   It is undisputed that the Morrisons’ land is zoned as A1-Agriculture Protection

       District. The A1 zone has certain permitted uses, permitted accessory uses and

       structures, and development standards. A “junkyard” is a non-permitted use of

       land zoned as A1. The relevant ordinance defines “junkyard” as follows:


               A place, usually outdoors, where waste or discarded used
               property other than organic matter, including, but not limited to,
               automobiles, farm implements and trucks, is accumulated and is
               or may be salvaged for reuse or resale; this shall not include any
               industrial scrap metal yard or normal farming activities.


       Putnam County Code § 155.005, available at Appellants’ App. Vol. II p. 45.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-462 | September 21, 2018   Page 7 of 14
[11]   Richards testified at the evidentiary hearing and described, in great detail, the

       items covering the Morrisons’ property.2 Among other things, the land holds:


           • Many unused and inoperable semi-trailers and truck beds, some of which
             were off their wheels;
           • Metal debris;
           • Multiple inoperable vehicles without license plates;
           • Many piles of metal;
           • Propane tanks;
           • Tires;
           • Vehicle axles;
           • A trailer entirely full of trash;
           • Box trailers;
           • A backhoe, bulldozer, and Bobcat; and
           • A significant amount of debris and junk.

       Tr. Vol. II p. 164-67. The Morrisons admitted that they did not remove the

       semi-trailers and flatbeds that the trial court ordered to be removed in the

       February 2014 TRO. Id. at 83-84. They also admitted that they have since

       brought additional tractors and motor vehicles onto the property since February

       2014. Id. at 84-85. The director of the Putnam County Director of Planning

       and Zoning testified that the abandoned vehicles and scrap metal on the

       property would meet the ordinance’s definition of a junkyard.3 Id. at 51.




       2
         To the extent that the Morrisons appear to argue that the evidence offered by Richards cannot be used to
       support the trial court’s judgment because the County bore the burden of proving its case, we note that they
       apparently did not object to Richards’s intervention in the case and certainly did not appeal it. As he is now
       a full party to the case, his evidence may be considered alongside the County’s.
       3
         The Morrisons note that at another point in his testimony, the director testified that the junkyard definition
       would not apply because the items were not in their front yard. This amounts to a request that we reweigh
       the evidence, which we may not do. We must focus only on the evidence supporting the trial court’s

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-462 | September 21, 2018                   Page 8 of 14
[12]   We find that this evidence supports the trial court’s conclusion that the

       Morrisons were using their property as a junkyard. The evidence shows that

       the Morrisons’ land was a place outdoors where waste or discarded used

       property, including automobiles, farm implements, and trucks, was being

       accumulated and the property could have been salvaged for reuse or resale.

       Furthermore, the trial court took great care in its order to distinguish between

       items that were part of normal farming activities, which are not affected by the

       judgment, and items that did not qualify as such, which must be removed.

       Appealed Order p. 5-7.


[13]   The Morrisons insist, correctly, that there is no evidence in the record that they

       salvaged the junk for reuse or resale. But the definition does not require that; it

       merely requires that the items “may be salvaged for reuse or resale[.]” Putnam

       County Code § 155.005 (emphasis added). Whether or not they currently are or

       have been in the past, the many items described above could be salvaged for

       reuse or resale; therefore, this use of the property meets the definition of

       junkyard. See Tr. Vol. II p. 98-99 (Morrison testifying that all the items on his

       property could be reused because he would dispose of them properly if they

       became unusable).


[14]   The Morrisons also note that there is undisputed evidence in the record that

       their property was a farm, arguing that the same plot of land could not




       judgment. Moreover, we note that this witness’s testimony regarding the location of items in the front yard
       was prevaricating and inconclusive. Tr. Vol. II p. 50-51.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-462 | September 21, 2018                Page 9 of 14
       simultaneously be used as a farm and a junkyard. They are correct that there is

       evidence in the record showing that the property is a farm, and indeed, the trial

       court’s order explicitly acknowledged as much, carving out exceptions to its

       order for items on and uses of the land that were part of the farming operation.

       We cannot conclude, however, that the same plot of land could not be used

       both as a junkyard and as a farm. One plot of land may have multiple uses,

       especially where, as here, it covers thirty-five acres. Nothing in the ordinances

       or caselaw suggests that a property that is partially being used as a junkyard can

       only be designated as such. We agree with Richards that “a more accurate

       statement is that by simultaneously using his Property as both a farm and a

       junkyard, Morrison is in violation of the Ordinances.” Intervenor Br. p. 12

       (emphases original). Therefore, this argument is unavailing.


[15]   The Morrisons also argue that the trial court should have found that their

       property was protected via an established prior nonconforming use. A prior

       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. The general rule is that a nonconforming use may
               not be terminated by a new zoning enactment.


