Posted by: Patricia Salkin | October 26, 2019

IN Appeals Court Holds Maintenance of Poultry Flock on Residential Property was a Zoning Violation

This post was authored by Matthew Loeser, Esq.

In 2013, Barry Atwell and his wife, Sherri, began to raise a flock of poultry, comprised of chickens, turkeys, and roosters on the premises. In 2016, the City revised its ordinances to permit landowners to raise no more than twelve chickens and one rooster in D-5 zoning areas. The 2016 revision did not lift the prior prohibition on raising and keeping turkeys in D-5 zoning areas. Since the 2016 zoning revision, Atwell maintained multiple roosters and turkeys on the premises, as well as more than twelve chickens. At its largest, Atwell’s flock exceeded fifty-five birds. In 2017, the City issued a notice of violation to Atwell and, following an inspection, the City determined that Atwell repeatedly failed to remedy the alleged violation. As such, in 2018, the City filed a complaint alleging that Atwell violated Section 743-306(V) of the Revised Code by conducting activity not permitted in a D-5 zoning area. In this case, Atwell appealed the trial court’s determination that he committed a zoning violation, as well its entry of an injunction and imposition of a fine against him and in favor of the City of Indianapolis.

The record reflected that prior to 2015, the City prohibited landowners from raising and keeping poultry in D-5 zoning areas as provided under Revised Code Section 743-207 (2010). Thus, in 2013, when the Atwells moved into the subject property, Section 731-207 of the Revised Code did not include the raising and keeping of poultry as being within the stated purpose, permitted uses, or accessory uses of D-5 premises. Consequently, Atwell could not carry his burden of demonstrating a legally established non-conforming use because his use of the premises, before the 2016 zoning ordinance, was already unlawful.
Atwell next contended that maintaining a poultry flock was a lawful accessory use of the premises before the enactment of the 2016 zoning ordinance. However, Atwell failed to raise the “lawful accessory use” issue before the trial court; thus, the court was unable to address it in this case. Accordingly, the court affirmed, holding that the trial court did not abuse its discretion in imposing the permanent injunction.

Atwell v City of Indianapolis, 2019 WL 4940292 (IN App. unrep. 10/8/2019)

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