ATTORNEYS FOR APPELLANTS: APPELLEE PRO SE:
PHILLIP A. RENZ DENNIS WAYNE FAHLSING
MONICA S. WEAVER Avilla, Indiana
Miller Carson Boxberger & Murphy LLP
Fort Wayne, Indiana
NOBLE COUNTY BOARD OF ) COMMISSIONERS and NOBLE COUNTY ) BUILDING DEPARTMENT, through ) Richard A. Adair, its Building Inspector, ) ) Appellants-Plaintiffs, ) ) vs. ) No. 57A04-9806-CV-278 ) DENNIS WAYNE FAHLSING, ) a/k/a Dennis Wayne; Fahlsing, ) ) Appellee-Defendant. )
Fahlsing to stop construction. Fahlsing posted "No Trespassing" signs on his property and
continued construction. The County then sought a preliminary injunction and temporary
restraining order against Falhsing, which Judge Probst issued. After Special Judge Brown
was appointed, the court reversed the temporary restraining order against Fahlsing.
Specifically, Judge Brown determined that the structure was an accessory to Fahlsing's
residence and, thus, was subject to the home exemption under Indiana Code Section 36-7-8-
3(d). The County filed a motion to correct error, which the trial court denied.
Harry H. Verkler Contractor, Inc., 681 N.E.2d 243, 248 (Ind. Ct. App. 1997), trans. denied.
Undefined words are given their plain, ordinary and usual meaning, Ind. Code § 1-1-4-1(c),
and courts may consult English language dictionaries to ascertain the plain and ordinary
meaning of a statutory term. Moduform, 681 N.E.2d at 248. Still, the legislative intent as
ascertained from the whole prevails over the strict, literal meaning of any word or term used
therein, and we presume that the legislature intends for this court to apply language in a
logical manner consistent with the statute's underlying policy and goals. Chavis, 683 N.E.2d
In Rogers v. Noble County, 679 N.E.2d 158, 162-63 (Ind. Ct. App. 1997), trans. denied, we held that Noble County enacted its Building Code pursuant to Indiana Code Section 36-7-8-3, which provides:
(a) The legislative body of a county having a county department of buildings or joint city-county building department may, by ordinance, adopt building, heating, ventilating, air conditioning, electrical, plumbing, and sanitation standards for unincorporated areas of the county. These standards take effect only on the legislative body's receipt of written approval from the fire prevention and building safety commission.
(b) An ordinance adopted under this section must be based on occupancy, and
it applies to:
(1) the construction, alteration, equipment, use, occupancy, location,
and maintenance of buildings, structures, and appurtenances that are on
land or over water and are:
(A) erected after the ordinance takes effect;
(B) if expressly provided by the ordinance, existing when the ordinance takes effect;
(3) the movement or demolition of buildings, structures, and equipment
for the operation of buildings and structures.
(c) The rules of the fire prevention and building safety commission are the
minimum standards upon which ordinances adopted under this section must
(d) An ordinance adopted under this section does not apply to private homes
that are built by individuals and used for their own occupancy.
In Robinson v. Monroe County, 658 N.E.2d 647, 650-51 (Ind. Ct. App. 1995), this court first construed Indiana Code Section 36-7-8-3 and concluded that the clear legislative purpose of the statute was to ensure safe buildings. We also determined, however, that "[s]ubsection (d) represents an exception to the safety-oriented requirements set forth elsewhere in the statute and thus is contrary to the purpose of the statute." Id. at 650. Explaining the rationale for such an exemption, we stated:
We can conceive of only one purpose which could justify allowing a builder to circumvent certain applicable building safety ordinances when he builds a house which he will occupy. In its early stages, this country's frontier was moved westward by pioneers who moved onto land and built houses by hand. Since then, home owning has become an essential facet of the "American dream." It may be that ordinances such as those contemplated by IC 36-7-8-3, which establishes construction specifications and require permits and inspections for residential construction projects, interfere with the ability of some individuals to build their own home and thus to pursue the American dream.
Building codes and ordinances may conceivably discourage or impede such individuals from building their own houses. A private individual building his own house may not possess the skills necessary to construct a building which complies with the technical specifications set out in the ordinances. In
addition, an individual may not be able to afford to hire professionals or others
to build a house.
Id. at 651.
In Robinson, there was no question that the structure at issue was to be used as the person's residence and, thus, the structure was a "home" in its most traditional sense. In this case, however, Fahlsing does not argue that the structure is a residence. Fahlsing informed the County on his electrical services permit that the structure was a "shop or warehouse." In its order, the trial court determined that the home exemption provision is not limited to persons who build residences. Specifically, the court reasoned:
In reviewing I.C. 36-7-8-3(d), it is interesting to note that the legislature chose to use the word "homes" rather than "houses" in describing exempt structures. Clearly a house is a building while a home seems to imply something more. One's home certainly includes his house, but should also include accessory structures such as those described in I.C. 22-12-1-5 which are used and occupied by the owner and his family. By way of illustration, if an individual was constructing a house with an attached garage for his own occupancy, there is little doubt that the house and garage would meet the exemption requirements of I.C. 36-7-8-3(d). It would seem illogical to hold that if the individual chose to construct a house with a detached garage, the garage under those circumstances would not be part of his home, and not meet the same exemption.
