Monroe County filed civil suit in Circuit Court against us on or about June 22, 2012, alleging violations of the building ordinance and the zoning ordinance in regard to a building we erected in the summer of 2011 on our property about a mile east of Bloomington. The building, with a footprint of approximately 16'x30', two stories, and an external stair and second-floor deck attached, was located on the northern edge of our property at 5421-5425 E. Kings Road.
Our farm constructions
We built this mini-barn for the purposes of supporting our micro-farming operations at Renaissance Farm. We are permaculture designers and have been extensively involved in local agriculture through the Local Growers Guild, and by teaching agricultural design to students through Indiana University.
Peter is the author of The Permaculture Handbook: Garden Farming for Town and Country, which makes the case for a major expansion of small farms in urban regions across the US and Canada. The property we bought in 2006 did not then have any garage or other structure suitable for drying and storing crops, or for extracting honey, all of which activities were part of our homestead work, then steadily expanding. We also erected two greenhouses beginning in 2007, two woodsheds dating from 2006, and two cisterns, also from 2007, to support our farming. Furthermore, as a matter of repair and to accommodate solar panels, we rebuilt the porch of the original 1958 house and covered it in 2009.
Attention garnered, mostly good, but…
Our farming activities, which included front-yard gardens and orchards, attracted positive attention from hundreds within and beyond the community. Visitors would often drop by unannounced simply to see what we had done. We did not charge, and tried always to be accommodating. Tour groups from the Grow Organic Educator Series, led by Lucille Bertuccio, board and volunteers with the Bloomington Community Orchard, courses from the local area, and others were regular visitors to see our innovative design solutions.
Apparently, and mostly unknown to us, these same low-key, quiet, and organic activities drew the disapproval of a single (deranged) individual living down the street from us. He will remain unnamed here, but he later became a complainer (remonstrator) to the variance petitions we filed and which were heard before the Board of Zoning Appeals on April 3, 2013. As such, his intemperate and perhaps libellous letter about us became a matter of public record. In it, he admits to a pattern of activity and to knowledge that could only have come from stalking and meddling in our affairs, to potentially corrupt engagement with the County Building Department, and perhaps worse.
First encounters with County administration
When we rebuilt our collapsing front porch in 2009, this individual reported activity to the Co. Building Dept., which sent out an inspector (we never met him then) to place a red tag' on the new porch on Dec. 23, 2009, then nearly complete. The tag asked us to contact the Building Dept., because we “might have been in violation of building codes or permit ordinances.”
Peter called Mr. Jim Gerstbauer, head of the Building Dept., a section of county government that answers directly to the Commissioners, and informed him that we were building deliberately without a permit under our state-sanctioned right as property owners to build for ourselves on our own homestead land without obtaining a county bldg. permit and without having to conform to county or any other building codes. This section of law, IC-36-7-8-3, was enacted in 1981 by the Legislature as a political compromise with rural legislators who objected to the authorizing of county building codes and departments. This was part of a broader move by Republicans across the country to sweep more properties into the national mortgage market, which of course required that they be code approved. It is known in the vernacular as The Log Cabin Law. The law has been further interpreted liberally in favor of homeowner freedom of action by the State Court of Appeals in a 1995 decision overturning a lower court's ruling in favor of Monroe County in an action brought against Jesse Robinson for building on his own property and hiring labor. Mr. David Schilling was the County Attorney who filed this case on behalf of Monroe.
The Building Dept. head told Peter that Monroe Co. did not want to sue its citizens, but that he (the Director) would still be obliged to report the matter to the Legal Dept. Call ended.
Evidence of malfeasance
When we installed solar panels on the porch roof the following month, we worked with Alex Jarvis of Indiana Solar, and his electrical contractor, Atomic Electric, to do the hook-up to the Duke grid. The electrician pulled a permit in our name, the work and connection were duly and properly done, and an inspector, Mr. Kurt Sylvester, came out from the Bldg. Dept. to inspect the work. He indicated verbally that all was in order, but went on to say, in front of four witnesses, that he could not sign off the permit, indicating compliance, because he “wanted to keep his job.” In other words, he was being coerced by his superiors to withhold approval from us, in defiance of regular practice and the evidence of his senses, because they did not view our construction as legitimate.
This was a red-flag alert to us that County administration was untrustworthy, had attitudes against owner builders that defied state statute, and should be viewed with intense skepticism. We have since learned that our opinions in this regard were not isolated. After successfully interconnecting our solar power station with Duke's grid on February 1, 2010, we sought legal counsel to contact the County Attorney, David Schilling, requesting clarification of this unusual situation. Mr. Schilling told our attorney that we were right on the law, and told us to ignore the Building Dept.
