In 1999 the owners of a house on 10 acres in an agricultural district built a building with a kitchen and bathroom for use in connection with their organic farm operation. After the farm operation ended the owners allowed their son and his wife to live in the outbuilding while attending college. The director of the plan commission notified the owner that the change in use required a variance. The board of zoning appeals affirmed that the use violated the ordinance prohibition on “more than one principal building for residential purposes.” The owners indicated that they intended to seek a variance, but waited several months while the health department evaluated the septic system. The commission sought an injunction and fines. The owners informed the commission that the building was no longer used as a residence, but only as occasional housing for guests. The commission insisted that the owners either render the building uninhabitable or get a variance. Their variance application was denied. The trial court held that the use did not violate the ordinance and that no variance was required. The appeals court affirmed. The ordinance does not define “residential purposes,” but defines a dwelling to not include “any facility normally providing housing for a period of under 30 days,” therefore, the accessory building, which is permitted in the district, is not a dwelling. The owners were not barred by their failure to appeal the commission’s initial determination from arguing that a variance was not required.  

Hamilton County Plan Comm’n v. Nieten, 2007 WL 3358136 (Ind. App. 11/14/2007). 

The opinion can also be accessed at: http://www.in.gov/judiciary/opinions/pdf/11140701cld.pdf  

Special thanks to Lora Lucero, Esq., editor of Planning and Environmental Law for this abstract. Information about PEL is available at: http://www.planning.org/PEL/index.htm