Town of Michiana Shores, Appellant-Plaintiff, v. Eve K. Grobelny and Thomas Grobelny, Appellees-Defendants (2025)

MEMORANDUM DECISION

Case Summary

[1] The Town of Michiana Shores (the Town) appeals the trial court's judgment in favor of Eve K. Grobelny and Thomas Grobelny (collectively, the Grobelnys), which determined that the Grobelnys did not violate the Town Municipal Code (Municipal Code) when they constructed a set of stairs and a deck on their property without securing a building permit. The Town argues that the trial court's determination that there was no violation of the Municipal Code was erroneous because the Grobelnys’ “unpermitted structures endangered health and safety that created a nuisance.” Appellant's Brief at 22. Thus, the Town maintains that the Grobelnys are obligated to pay fines for Municipal Code violations, costs, and reasonable attorney's fees expended in enforcing the Municipal Code provisions and abating the nuisance.

[2] We reverse and remand for further proceedings consistent with this opinion.

Facts and Procedural History

[3] Eve is the titled owner of residential property in the Town that Thomas, her husband, also occupies. She also owns a vacant parcel across the street from the residence that provides access to a beach.

[4] In June 2021, the Grobelnys began constructing a set of stairs (the Project) on the vacant parcel for easy access to the beach. At some point, representatives from the Town informed the Grobelnys that they needed a building permit pursuant to the Municipal Code before continuing work on the Project. Although there was no existing staircase to the beach, the Grobelnys’ permit application of June 9, 2021, stated that they were building the stairs for the purpose of a “replacement and rebuild of the beach access at [their] property.” Plaintiff's Exhibit 1. They also indicated on their application that construction had already begun. Id. Thereafter, on June 17, the Grobelnys filed a second permit application for building a deck that would attach to the stairs. Because the plans they submitted were inadequate under the Municipal Code, the Grobelnys were notified by the Town's building commissioner on July 31 that the initial building permit they had applied for was “invalidated.” Appellant's Appendix Vol. 2 at 15. Thus, the building commissioner issued a stop work order (SWO) that same day. The Grobelnys, however, continued work on the Project.

[5] On October 17, 2021, the building commissioner issued a Notice of Violation (Notice) outlining the issues with the Project and the Grobelnys’ alleged noncompliance with the Municipal Code. A $10,000 fine was assessed against the Grobelnys for the violations, and the Town's Building Code Enforcement Department issued a citation to the Grobelnys that encompassed the time from June 2021 until October 2021. The citation ordered the Grobelnys to remove what they had constructed “pending proper approval and issuance of a valid permit.” Id. at 16. The Grobelnys, however, did not apply for an additional permit and continued construction. On December 20, 2021, the Town issued another SWO that involved the same violations. A $2500 fine and citations were issued on January 14, 2022.

[6] As the Grobelnys paid no fine and continued construction on the Project, the Town filed a complaint to enforce the Municipal Code violations and a motion for a preliminary injunction on July 19, 2022, alleging that the Grobelnys improperly continued work on the Project because a valid permit had not been issued. The Town further claimed that the Grobelnys repeatedly ignored the SWOs and failed to pay the assessed fines. The Town alleged that the Grobelnys had created a nuisance because the Project “posed a health and safety issue to the public.” Id. at 26. Hence, the Town sought a preliminary injunction for the Grobelnys to

remove all construction ․ and prohibiting further construction ․ a judgment against [the Grobelnys] ordering them to take appropriate action to bring the property into compliance with [the Municipal Code] or, alternatively, ordering [the Town] to take appropriate actions to bring the property into compliance, and ordering [the Grobelnys] to pay costs and expenses of [the] action, including ․ reasonable attorney's fees.

Id. at 27.

[7] On May 1, 2023, the Town's building commissioner attached yellow police tape to the deck and stairs to warn the public of potential dangers. Shortly thereafter, however, someone removed the tape and the Town subsequently posted signage at the site that stated, “use of Stairs from Roadway is Restricted.” Transcript at 90.

