The Grant County Area Plan Commission provided enough evidence to support the trial court’s decision to order a home torn down because it is not up to code and is uninhabitable, the Indiana Court of Appeals ruled Wednesday.
Jack Enslen appealed the trial court order directing him to raze the home within 30 days of its Oct. 29, 2015, bench trial. Enslen had lived in the home for nearly 30 years, but began remodeling the home in 2001 following a divorce. Although he obtained permits in 2009 and 2012 for the work, he never had the funds to complete the work, leaving the gutted home with no power, plumbing, heat or siding. He did have some personal belongings at the property.
Enslen tried to get a new permit after he received notice to bring the structure into compliance, but the director of APC denied the request and told him to work under the 2012 permit. But no work was completed, so APC filed the complaint in April 2015. Enslen filed a counterclaim, alleging the notice was constitutionally defective and deficient because it didn’t specify which building codes he had violated.
At trial, Enslen testified that the home was structurally sound but had no plumbing, hard siding, or working utilities. He also said his financial situation was “kinda rough.” The trial court granted the APC’s request to have Enslen tear down the home within 30 days and pay court costs and a fine.
The Court of Appeals rejected Enslen’s arguments that the judgment is clearly erroneous because the APC presented no evidence that he violated a local zoning ordinance or Indiana Code 36-7-9-4, and that the notice was constitutionally defective. The judges found his reliance on City of New Haven v. Chem. Waste Mgmt. of Ind., LLC, 701 N.E.2d 913 (Ind. Ct. App. 1988), was misplaced, because that case dealt with injunctive enforcement of a stop work order.
“Moreover, we agree with the APC’s observation that the evidence presented at trial – most notably, Enslen’s own testimony – established that his problem with compliance was not that he did not understand what needed to be done but that he did not have the financial means to do it,” Judge Robert Altice wrote.
The judges also determined that the trial court properly determined under the statute that the property in question was vacant and unsafe.
The case is Jack A. Enslen v. Area Plan Commission of Grant County Indiana, 27A04-1512-OV-2109.