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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. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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