[8] On October 20, 2023, Senior Judge Eugene Stewart conducted an evidentiary hearing on the Town's complaint and took the matter under advisement. At some point prior to October 23, 2023, the Grobelnys completed the Project. Thereafter, on November 7, Judge Stewart entered an order concluding that the Grobelnys violated the Municipal Code by failing to obtain a building permit and ordered the Groblenys to remove all construction on the property within sixty days. Judge Stewart further determined that the amount of “fines, fees, and costs” that the Grobelnys should pay would be determined at a subsequent hearing. Appellant's Appendix Vol. 2 at 16.

[9] On December 5, 2023, the Grobelnys filed a motion for relief from judgment, claiming that Judge Stewart's ruling was void because the matter proceeded to trial “without proper notice.” Id. at 8. The subsequent and present trial judge, the Honorable Jaime Oss, granted the Grobelnys’ motion and set the Town's complaint for an evidentiary hearing. Although the Grobelnys removed the deck and stairs in March 2024, they did not pay any of the assessed fines.

[10] At a hearing before the present trial court on April 3, 2024, the Town's building commissioner testified that there were no existing stairs on the property prior to the Grobelnys’ submission of the permit application. Also, no drawings or plans of the deck or stairs were approved or inspected by the Town's planning commission before the Grobelnys began construction. The Town presented evidence demonstrating that the deck was dangerous to the public because it “slants, ․ and [was] not secured to the ground and loose plancks [sic] [were] ․ all over.” Transcript at 9. The Town was “concerned that there was a perception that this was a public access and people moving onto that ․ haphazard platform [would think it] ․ was a Town property.” Id. at 111. The Grobelnys’ argument at the hearing was that they were not liable for fines for any alleged Municipal Code violations because they had dismantled the Project prior to the hearing. As a result, they further claimed that they were not responsible for paying costs and/or the Town's attorney's fees.

[11] Following the hearing, the trial court concluded sua sponte that the Municipal Code did not require the Grobelnys to obtain a building permit for the Project. In arriving at that result, the trial court relied on Michiana Shores Mun. Code Art. 1 § 3-1-10-3 and determined that no permit was required because the stairs and deck were not “structures” as defined in that legislation. Appellant's Appendix Vol. 2 at 21. Thus, the Grobelnys were not liable for fines, costs, or the Town's attorney's fees.

[12] The Town now appeals.

Discussion and Decision

[13] The Town argues that the trial court's determination is clearly erroneous because even though the Project did not qualify as a “structure” as defined in the Municipal Code, other provisions required the Grobelnys to obtain a building permit for the Project. And because the Grobelnys failed to do so and the Project qualified as a nuisance and posed a danger to the health and safety of the public, the Town argues that the Grobelnys are liable for fines, costs of the action, and the attorney's fees that the Town expended in prosecuting the violations and abating the nuisance.

[14] We interpret ordinances and statutes using the same methodology. Siwinski v. Town of Ogden Dunes, 949 N.E.2d 825, 828 (Ind. 2011). The interpretation of both is a question of law. Noblesville, Ind. Bd. of Zoning Appeals v. FMG Indianapolis, LLC, 217 N.E.3d 510, 513 (Ind. 2023). We review such legal questions anew, giving the lower tribunal no deference. Id. And when the underlying factual findings are undisputed, courts accept them as true and turn to the legal question governing the case. Id. When interpreting a statute or ordinance, our primary goal is to fulfill the governing body's intent. See id. The “best evidence” of such intent is the language in the statute or ordinance. Id. If the language is clear and unambiguous, we simply apply its plain and ordinary meaning, heeding both what it “does say” and what it “does not say.” MiD. v. State, 57 N.E.3d 809, 812 (Ind. 2016).

[15] Here, because the Town had the burden of proof at the hearing and did not prevail, it is appealing from a negative judgment and will succeed on appeal only if it establishes that the judgment is contrary to law. See Logan v. Evans, 230 N.E.3d 371, 377 (Ind. Ct. App. 2024). Further, before addressing the Town's arguments, we note that the Grobelnys did not file an appellate brief. When an appellee fails to submit a brief, we do not undertake the burden of developing arguments, and we apply a less stringent standard of review, that is, we may reverse if the appellant establishes prima facie error. Bixler v. Delano, 185 N.E.3d 875, 877-78 (Ind. Ct. App. 2022). Prima facie is defined as “at first sight, on first appearance, or on the face of it.” Id. This rule was established so that we might be relieved of the burden of controverting the arguments advanced in favor of reversal where that burden properly rests with the appellee. Id.

