Blackford v. Boone Cnty. Area Plan Comm'n

43 N.E.3d 655

Robert BLACKFORD, Appellant–Defendant

v.BOONE COUNTY AREA PLAN COMMISSION and Boone County Drainage Board, Appellees–Plaintiffs.

No. 06A01–1410–MI–437.

Court of Appeals of Indiana.

Sept. 11, 2015.

Michael J. Andreoli, Zionsville, IN, Attorney for Appellant.

Robert Clutter, Sergey Grechukhin, Kirtley, Taylor, Sims, Chadd & Minnette, P.C., Lebanon, IN, Attorneys for Appellees.

PYLE, Judge.

Statement of the Case

[1] Appellant–Defendant, Robert Blackford (“Blackford”), who is a former prosecutor and represented himself pro se, appeals the trial court's denial of his oral request for a continuance made on the day of trial. The trial court denied Blackford's request, held the bench trial, and entered judgment in favor of Appellees–Plaintiffs, Boone County Area Plan Commission (“the Plan Commission”) and Boone County Drainage Board (“the Drainage Board”) (collectively, “Boone County”). Blackford argues that the trial court abused its discretion by denying his continuance request. Given Blackford's failure to show good cause or prejudice, we conclude that the trial court did not abuse its discretion.

[2] We affirm.

Issue

Whether the trial court abused its discretion by denying Blackford's oral request for a continuance made on the day of trial.

Facts

[3] On May 1, 2014, the Plan Commission filed a complaint against Blackford and his estranged wife, Susan Blackford (“Susan”).¹ In its complaint, the Plan Commission alleged, in part, that:

4. Defendants are the owners of real estate located in Boone County, County Parcel Number 008–00210–01 and an address of 3401 East 750 South (est.), Boone County, Indiana (“the Property”). The Property is located within Boone County but outside an incorporated town or city.

5. The unincorporated areas of Boone County are governed by and subject to the Zoning Ordinance of Boone County (“the Zoning Ordinance”)....

6. The Property is designated as General Agricultural (“AG”), as that term is defined in the Zoning Ordinance.

7. The Zoning Ordinance provides that “Open Material Storage” is permitted only on real estate with a zoning designation[ ] of I–2 (General Industry), or by Special Exception on real estate with a zoning designation of I–1 (light Industry). Open Material Storage use is not permitted in the AG designated areas.

8. A “Construction/Demolition Site,” as that term is defined in the Zoning Ordinance, is permitted only by Special Exception by the Boone County Board of Zoning Appeals (“BZA”) in the areas designated with an I–1 zoning, I–2 zoning, or AG zoning. Defendants did not apply for a special exception with the BZA.

9. I.C. [§ ] 36–7–4–1014 provides that Plaintiff may bring an action in a court of competent jurisdiction to enforce the Zoning Ordinance.

10. On or about December 19, 2013, Defendants' Property was inspected and found to contain a significant amount of dirt, concrete, debris, and an unpermitted construction trailer. It was determined that the accumulation of dirt, concrete, and debris has negatively affected drainage, and presented a high potential for off-site erosion and sedimentation in violation of the Boone County Drainage Ordinance. Defendants did not obtain a permit for the temporary construction trailer or a Drainage Permit in violation of the Zoning Ordinance.

11. On or about March 17, 2014[,] a Notice to Stop Work Order (“Order”) was placed on the Property. Defendants did not comply with the Notice.

12. On or about April 29, 2014, Defendants' Property was inspected and found to contain piles of dirt, concrete, rebar, construction equipment, and an unpermitted construction trailer, and a second Order was posted on the Property.

13. Defendants, or their agents, have intentionally removed and destroyed two (2) Stop Work Orders posted on the Property by Plaintiff, and continue to conduct activities at the site in contravention of those Orders and the Zoning Ordinance.

14. Defendants have been notified of the non-conforming uses of the Property by letters sent by U.S. Mail and Certified Mail, and have refused or failed to remedy the non-conforming uses of the Property.

15. Defendants' uses of the Property ... are in violation of the Zoning Ordinance, Drainage Ordinance, and is a common nuisance.

(App. 21–23) (emphases added). The Plan Commission sought a permanent injunction to “permanently enjoin Defendants from utilizing the Property as a construction/demolition site or an open material storage for storing dirt, concrete, rebar, debris, industrial or construction waste and other materials.” (App. 24). Additionally, the Plan Commission sought, subject to provisions of the Zoning Ordinance, “civil penalties of not more than Three Hundred Dollars ($300.00) per day” as well as attorney fees and costs. (App. 24).

