A court ruling in favor of a Lawrence homeowner who was investigated after reports that he was building a deck and an above-ground pool without city permits was reversed Monday. The Indiana Court of Appeals found judgment in the property owner’s favor was clearly erroneous.
The case involves Everett Powell, whose building on his property prompted a complaint of zoning violations that were investigated by Jeff Vaughn in July 2018. Then a zoning and licensing inspector for the Department of Businesses and Neighborhood Services, Vaughn inspected the outside property and found construction that violated the Consolidated City of Indianapolis/Marion County Code. In addition to lack of permits, some of the construction appeared to be in the setback area of the property.
After Vaughn told Powell he had to stop work immediately, Powell asked to speak with Vaughn’s supervisor then asked Vaughn to leave, which he did. Vaughn said he mailed notices of violation to Powell, but Powell says he didn’t receive them.
The next month, a follow-up inspection revealed the construction had been partially removed but the commission cited Vaughn for three code violations — failure to obtain a permit for a deck more than 18 inches tall, outdoor storage of trash or debris, and building a detached structure within the rear yard setback.
The commission sued Powell in September 2018 based on the violations, but after a bench trial, Marion Superior Judge John Chavis II ruled in Powell’s favor. He found “Vaughn obtained evidence that supported the violation by entering Mr. Powell’s property without first obtaining his permission or an administrative search warrant,” citing Chapter 740 of the code.
“We agree with the Commission that the trial court misinterpreted the plain language of the Revised Code,” Judge Elizabeth Tavitas wrote for the panel in Metropolitan Development Commission v. Everett Powell, 20A-OV-871. Specifically, the code prohibits inspectors from entering structures without a warrant or consent, but not the premises or property when responding to code complaints.
“Nothing in the record suggests, however, that Vaughn ever attempted to enter a structure. Rather, his inspection took place outdoors, and Vaughn removed himself from the premises immediately upon being asked,” Tavitas wrote.
“The trial court’s finding that the events precipitating the citations began with an unlawful entry conflicts with the evidence offered. There was a complaint about the violations before Vaughn even arrived at Powell’s residence. Vaughn’s testimony included the fact that many of the photographs of the violations were taken from a public street, as the violations were plainly visible to Vaughn,” Tavitas continued.
“… The trial court erroneously concluded that Vaughn’s initial entry onto Powell’s premises was unauthorized. Accordingly, the trial court’s denial of the Commission’s request for a permanent injunction is clearly erroneous,” the appellate panel concluded, remanding with instructions to enter such an order.