Posted by: Patricia Salkin | July 9, 2021

IN Appeals Court Affirms Order to Fill Pond Constructed in Violation of County Ordinance

This post was authored by Matthew Loescher, Esq.

Appellants Rebecca Minser and Tina Zion jointly owned realty in DeKalb County, primarily located in what is known as the AC6 zone – part of the Airport Compatibility Overlay District (“ACO”) – under the DeKalb County Unified Development Ordinance (“UDO”). In 2018, Appellants’ contractor dug a hole on their property. Appellants’ alleged intent was to use the displaced dirt to raise the level of their driveway, but the resulting hole filled with water and became a man-made body of water. After the pond had already been constructed, Appellants applied for, and were denied, a development standards variance to retain the pond. In this appeal, they contend the trial court erred when it granted summary judgment in favor of the Commission on its complaint, finding that Appellants constructed a pond in violation of the DeKalb County UDO and ordering that Appellants fill it.

Appellants first contended that a “pond,” which was what the trial court found Appellants’ feature to be, was not the same thing as a retention pond, recreational pond, or detention pond, and was therefore not regulated by the UDO. The court found this interpretation of the UDO, as well as the implication that the Commission sought to regulate only three specific types of ponds near the airport, but not other types of ponds, implausible. As the trial court found the man-made body of water at issue to be a “pond”, it was therefore subject to the requirements of the UDO that attached to any “recreational pond.”

Appellants next claimed that the trial court’s plain reading of the UDO placed the ordinance in conflict with Indiana Code Section 36-7-4-1103, which provides that “this chapter does not authorize an ordinance or action of a plan commission that would prevent, outside of urban areas, the complete use and alienation of any mineral resources or forests by the owner or alienee of them.”  Here, however, Appellants failed to demonstrate that they were attempting to extract or alienate minerals from the dirt and clay; instead, by their own admission, Appellants were merely trying to move it from one location to another.

As a final matter, the court noted that the only statutory authority cited by the Commission or the trial court for the award of attorney fees is UDO section 10.17(C)(4). UDO section 10.17(C)(4) gave the trial court the authority to impose a fine on the offending party, which could be proportional to legal fees that may be associated with the action. The court held that this section did not mean that a trial court could separately assess attorney’s fees as they were ordinarily understood. Accordingly, the court held that the trial court misinterpreted the ordinance as conferring authority to award attorney’s fee.

Minser v DeKalb County Planning Commission, 2021 WL 1657574 (IN App. 4/28/2021)

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