IN Appeals Court Finds County Showed Reasonable Likelihood of Success on Merits on Claim that Landowner’s Use of His Property Constituted a Trucking Business Use and Violated a Zoning Ordinance

This post was authored by Matthew Loescher, Esq.

Plaintiffs Thind and Manpreet owned land on North Shaffer Road in Muncie, Delaware County, Indiana. On July 13, 2022, Delaware County, through its Administrative Zoning Officer, Tom Fouch, filed a Complaint for Preliminary and Permanent Injunction alleging that the County had adopted the Delaware County Comprehensive Zoning Ordinance, Thind’s property was located within an F Farming Zone, Thind was “engaging in a trucking business use, as well as the storage of trucking business vehicles,” on the property, and a trucking business use was not permitted within an F Farming Zone without a variance of use issued by the Delaware Muncie Metropolitan Board of Zoning Appeals (“BZA”).

It was uncontested that Thind’s property was located within an F Farming Zone, and that the applicable Zoning Ordinance “identifies the F Farming Zone and its uses as being those of residential, farming, and agricultural uses.” The parties also did not disagree that when Manpreet previously applied for a variance to use the property in his trucking business, the BZA denied the petition on June 25, 2020, and Manpreet did not appeal the BZA’s decision. The court found that Fouch subsequently observed multiple trucks on the property and Manpreet admitted that he continued to have multiple semi-tractors and semi-trailers on the property and that he was building, repairing, and customizing semi-tractors on the property. The court heard extensive evidence regarding the presence of semi-tractors and semi-trailers on the property on various occasions and Manpreet’s testimony regarding his and Thind’s trucking businesses and the activities on and use of the property.

The court noted that while a permanent injunction is issued upon a final determination, a preliminary injunction could be issued while an action is pending, and such an injunction would be issued where irreparable harm would be caused pending resolution of the substantive action. Here, the court issued a preliminary injunction and not a final determination. As the County did not present evidence of the fines or penalties it wished to have levied against Thind, the court’s imposition of fines and costs was premature.

Thind v Delaware County, IN., 207 N.E. 3d 434 (IN App. 3/20/2023)