The legislature provided no definition of "private home" and, thus, we shall apply the plain, ordinary and usual meaning. See Ind. Code § 1-1-4-1(c). The word "home" has multiple meanings depending on the context in which it is used. For example, "home" can mean "a place where one lives; a residence" or "a headquarters; a home base." The American Heritage Dictionary of the English Language 864 (3d ed. 1992). If the legislative purpose behind the home exemption provision were to allow, without a permit,
individuals who cannot afford to pay professionals to construct their own homes, we can
discern no logical reason why the legislature would allow them to do so only when
constructing the actual physical structure in which they will dwell. Building a house, which
requires plumbing, heating and electrical wiring, can be far more complex than building a
personal garage, barn, shop or warehouse. The broad meaning of "home," combined with
the legislative purpose behind the adoption of subsection (d), leads us to conclude that
"private home" is not limited to the physical structure used as a person's residence.
In this case, however, Fahlsing's warehouse is located three miles away and on a separate plot of land from his residence. Fahlsing refers to his property as a "homestead" and asserts that, despite the distance between his residence and the warehouse, the home exemption provision still applies. We must disagree.
The American Heritage Dictionary of the English Language defines "homestead" as "a house, especially a farmhouse, with adjoining buildings and land." Id. at 865. Similarly, our legislature has defined "homestead" for property taxation purposes as "an individual's principal place of residence which . . . consists of a dwelling and the real estate, not exceeding one (1) acre, that immediately surrounds the dwelling." Ind. Code § 6-1.1-20.9- 1(2)(C); see also Ind. Admin. Code tit. 50, r. 2.2-4-1(9) ("Homesite" for real property assessment means a land area of one acre per residential site on a parcel containing one or more acres). Implicit in these definitions is that the land, residence and any accessory building must be contiguous. Indeed, the Indiana Administrative Code defines "accessory structure" as "a building, the use of which is incidental to that of the main building and which
is located on the same lot." Ind. Admin. Code tit. 675, r. 14-4-1. We agree with the trial
court's finding that "private home," as used in the home exemption provision, includes
accessory structures. Nevertheless, we decline to expand the term "private home" beyond
accessory structures which are located in proximity, incidental to and within the same site
as the primary residence. Therefore, we reverse the trial court's decision to revoke the
preliminary injunction and restraining order previously entered against Fahlsing and remand
with instructions that the injunction to be reinstated.
but not limited to counties, with a broad power to inspect, at any reasonable time and without
geographic limitation, any structure or other improvement. Indiana Code Section 36-7-8-3,
however, applies only to counties and allows counties to establish by ordinance specific and
limited standards for those structures built in unincorporated areas. In addition, we held in
Robinson that the home exemption provision under Indiana Code Section 36-7-8-3(d) only
creates an exemption from the requirements set out in Section 3. Robinson, 658 N.E.2d at
652. Thus, we reject Fahlsing's contention that the trial court erred when it determined that
his structure was subject to inspection by the county under Indiana Code Section 36-7-2-3.
We also disagree with Fahlsing's assertion that inspection of his structure under Indiana Code Section 36-7-2-3 violates his Fourth Amendment rights. The Fourth Amendment to the United States Constitution establishes the right of persons to be secure in their persons, houses, papers and effects, and guards against unreasonable searches and seizures. Starzenski v. City of Elkhart, 659 N.E.2d 1132, 1138 (Ind. Ct. App. 1996), trans. denied. Absent consent or exigent circumstances, a private home may not be entered to conduct a search or effect a seizure without a warrant. Id. This protection has been extended to unreasonable searches and seizures of property in the civil context. Id. (citing Soldal v. Cook County, Ill., 506 U.S. 56 (1992)).
Indiana Code Section 36-7-9-16(b) provides that if an owner of a structure or building refuses inspection, the inspection officer may obtain an inspection warrant in order to determine if the building is unsafe. Under the inspection warrant statute, the person seeking the warrant must show that probable cause exists to believe the building is in an unsafe
condition justifying the search. Id. The trial court's findings in this case do not purport to
void the inspection warrant requirement. As a result, if Fahlsing refuses to allow the county
to inspect the structure for its safeness, the county may then obtain an inspection warrant
pursuant to Indiana Code Section 36-7-9-16. We find no Fourth Amendment violation.
success, however, does not excuse his deliberate filing of a bogus lien against the property
of persons who owed him no legal obligation. Fahlsing has not shown an abuse of discretion.
Affirmed in part, reversed in part and remanded with instructions.
GARRARD, J., and KIRSCH, J., concur.
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