Agenda - Planning Commission - 01/06/2011

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46 November 25, 2010 j Volume 4 j No. 22 Zoning Bulletin surrounding area. The shed were used by the Ratcliffs and four of their neighbors (at no charge) to store seasonal items they used at a nearby lake. In August 2008, the town cited the Ratcliffs for violating the town's zoning ordinance § 5.9 (the "Ordinance "). The Ordinance governed "accessory buildings." It provided that accessory buildings could only be constructed: (1) subsequent to the principal use being established and a building permit obtained for the principal building; or (2) prior to the principal building or use only if used as a storage facility during con- struction of the principal use. The Ratcliffs did not have a primary building or a permit to build one on the subject property when they placed the sheds there. The town's Plan Commission instructed the Ratcliffs to remove the sheds or face fines. The Ratcliffs appealed. They pointed to the zoning ordinance's defini- tion of "accessory building ": "[a] subordinate building or structure lo- cated on the same zoning lot as the principal building or use." The zon- ing ordinance defined "building" as a structure "securely affixed to the land " It defined "structure" as a three - dimensional object "with a fixed location and permanent improvements made with building materi- als." The Ratcliffs noted that their storage sheds: were not securely af- fixed to the ground; did not have a fixed location; and did not have per - manent improvements. As such, they contended that their storage sheds were neither "buildings" nor "structures" and therefore could not be "accessory buildings" prohibited by the Ordinance. The town's Board of Zoning Appeals (the "Board ") affirmed the Plan Commission's decision. The Ratcliffs then appealed to court. The trial court found in favor of the Ratcliffs. The Board appealed. On appeal, the Board argued that the Ratcliffs' sheds — placed on a landscaped gravel lot and supplied with electricity — constituted the placement of a "structure" with "a fixed location and permanent improvements." The Court's Decision: Judgment of trial court affirmed. The Court of Appeals of Indiana held that the sheds were not "struc- tures" —with "a fixed location and permanent improvements" —under the Ordinance and therefore were not "accessory buildings" prohibited by the Ordinance. In so holding, the court agreed with the Ratcliffs that the sheds had neither "a fixed location" nor "permanent improvements." The Board had argued that the sheds were in a fixed location because they were objects "in a particular spot." The court rejected that argu- ment, finding it "overbroad" as it would "apply to all personal prop- erty." Rather, the court found that the only reasonable interpretation of 10 - © 2010 Thomson Reuters