[4] On May 22, 2014, Blackford, a former prosecutor, filed a pro se answer to the complaint. In his answer, Blackford denied that he was using the Property for Open Material Storage or as a Construction/Demolition Site. In regard to the allegations contained in paragraph 10 of the Plan Commission's complaint, Blackford answered, in part, as follows:

OH MY GOD!!!! Rachel Cardis [the Plan Commission's Executive Director] found a significant amount of dirt on my farm! I admit it. There is a large amount of dirt on my property. I find no authority whatsoever enabling any Boone County official to regulate dirt on my farm, either the bringing in of the dirt, or the moving of dirt around on the property itself ... After studying the zoning ordinance, I believe my impression is correct—there are no prohibitions to what I am doing ... [T]he Complaint turns Bill Clintonish: “Mistakes were made”!! Mistakes don't make themselves, and the phrase “It was determined” in paragraph 10 suffers the same ambiguity: Who made the determination that drainage has been negatively affected? What kind of qualifications does that person possess? Against what standard was the present condition compared in order to make such a determination? This allegation is void for vagueness. I had the property examined and surveyed by Hause Surveying and Engineering, and the surveyors and engineers determined that, in fact, there has been no impact whatsoever to the drainage at the property. All of the neighboring properties drained onto my farm. All the neighboring properties continue to drain onto my farm. There is no drainage from my farm to any neighboring property. I have no intention of altering that fact. Neither is there any off site erosion. I do not believe I need a drainage permit ....

(Appellee's App. 5–7) (emphases added). Blackford also asserted that any Stop Work Order was “void for lack of authority” because his activity on his property was “simply not prohibited by the zoning ordinance.” (Appellee's App. 8). He also acknowledged that he had received correspondence from the Plan Commission but admitted that he had “ignored” it. (Appellee's App. 9). Blackford did not raise any specific affirmative defenses in his answer.

[5] Along with Blackford's answer, he also filed a counterclaim, alleging that the Plan Commission had committed perjury in its complaint. Blackford alleged, in part, that:

Paragraph # 10 [of the Plan Commission's complaint] is simply untrue on its face. It is unlikely anyone with a level of intelligence above that of [a] moron could conclude my activities on my property have affected drainage. I have had my property surveyed by Hause Surveying and Engineering. They report I am having no effect on drainage.

(Appellee's App. 11). As part of his counterclaim, Blackford also asserted, “I am a former prosecutor.” (Appellee's App. 12).

[6] On May 30, 2014, the trial court held a pretrial conference, during which it set a bench trial for July 30, 2014. During that hearing, the trial court asked Blackford if he was going to hire counsel, and he indicated that he was not. That same day, Blackford filed a motion to dismiss, and the Plan Commission filed a response in opposition to Blackford's motion shortly thereafter.² On June 16, 2014, the trial court denied Blackford's motion to dismiss.

[7] On July 3, 2014, the Plan Commission filed a motion to amend its complaint, in which it requested “to include the [Drainage] Board as another Plaintiff.” (App. 26). In its motion, the Plan Commission stated that the Drainage Board was “an interested and an indispensable party” because the “original Complaint allege[d] violations of the Stormwater Management Ordinance of Boone County[.]” (App. 26). The Plan Commission stated that “the Amended Complaint ha[d] no substantive changes[,]” and it attached a copy of the amended complaint to its motion. (App. 26).

[8] In its proposed amended complaint, the Plan Commission alleged that the Drainage Board was “charged with exercising the enforcement of drainage and stormwater management regulations” and could “bring civil actions in its own name to enforce any provisions of the chapter” of the ordinance. (App. 28). In regard to the violation of the drainage ordinance, the Plan Commission also alleged that

stormwater drainage improvements related to development of lands, and erosion and sediment control systems installed during new construction and grading of lots and other parcels of land located with[in] Bo[o]ne County are regulated by and subject to the Stormwater Management Ordinance of Boone County (the “Drainage Ordinance”) as adopted by the Commissioners of Boone County on April 21, 1997, and most recently amended on December 1, 2008.

(App. 29). As in its complaint, the Plan Commission alleged in the amended complaint that “Defendants' uses of the Property ... [were] in violation of the Zoning Ordinance, Drainage Ordinance, and [were] a common nuisance.” (App. 31). The Plan Commission again sought a permanent injunction to “permanently enjoin Defendants from utilizing the Property as a construction/demolition site or an open material storage for storing dirt, concrete, rebar, debris, industrial or construction waste and other materials.” (App....