At the end of 2010, we were again contacted by a clerk in the Building Dept. seeking to tie up the matter. She seemed quite miffed when we indicated on the phone that we would not be obtaining a permit for the porch work, and that we could do nothing to complete the electrical permit then open because of attitudes within her department.
The County officials throughout have seemed to indicate that they view themselves as helpful to permit applicants and will give guidance on how to best solve problems in development. While this may be true from some perspectives, we should point out that our very first encounter with County government (besides voting) showed it to be duplicitous and manipulative. We do not know how the Planning Dept. can with a straight face claim to be the good guy when its next-door office mates in Building Dept. are conspiring to violate state law and to harass owner-builders. This is cognitive dissonance at its Hoosier finest.
The barn is built
Forward to September 19, 2011, when the same inspector, Kurt Sylvester, appeared at our construction site while the barn was being built. He delivered a red tag to Keith (Peter was away buying materials), spoke briefly to one of our three hired helpers then present, and left. Peter again contacted the Building Dept., this time by letter, to say that we were building the structure by ourselves, with hired help (which is permitted under the law), and that we knew that no permit was required. We got no reply.
Sometime around October 19, 2011, Keith took a call from a man, claiming to work in the Planning Dept., suggesting that we would need an Improvement Location Permit for the work we were doing on the property. The man didn't leave his name. Peter called back to the department the next day, and spoke with a woman clerk who knew nothing about the previous day's call. Peter was given the voice mail for Larry Wilson, Director of Planning, and left a message asking about the mystery call, providing our contact information. We never heard back from Planning. Later, Planning Dept. would claim, in our variance proceedings of 2013, that while they keep a log of all incoming calls, they had no record of Peter's call to them of October 2011. Dept. of Historical Amnesia at your service. Perhaps our mystery caller was the nefarious snitch, but why would Planning lose the record of an inquiring call? We have since learned that Mr. Wilson has earned a reputation for not returning calls, so we no longer feel especially slighted, but you can imagine that after being ignored, we felt there was no “there” there, and that our situation would of no concern to County. We went on with our lives.
The arrow lands
We heard nothing from County until the complaint and notice of civil suit arrived June 23, 2012. The County alleged that we had 1) built the barn without a proper building permit; 2) that we had altered the site without an Improvement Location Permit (ILP); and 3) that we were occupying the barn without a Certificate of Occupancy. There was later some mumbling about a failure to get a grading permit. The first of these claims, we later learned through our attorney from Mr. Schilling, was based on information provided (we would call it false witness) by Mr. Sylvester, claiming that he had seen contractors at our site. Of course, as owner-builders we would be exempt from building permit requirements, but if we had hired a contractor to manage the construction, the allegation might have stood up. It was later dropped by County in a refiling of the claim.
The MC zoning ordinance very clearly states in plain language that buildings for agricultural production are exempt from the requirement to obtain an ILP. We believed that this covered our purpose for building. And without a building permit being required or issued, the County would never authorize a Certificate of Occupancy, which is their assurance to the owner and public that the building meets code. It did not need to because we built for ourselves, so the third charge was also moot. The grading issue, later dropped, seems like a red herring, and in any case, no erosion occurred from the construction, as we took meticulous measures to prevent it.
We retained counsel to represent our interests, and he assured us that the matter could be cleared up in a few weeks. We contacted then Commissioner Mark Stoops, who knew us, had visited the farm, and had even seen the barn. He was guarded on the phone (also then running for State Senate), indicating that he thought we would have to try to get a variance.
Negotiations between our attorney and Schilling revealed his attitude as being negative toward us, and the case was not dropped. As part of the back and forth, Schilling requested a chronology and description of our building project in order to determine whether we had employed a contractor, and he further asked for a list of those individuals who had helped us during the construction. We dutifully and fully provided these, though in retrospect, we might have been more guarded if we had known that some of our friends on the list would also fall victim to questionable County zoning enforcement - a fractal of the absurdity we have faced.
We are inspected
On October 4, “discovery” was arranged for pursuant to the court case, and Mr. Jason Eakin, Asst. Director of Planning, accompanied by Schilling, arrived at our property to inspect conditions on the lot. They brought a tape measure and proceeded to measure setbacks for all the buildings. They did not measure the height of the barn, but took a number that we provided, which we later learned had been based on an incomplete understanding of the law, and was therefore in error. It nevertheless entered the public record through the variance petition and hearing process.
