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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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