COA: Landowners violated ordinance by building ‘pond,’ but attorney fees not supported in ordinance

Two homeowners who built a pond in an airport district without a permit violated a local ordinance, the Indiana Court of Appeals ruled Wednesday, affirming judgment in favor of the local plan commission. However, an award of nearly $8,000 in attorney fees for the commission must be vacated.

Appellants Rebecca Minser and Tina Zion owned about 10 acres of land in DeKalb County near the local airport. In 2018, they hired a contractor to dig a hole on their property and planned to use the displaced dirt to raise the level of their driveway. They had not obtained a permit prior to digging the hole, which was just under half-an-acre and was later filled with water.

The local zoning administrator learned about the project and notified Minser and Zion that if they were building a new structure or a pond, they would need to get a permit. They applied for a variance after the pond was constructed but were denied because their proximity to the airport meant they had certain land restrictions.

When Minser and Zion failed to fill in the pond as ordered, the DeKalb County Plan Commission filed suit for injunctive relief, fines, penalties and attorney fees. The commission moved for summary judgment, which the DeKalb Superior Court granted, also imposing a $1,000 fine plus $7,573.68 in attorney fees for the commission.

The Indiana Court of Appeals affirmed the grant of summary judgment to the commission in Rebecca Minser and Tina Zion v. DeKalb County Plan Commission, 20A-PL-2408.

Minser and Zion argued they hadn’t erected a pond on the property, but rather that “the depression on their land was the result of mining clay from their backyard to be utilized in the preservation of their driveway.” But in a Wednesday opinion, Judge Elizabeth Tavitas found no question on that issue: “This is clearly a pond.” 

“Appellants cannot reasonably assert that, by digging a large hole, which subsequently filled with water, they did something other than create a man-made body of water,” Tavitas wrote, noting its size of 0.43 acres was “greatly in excess” of the 400-square-feet limit of the DeKalb County Unified Development Ordinance.

“Appellants suggest that a ‘pond,’ which is what the trial court found Appellants’ feature to be, is not the same thing as a retention pond, recreational pond, or detention pond, and, therefore, is not regulated by the UDO. We find Appellants’ 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. What the trial court found here to be a ‘pond’ is a man-made body of water and, thus, is subject to the requirements of the UDO that attach to any ‘recreational pond,’” the judge wrote.

Even if Minser and Zion did not intend to construct a pond, “a pond is what they created,” the panel continued. It rejected the argument that the UDO’s use of the word “design” in the pond provision created a requirement of intent.

What’s more, the panel rejected the claim that the UDO was in conflict with Indiana Code § 36-7-4-1103, which deals with the extraction of minerals. The appellants were not trying to extract any “mineral,” the panel held, but rather were simply trying to move dirt and clay.

“Finally, Appellants point to a series of other properties featuring ponds in the (airport district), which were apparently approved by the Commission. Aside from the fact that this argument appears to concede that the pond in question is a pond, it is unclear what import these other instances possess,” Tavitas wrote for the panel. “… Our role is simply to determine whether, here, the designated evidence shows that there has been a violation of the UDO. We find that Appellants violated the UDO by constructing a pond without the required approval.”

However, the appellate panel vacated the award of attorney fees to the commission, finding the award was not supported by the UDO.