After the discovery inspection, Mr. Schilling re-filed his complaint to drop the 1st charge of failing to obtain a building permit. He added claims that we were conducting commercial operations in the manufacturing of gourd products (he had seen pumpkins stored in the barn), something we regarded as laughable and yet indicative of his ignorance on the subject of farming and horticulture. There seemed to be a determination to slap us with anything that might look halfway plausible. It's likely that damage control for overreach was already part of the County approach.
On the way to the BZA
Negotiations between the attorneys led to an agreement with the court that the matter would be sent to the Board of Zoning Appeals for resolution through variance petitions.
This proceeded through some months and a hearing was finally held on April 3, 2013. The County Planning Dept. issued an 89-page report on 8 petitions, urging the BZA to reject them all. Approximately 13 letters of support were filed prior to the hearing.
There were two remonstrators (objectors). One was an adjacent property owner (landlord, not a resident) who lived absentee most of the year in Texas, and who did not state objection to the building or the manner in which the lot was kept, but felt that things would be “too crowded.” This man may have felt obliged to spurn us in defense of his tenant, with whom we had had several disagreements (barking dog, burning fires at odd times). Or he may have been a friend urged on by the other remostrator.
The other letter, from a more distant owner on our street, took the view that we were “scofflaws,” and referred to actions of the Building Dept. against us, ignorant of their
frivolous basis in law. This second remonstrator outed himself as the stalker and provocateur of the whole case.
An outpouring of goodwill
Prior to the variance hearing, a petition with over 200 signatures was collected. A separate petition signed by 17 neighbors on Kings Road was collected, both in support. The hearing was held in the large room atop the Courthouse where the Commissioners meet. The room was filled to overflowing, an unprecedented turnout
by more than 85 people. Some 35 individuals waited two hours to give sworn testimony in support of our petitions. This group included four City of Bloomington Common Council members (represented by one of them and with a signed letter), two ministers, a medical doctor, two attorneys, a surveyor who had worked on the original City zoning ordinance to which we were subject, two tenured IU professors, prominent business people in Bloomington, and a host of folks we knew - students, friends - along with some we did not. One man attempting to testify that he had concerns about the way we had “gone about the process” was ruled out of order by the presiding officer of the BZA. In his defence, he said that he did not object to the building, and in a telling slip that was little noticed by most in attendance, he gave an address on Kings Road as his residence that is not occupied or doesn't exist. In other words, he perjured himself, probably having been put up to the job by the vicious remonstrator who feared attending in person.
The meeting went on four hours, completely consuming the evening's agenda. Highlights included a characterization of the neighborhood as filled with upscale homes, a conclusion by Mr. Eakin that was roundly repudiated in testimony by actual residents who lived there. Also, late in the evening, when Eakin asserted yet again that the barn could have been relocated elsewhere on the lot, Peter pointed out that movement of the barn even a few feet to the south, let alone the 10' urged by Planning, would fatally compromise the septic system. Mr. Eakin then admitted that he had not considered the location of the septic field in making his recommendations. Or, we might add, did he take proper account of any other environmental factors.
Mr. Scott Wells, one of the BZA members, made a valiant effort to sway his colleagues to the view that only small allowances were being requested, “…a matter of feet and inches…,” while the BZA had been all too happy not long back to grant a large telecoms company 378' of variance on a 500' setback requirement for isolating a cell tower from a public school. It almost seemed as if he had won the day, but Mr. Peter Kasmarczyk, another board member, who had seemed to sleep through the whole proceedings, roused himself, made comparisons between the audience and “a mob,” and seemed to poison the atmosphere. At the end of the hearing, Kasmarczyk fled the building.
A real mess is created
While granting the petitions regarding setback of the minor buildings, the BZA rejected the petition for setback of the barn, leaving the situation compromised and resolution unclear. In the case of the woodsheds, cistern, and greenhouse they were persuaded to grant variances. (The greenhouse was the most absurd situation of all: a nonpermanent structure that could have been disassembled in 3 hours was required to get a variance for setback from a non-operating section of former right-of-way, part of which we owned, but which the County having buried under a foot of soil 20 years earlier, nonetheless had failed to vacate legally; the greenhouse was already physically set back more than 65' from the actual operating right-of-way of Kings Road.) Should we laugh or cry?