[16] In this case, the underlying facts are undisputed. Thus, the lone question before us on review is the legal consequence of undisputed facts—whether the Grobelnys violated the Municipal Code. As the Town correctly points out, the Grobelnys never disputed that they needed a permit for the Project. Instead, they willingly and intentionally applied for two permits, thus clearly recognizing the Town's regulatory authority over the Project.

[17] A permit pertaining to improvements to land or property, commonly referred to as “Improvement Location Permit” or building permit, is defined in the Zoning Ordinance portion of the Municipal Code as follows:

Written permission issued by the Building Commissioner, after application for building permit has been examined by the Plan Commission, to erect, construct, enlarge, alter, repair, move, improve, remove, convert, demolish, or add to any Building or structure within it's [sic] jurisdiction, or cause the same to be done or change the use or condition of the land.

Michiana Shores Mun. Code Art. 1 § 2-1-2-1.

[18] A “structure” as defined in the zoning ordinance in the Municipal Code is: “[a]nything constructed, or erected, the use of which requires location on the ground or attachment to something having location on the ground.” Id. And permits are not to be issued when there is a pending violation of the Municipal Code. See Michiana Shores Mun. Code Art. 1 § 2-1-1-8(F).

[19] Here, when examining the above provisions, it is readily apparent that the Grobelnys were required to obtain a building permit because they were “chang[ing] the use or condition” of their property. Michiana Shores Mun. Code Art. 1 § 2-1-2-1. Moreover, the Town's “Public Health, Safety and Welfare” provision of the Municipal Code is relevant here, defining a “nuisance” as:

[T]he doing of any unlawful act, or the omitting to perform a duty, or the suffering or permitting any condition or thing to be or exist, which act, omission, condition or thing either:

a. injuries [sic] or endangers the comfort, ․ health or safety of others; or

․

d. unlawfully interferes with, obstructs or tends to obstruct or renders dangerous for passage any public or private street, highway, sidewalk, parking area, stream, ditch or drainage way; or

e. in any way renders other persons insecure in life or the use of property; or

f. essentially interferes with the comfortable enjoyment of life and property; or tends to depreciate the value of the property of others.

Michiana Shores Mun. Code Art. 1 § 3-1-12-1.

[20] Additionally, “any use that violates the Town's Ordinance shall be treated as if it were a common nuisance, and the owner or possessor of the structure, land or premises upon which the use is maintained shall be liable for such nuisance.” Michiana Shores Mun. Code Art. 1 § 2-1-1-8(D). Thus, when a nuisance is found to exist, the Town's

․ Building Commission, Assistant Building Commissioner or Building Inspector, may give written notice to the owner or occupant of the property upon which such nuisance exists or upon the person causing, maintaining or responsible for the nuisance.

Michiana Shores Mun. Code Art. 1 § 3-1-12-4.

[21] When a nuisance exists, the Town may reasonably protect travelers from danger because it is their duty to do so when a condition is rendered substantially unsafe. Town of Newcastle v. Grubbs, 86 N.E. 757, 762 (Ind. 1908). In other words, a substantial and unreasonable interference with a right common to the general public, including public health and safety generating concerns from the public at large imputes a duty on public authorities to act. Id.

[22] Here, the evidence established that the Grobelnys’ unpermitted Project posed safety concerns. The Grobelnys were required to obtain a permit for the Project in accordance with the Municipal Code and they did not. Thus, the trial court's sua sponte determination that the Project did not require a building permit was clearly erroneous. Moreover, because the Grobelnys voluntarily submitted to the Town's regulatory authority, refused to obtain a valid permit, and continued their construction of the Project that was deemed a nuisance and a threat to public health or safety, the Town was compelled to exercise its authority to abate the nuisance. See Michiana Shores Mun. Code Art. 1 § 3-1-12-4. And in light of the Grobelnys’ violations, the Town was entitled to impose fines up to $10,000,¹ and recover costs incurred including attorney's fees.

[23] The evidence established that the Town's building commissioner issued SWOs and citations to the Grobelnys for ongoing violations from June through October 2021. And on October 17, 2021, a Notice was issued to the Grobelnys describing the issues surrounding the invalid permit and their noncompliance with the Municipal Code. The Notice also directed the Grobelnys to remove the stairway within 30 days. Additional citations were issued to the Grobelnys in 2022, that again described the violations.