       Metro. Dev. Comm’n of Marion Cty. v. Pinnacle Media, LLC, 863 N.E.2d 422, 425

       (Ind. 2005).




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-462 | September 21, 2018   Page 10 of 14
[16]   Initially, we note that the Morrisons did not raise this argument to the trial

       court. As such, they have waived it. Waiver notwithstanding, the Morrisons

       did not offer evidence that the items on their property predated the relevant

       ordinances, which went into effect in 1992. Moreover, they admitted that they

       have added items to the property since the 2014 TRO, tr. vol. II p. 84-85, and

       Richards testified that some of the items on the property were recent additions,

       while others had been there ten to fifteen years—which would date back to

       2002 to 2007, long after the ordinances were enacted. Because the Morrisons

       offered no evidence such as proofs of purchase, sales disclosures, or receipts to

       prove that any of the items on the property predated the enactment of the

       ordinance, this argument is unavailing.4


                                    II. Inverse Condemnation
[17]   Next, the Morrisons argue that the trial court’s order amounts to an

       unconstitutional taking by inverse condemnation. Yet again, they did not make

       this argument to the trial court and have therefore waived it. See Tender Loving

       Care Mgmt., Inc. v. Sherls, 14 N.E.3d 67, 73 (Ind. Ct. App. 2014) (holding that

       “[c]onstitutional rights are not absolute and may be waived”).




       4
        The Morrisons argue that the fact that they received no notices of violation in the 1980s, 1990s, or 2000s,
       establishes that their use of the property was a prior nonconforming use. But this evidence in no way shows
       whether the complained-of items were actually on their property during the decades before the ordinance was
       enacted.

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-462 | September 21, 2018              Page 11 of 14
[18]   Waiver notwithstanding, it is well established that “not every restriction placed

       upon private property constitutes a taking, and our supreme court has drawn a

       distinction between ‘a parcel of property [that] is not zoned for its best and most

       profitable use and a situation where the present zoning restriction results in a

       deprivation of one’s property rights.’” Galbraith v. Planning Dep’t of City of

       Anderson, 627 N.E.2d 850, 852-53 (Ind. Ct. App. 1994) (quoting Young v. City of

       Franklin, 494 N.E.2d 316, 317-18 (Ind. 1986)). A taking occurs when all

       reasonable use of the property is prevented by the land use regulation. Id. at

       853. Therefore, a zoning regulation becomes confiscatory only when it denies

       the property owner all economically beneficial or productive use of the land.

       Id.


[19]   In this case, the Morrisons are not arguing that the ordinance itself, which

       prohibits an A1-zoned property from being used as a junkyard, is confiscatory.

       Nor do they claim that the ordinance denies them all economically beneficial or

       productive use of the land. As such, the restriction contained within the

       ordinance is not confiscatory, and the enforcement thereof does not amount to

       inverse condemnation.


[20]   What they appear to be arguing, instead, is that the trial court gave them so

       small a window to dispose of the property that they will have to sell the items at

       a financial loss. But they have had since 2014 to dispose of much of the debris—

       the thirty-day window imposed by the trial court for these items is eminently

       reasonable given their repeated refusals to abide by the TRO. And the trial

       court afforded them with ninety days to dispose of the items not covered by the

       Court of Appeals of Indiana | Memorandum Decision 18A-PL-462 | September 21, 2018   Page 12 of 14
       TRO, which we find to be a reasonable amount of time. We do not find that

       the trial court’s order amounts to an inverse condemnation.


                                      III. Right to Farm Act
[21]   Finally, the Morrisons argue that they are protected by the Indiana Right to

       Farm Act. Ind. Code § 32-30-6-9. Yet again, they failed to make this argument

       to the trial court and have therefore waived it for appeal.


[22]   Waiver notwithstanding, the Indiana Right to Farm Act contains restrictions on

       the circumstances under which agricultural operations may be subject to

       nuisance claims. I.C. § 32-30-6-9(d). The Morrisons argue that the County’s

       lawsuit amounts to a nuisance claim that should be governed by this statute.


[23]   Had the County chosen to do so, it could have pursued a claim under the

       ordinances for maintaining a common nuisance. Putnam County Code §

       155.999. It elected not to approach the situation in that way, however, and we

       see no basis on which to conclude that this zoning violation action is a nuisance

       claim in disguise. Therefore, we find that the Indiana Right to Farm Act does

       not apply.


[24]   In his brief, Richards asks that we order the Morrisons to pay attorney fees for

       maintaining a frivolous appeal and/or acting with bad faith. We decline to do

       so.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-462 | September 21, 2018   Page 13 of 14
[25]   The judgment of the trial court is affirmed.


       May, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PL-462 | September 21, 2018   Page 14 of 14
