Posted by: Patricia Salkin | July 31, 2021

IN Appeals Court Concluded Appellants Constructed a Pond in Violation of Local Zoning Ordinance and Affirmed in Part

This post was authored by Olena Botshteyn, Esq.

Rebecca Minser and Tina Zion, appellants in this case, own a ten-acre property located in the Airport Compatibility Overlay District (“ACO”) in DeKalb County. Under the County Unified Development Ordinance (“UDO”), the goal of ACO district is to provide for safety and compatibility for the owners of land in the immediate vicinity of the airport.

In July 2018, appellants dug a hole in their property, with an intention, as they claimed, to displace dirt and raise the level of their driveway, without previously obtaining a permit. The zoning administrator then sent the appellants a notice, informing them that if they were building a pond, a permit would be required. After completing the construction of a pond, appellants applied for a development standards variance to retain it. The Board of Zoning Appeals (“BZA”) framed the issue at the hearing specifically as an application for a variance to retain a pond on the property. After appellants were denied the variance, they were instructed to fill the pond back in, and failed to comply. In June 2019, the Commission filed a complaint in the DeKalb Superior Court, requesting that appellants remove the pond and comply with the UDO. In December, 2020, the trial court granted summary judgment to the Commission, imposed a $1,000.00 fine on the appellants and ordered them to pay $7,573.68 in attorney’s fees. Appellants appealed.

On appeal, the court affirmed the decision of the trial court as related to the conclusion that the appellants’ construction constituted an unlawful pond. The UDO provides that constructing structures not expressly permitted is an actionable violation. It further provides that new retention and recreational ponds are expressly prohibited in the ACO zone. By digging a large hole appellants created a man-made body of water. They later applied for a variance for a “pond” and therefore, the court concluded, they can no longer claim they had not constructed a pond. The court thus found that Appellants violated the UDO by constructing a pond without the required approval.

The court further considered the issue of the attorney’s fees award and determined that the trial court erred in ordering appellants to pay the fees. The UDO provides that “a violator found liable for a violation shall be subject to a court-imposed fine,” however, it does not provide for payment of attorney’s fees as a remedy. The court thus concluded that the trial court had authority only to impose the fine, but not the payment of attorney’s fees, and vacated the order.

Minser v Dekalb County Plan Commission, 170 NE 3d 1093 (IN App. 4/28/2021)

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