Importantly, the lot area coverage variance was granted sufficient to cover all the structures then extant on the property. However, along the way, Planning staff, in anticipation of a clean sweep by our team, passed to the Board a request for six conditions to be attached to the granting of all the variances. We were required to
screen the N, S, and West sides of the lot with shrubbery or fencing, and to obtain a new septic permit and inspection to insure adequate service from the existing system. We were ordered to cease use of the area determined to be right-of-way, to provide an adequate turnaround within the property to permit vehicles to exit the driveway going forward onto Kings Road, and we were asked to file assurances with the County that we would not conduct any retail sales on site except those incidental to agricultural production, and to abstain from holding classes on the property. These conditions were accepted by the BZA and made a requirement for our obtaining the variances we were ultimately granted (even though the initial quid pro quo had assumed we would get all the variances, not just half a loaf.)
Trying to find a way forward
Along with our attorney, Peter met with the Planning Dept. Director and Asst. Director in May. They discussed possible resolutions to the barn issue - including declaring the building a shed and requesting the BZA to rule on a height variance, a petition which had been set aside in favor of the setback approach. No certain answers were made clear. Meanwhile we took steps to comply with the six conditions set by the BZA, and waited.
Conferences between the attorneys and Judge Valeri Haughton brought her up to date on developments, while she remained patient about the unfolding of a difficult situation.
By January, the Planning Dept. felt compelled to close off the possibility of an appeal on the height problem by issuing a finding that the building was in fact a barn. The law on this is quite murky. Nothing in the zoning ordinance defines a barn or a shed except by common language assumptions. There are no characteristics or qualifications for a barn that restrict or enable use, or that prohibit or require placements. Nevertheless, in a mostly made-up bit of legerdemain, the Director of Planning asserted by fiat that the structure would be deemed a barn, making it ineligible for consideration as a residential accessory structure (a shed, for instance). Instead, it was claimed to be a “primary use structure” such as a house, and would therefore need side setback appropriate to the zoning district standard for an undersized or “substandard” lot (15').
Given the nature of the barn/shed and its location hard on the edge of the septic field, this was impossible to achieve while preserving any portion of the building.
Seeing that one of our best remaining options for resolution (a height variance) was
being foreclosed, we filed an objection to the Director's ruling, and this went before the BZA in May 2014. Mr. Wells was absent, but the open fifth seat on the Board had since been filled. Our petition met with unanimous rejection as the Director whined and complained that he was only taking us at our word and what could he depend on if not how we represented ourselves? It seemed not to matter than the stage-managing of the first hearing had been done by his department and the County Attorney, and that they, not we, had determined that the petition to be considered on the barn would be for setback rather than height. These details do seem to matter, though their impact can only be seen in hindsight. We felt that we had been set up. Within two months of that hearing, the Planning Dept., following orders from the Plan
Commission, sent us a letter indicating that they would enforce the ordinance through court action. In response, we proposed, through our attorney, a text amendment for a small district of the houses nearest us on Kings Road, all of which suffered from being too small for the zoning district requirements, and all of which had been negatively impacted in a legal and development way by the 1993 relocation of the road (the same problem which had occurred with our greenhouse being deemed too close to the rightof- way). In other words, the text amendment proposed to solve real problems created by County negligence and the peculiar history of the area.
Negotiations and meetings ensued, while we sought and obtained support or consent from all our adjacent neighbors and those affected by the proposed text change. In September, the County made clear that while we had the right to file, for a fee of $1000, the proposed text changes, which would have resolved the legal issues remaining, that our proposal would be rejected by the Plan Commission, so please don't bother.
Back to the court
At that point, we entered new negotiations to establish an agreed order, to be signed and overseen by the Court, that would set the conditions for resolving the remaining issues. We agreed “to remove or reconstruct the building to conform to the design standards of the zoning ordinance in regard to height and setback.” We also agreed to accomplish the work by July 15, 2015, to pay court costs and a fine of $1,000, and to obtain an ILP prior to initiating the work. It's ironic that we could and did put the building up without an ILP, but they didn't want us to take it down without one.
A resolution still pending
Much of the rest of what followed is more fully detailed in our letter (Word Document) which refers to this document. We raised the ground at the front of the building in a manner consistent with all the relevant specifications of the ordinance, effectively lowering its legal height. We also made reconstructive changes to the inside of the building in order to support it in its new condition partially buried at the front. And while this did not do what the County officials expected would ensue from the order, we fully believe that it meets the written terms of the order and the design standards of the zoning ordinance. We therefore believe that County should take the opportunity created by our compliance to relinquish any further claims and let the matter come to rest.