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COA: Business is a nuisance to homeowners

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Despite modifications to a mycelium-drying business located adjacent to a farmhouse, the business is still a nuisance that deprives the homeowners from the free use and enjoyment of their property, ruled the Indiana Court of Appeals.

The appellate court reversed the Wabash Circuit Court's decision, which found that because Ted Parker had made modifications to his business, homeowners Randall Bonewitz and Russell Dellinger weren't entitled to a permanent injunction against the business. Bonewitz and Dellinger purchased the farmhouse from Parker in 1997; after the sale, Parker still owned the adjacent land and used it for farming hay. In 2003, he started a business that dries wet mycelium - a byproduct of the manufacture of food-grade citric acid - to sell for use in animal feed. The furnace is about 150 feet from the home and Parker received the proper permits to rezone his land from agricultural use to business/commercial use.

In 2007, the homeowners filed suit alleging the business is a nuisance because of the foul smells omitted, dust in the air, and constant trucking in of sawdust, which fuels the dryer for the mycelium. They sought a permanent injunction or damages. The trial court declined to enter a total preliminary injunction or damages, but ordered Parker be permanently enjoined from unloading sawdust outside the pole building.

In Bonewitz and Dellinger v. Parker, No. 85A04-0901-CV-16, the Court of Appeals disagreed with the trial court's decision that the effect on Bonewitz and Dellinger's home has been "greatly reduced" by Parker's efforts to mitigate truck noise, dust, and vibrations from his business. The undisputed evidence shows they continue to live with a stench that permeates the house, they can't use their yard, or open their windows, wrote Judge Edward Najam.

"Those infringements are not occasional or incidental, and they are more than an annoyance or inconvenience. While the nuisance may have been partially ameliorated, it has not been abated," he wrote.

Parker's argument that the pair bought the home knowing they were in an agriculturally zoned area and they can't complain about the discomfort based on agricultural uses failed because Parker's company isn't agricultural; it's a business that required rezoning. The issue is the magnitude of the business and Parker even admitted only 10 percent of his production is for his own use, wrote the judge.

Instead of ordering permanent injunctive relief, which would probably destroy Parker's business, the Court of Appeals remanded to the trial court to determine if the homeowners can be made whole with a monetary judgment. If so, then it should consider the evidence of their damages, including damages for discomfort and annoyance, when coming up with an amount.

If the trial court determines Bonewitz and Dellinger can't be made whole with a money judgment, then the court shall issue the total, permanent injunction against Parker's business.

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  1. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  2. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  3. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  4. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  5. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

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