Posted by: Patricia Salkin | December 6, 2015

IN Appeals Court Finds General Use Provision of County Zoning Ordinance Applicable Regardless of Whether the Property Qualified to be Treated as Agricultural Nonconforming Use

In 2006, the Appellees Alan and Kimberly Pahl purchased a 10.08 acre parcel of land located in Lowell, Indiana. The Pahls constructed a house on the property over the course of eight months, and, while construction was ongoing, farming activity on the Property ceased. In May 2008, the Pahls brought alpacas onto the Property, which already included chickens, ducks, rabbits, riding horses, mini horses, and goats. In 2009, the Pahls received a letter from the Plan Commission notifying them that they were in violation of the Unincorporated Lake County Zoning and Planning Ordinance because they were keeping alpacas on the Property. After the receipt this letter, the Pahls filed two petitions for a variance with the Lake County Board of Zoning Appeals: one to operate as a hobby farm and the other to build an accessory building. The Pahls withdrew their petitions, however when they discovered that their Property might qualify as an agricultural nonconforming use under Ind.Code § 36–7–4–616. Alan then applied to the Plan Commission for a permit to build a barn on the Property, but Ned Kovachevich, Executive Director of the Lake County Planning and Building Department, informed him that under the Zoning Ordinance the proposed barn was too large based on the lot’s size and residential zoning classification.

Appellants County of Lake and the Lake County Plan Commission filed a complaint for injunctive relief against the Pahls alleging that their use of the Property constituted agricultural use, that the Property was located in a residential subdivision, and that the Property did not qualify as a hobby farm, in violation of the Zoning Ordinance. In this case, the Appellants appealed the trial court’s finding in favor of the Pahls and raised two issues: whether the trial court erred by denying the Appellants’ request for an injunction, or abused its discretion by denying the Appellants’ motion to correct error. At the outset. the court noted that even assuming that the property here qualified as an agricultural use under subparagraph (b)(2) of the statute, subsection (f) provided that “requirements to which conforming agricultural use land is subject under the … zoning ordinance” still apply. Specifically, Section 2.7(G) of the Zoning Ordinance, applicable to the property under subsection (f), states that “keeping, raising, or breeding of farm animals, including horses and ponies, or poultry shall not be permitted in any zone, except on farms of twenty acres or more, or on hobby farms.” Hobby farms were not permitted in subdivisions unless “80% of the platted lots are five (5) acres or more in size” and the four other lots in the subdivision, of which the Property is a part, are less than five acres. Thus, the record indicated that the Pahls’ lot would not have qualified as a hobby farm under the Zoning Ordinance.

The court likewise found that the Pahl’s accessory structure, including fencing, and business activities were all prohibited under this statute. Accordingly, the court held that by failing to apply subsection (f) and, by extension, the relevant provisions of the Zoning Ordinance to the Appellees’ use of the land, the trial court erred in denying the Appellants’ request for an injunction and abused its discretion in denying the Appellants’ motion to correct error. As such, the trial court’s holding was reversed and remanded.

County of Lake v Pahl, 28 NE3d 1092 (IN App 2015)

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