[24] In sum, the evidence established that for more than a year the Town attempted to bring the Grobelnys into compliance with the building and zoning requirements of the Municipal Code. The Grobelnys had ample time to remedy the violations and pay the fines, but they refused and continued to work on the Project, thereby necessitating the Town's enforcement action to abate the nuisance. As a result, the Town was authorized to assess fines against the Grobelnys for their violations.

[25] As for the Town's request to recover costs of the action, Ind. Code § 34-52-1-1(a) provides that a prevailing party shall recover costs in all civil actions. And as outlined in Ind. Trial Rule 54(D), the prevailing party may recover costs “as a matter of course unless a statute or rule expressly provides otherwise or the trial court directs otherwise in accordance with any provision of law.” R.L. Turner Corp. v. Town of Brownsburg, 963 N.E.2d 453, 458 (Ind. 2012). The Municipal Code also specially authorizes the recovery of any and all costs incurred to abate a nuisance: “such costs shall be debts which may be collected by the Town in an appropriate civil action.” Michiana Shores Mun. Code Art. 1 § 3-1-12-8 (B).

[26] As the record indicates, the Town expended substantial effort to bring about the Grobelnys’ compliance with the Municipal Code. The Grobelnys’ refusal to comply prompted the Town to employ measures to protect public health and safety, including taping off the property and posting signage to warn of potential danger. In short, the Grobelnys are liable for the costs of this action, the amount of which is to be calculated on remand.

[27] Finally, as to the Town's request for attorney's fees, we note that Indiana generally follows the American rule that provides “a party must pay his own attorney's fees absent an agreement between the parties, a statute, or other rule to the contrary.” R.L. Turner Corp., 963 N.E.2d at 458. Instructive here is Chapo v. Jefferson Cnty. Plan Comm'n., 224 N.E.3d 971, 984 (Ind. Ct. App. 2023), trans. denied, where a county zoning ordinance authorized the county to recover costs “connected with any legal action to prevent or remedy any ordinance violations from the responsible party.” Id. at 984. A panel of this court determined that the trial court's reliance on the ordinance that permitted an award of “costs”—including attorney's fees—was a proper exercise of discretion. Id.

[28] And so it is here. As the Town requested an award of attorney's fees in its complaint, it is entitled to recover a reasonable amount of those fees expended in enforcing the Municipal Code pursuant to the following provision:

Notwithstanding any other provision herein or in any code or ordinance of the Town of Michiana Shores, any person adjudged guilty of violating any provision of this code or any ordinance shall also be adjudged to pay the cost of the prosecution including attorneys’ fees and the actual damages sustained by the Town by virtue of such violation.

Michiana Shores Mun. Code Art. 1 § 1-1-4-14(B). Thus, on remand, the trial court should calculate the amount of those fees that the Grobelnys must pay.

Conclusion

[29] In light of our discussion above, we conclude that the trial court's determination that the Grobelnys did not violate the Municipal Code was clearly erroneous, in that the Groblenys were required to obtain a building permit prior to constructing the Project. In light of this determination, we further conclude that the Grobelnys are liable to pay fines as a result of their violations and the Town is entitled to costs and reasonable attorney's fees in prosecuting this action. We therefore remand this case to the trial court with instructions that it calculate the amount of fines and costs that the Grobelnys must pay along with the amount of reasonable attorney's fees to which the Town is entitled.

[30] Reversed and remanded.

FOOTNOTES

1.   The Home Rule Statute, Ind. Code § 36-1-3-8(a)(10)(B), provides that a Town may impose a fine of up to $2500 for an initial ordinance violation and an amount not to exceed $7500 for a second or subsequent violation. Additionally, the Municipal Code sets forth various provisions authorizing the Town to assess fines for ordinance violations. See Michiana Shores Mun. Code Art. 1 § 1-1-4-14(A), (D); Michiana Shores Mun. Code Art. 1 § 3-1-l2-3; Michiana Shores Mun. Code Art. 1 § 2-1-1-8(E).

Altice, Chief Judge.

Judges Pyle and DeBoer concur. Pyle, J. and DeBoer, J., concur.