ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE:

LAWRENCE McCORMACK BRIAN L. OAKS

Kokomo, Indiana Kokomo, Indiana

LIBBY GOODKNIGHT

Krieg DeVault, LLP

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

KOKOMO BOARD OF ZONING )

APPEALS, )

)

Appellant-Defendant, )

)

 vs. ) No. 34A02-1312-MI-01081

)

MARKLAND PROPERTIES, LLC )

THRUST INC. d/b/a TEASE BAR )

BRETT MORROW and DUSTIN OGLE, )

)

Appellees-Plaintiffs. )

APPEAL FROM THE HOWARD CIRCUIT COURT

The Honorable William C. Menges, Jr., Special Judge

Cause No. 34C01-1301-MI-0037

September 10, 2014

MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge 

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of 

establishing the defense of res judicata, 

collateral estoppel, or the law of the case.
2

The Kokomo Board of Zoning Appeals (“the BZA”) appeals the Howard Circuit 

Court’s order reversing the BZA’s decision that Markland Properties, LLC, Thrust Inc. 

d/b/a Tease Bar, Brett Morrow and Dustin Ogle (collectively “Tease Bar”) increased the 

floor area of the business beyond the ten percent expansion allowed under Kokomo’s 

Zoning Ordinance, and therefore, Tease Bar could no longer operate its sexually oriented 

adult entertainment business as a legal-nonconforming use.1 

We affirm.

Facts and Procedural History

Tease Bar (formerly known as the Body Shop) is located at 107 East Markland 

Avenue in Kokomo, Indiana. Since the early 1990s, the owners of the building have 

operated a bar on the premises, and the owners added adult entertainment, i.e. exotic 

dancing, on some date prior to the 2002 passage of an amendment to Kokomo’s Zoning 

Ordinance that limited the location of sexually oriented entertainment businesses within 

the City of Kokomo. Therefore, the Tease Bar continued its operation as a legalnonconforming use under Kokomo’s zoning ordinance.2

 

Tease Bar is located in a building that had two retail spaces on the ground floor. 

Tease Bar occupied the larger of the two spaces and, from time to time, various 

businesses operated out of the second retail space. Originally, there were also apartments 

 1 We conclude that this issue is dispositive and therefore we do not address whether the trial court’s 

consideration of the constitutionality of the Zoning Ordinance was beyond the scope of the trial court’s 

judicial review because the issue was not raised in the proceedings before the BZA.

2 Specifically, the Section 6.58(B) of Kokomo’s Zoning Ordinance prohibits sexually oriented 

entertainment businesses from being located within 1000 feet of a school, church, or similar place of 

worship and within 1000 feet of the right of way of any state or federal highway. Tease Bar is located 

within 1000 feet of a state highway and two churches. Ex. Vol., Respondent’s Ex. B.
3

on the second floor of the building. Markland Properties purchased the building in 2012

on contract from Ronald and Isabella Johnson (“the Johnsons”). Markland Properties 

then began to renovate the property. During the renovations, Markland Properties 

removed the wall that previously separated Tease Bar from the second retail space. 

Markland Properties desired to enlarge Tease Bar to utilize the entire ground floor of the 

building. Tease Bar’s square footage was allegedly enlarged by approximately 19%.

On November 13, 2012, Tease Bar received a “cease and desist” letter from Greg 

Sheline, the director of the Kokomo Plan Commission, which states:

When you applied for your certificate of occupancy, the City of Kokomo 

Department of Inspections informed the Kokomo Plan Commission that 

your property had been expanded during a recent renovation. The total 

square footage of the property increased from approximately 5092 sq. ft. to 

approximately 6062 sq. ft., which is an expansion over nineteen percent 

(19%). The zoning ordinance prohibits an expansion or enlargement of an 

existing structure that is [] a Legal-Nonconforming Use unless the

expansion does not exceed ten percent (10%) of the existing floor area. As 

your expansion increased the floor area of the structure by more than the 

ten percent (10%) threshold, your property is no longer considered a LegalNonconforming use as a Sexually Oriented Entertainment Business. 

Therefore you may not operate a Sexually Oriented Entertainment Business 

on the property.

Appellant’s App. p. 113. 

Section 8.5 of the Kokomo Zoning Ordinance provides in relevant part:

Any continuous, lawful use of structures, land, or structures and land in 

combination established prior to the effective date of this Zoning Ordinance 

or it subsequent amendments that is no longer a permitted use in the district 

where it is located shall be deemed a Legal-Nonconforming Use. A LegalNonconforming use may continue provided that it remains otherwise lawful, 

subject to the following conditions:
4

A. No existing structure devoted to a Legal-Nonconforming use shall be 

enlarged, expanded, increased, extended, constructed, reconstructed, moved, 

or structurally altered unless it:

a. Complies with section 8.5D for limited and small expansions, . . .

***

C. Any Legal-Nonconforming use of a structure may be extended 

throughout any parts of a building which were plainly arranged or designed 

for such use at the effective date of this Zoning Ordinance or its subsequent 

amendments, but no such use shall be extended to occupy any land outside 

the building. 

D. In the case of a Legal-Nonconforming use of structure, the structure may 

be expanded two times only. Each of the two expansions may not exceed 

10% of the existing floor area. The expansion shall conform to all 

applicable development standards except for landscaping, unless a variance 

of developmental standards is received from the Board of Zoning 

Appeals. . . .

Appellant’s App. p. 90. The Zoning Ordinance defines the term “structure” as: 

“[a]nything constructed or erected which requires location on the ground or attachment to 

something having a location on the ground, including but not limited to buildings, sheds, 

detached garages, mobile homes, manufactured homes, above-ground storage tanks, 

freestanding signs and other similar items.” Id. at 92. 

Tease Bar appealed Plan Commissioner Sheline’s cease and desist order to the 

BZA. After a hearing was held on December 13, 2012, the BZA upheld Sheline’s 

decision that Tease Bar lost its legal-nonconforming use status because it expanded the 

square footage of its business beyond the 10% maximum allowed in the Kokomo Zoning 

Ordinance. Specifically, the BZA determined that:

The expansion of the East Section[3] into the West Section enlarged the 

former legal-nonconforming use from approximately 5,092 square feet to 

approximately 6,062 square feet. This reconstruction resulted in a one-time 

 3 The East Section refers to the Tease Bar’s original location in the building and the West Section refers 

to the other ground floor retail space, which was occupied by various businesses through the years.
5

expansion of at least nineteen percent (19%). As the Kokomo Zoning 

Ordinance only permits an expansion of ten percent (10%) at one time, the 

petitioner exceeded the limits on the previous legal-nonconforming use 

enjoyed by the previous sexually oriented entertainment business. The 

expansion extinguished the prior legal-nonconforming status, therefore 

making the current sexually oriented entertainment establishment located at 

107 E. Markland Ave. a nonconforming use and subject to all the penalties 

provided in the Kokomo Zoning Ordinance. 

Ex. Vol., Respondent’s Ex. B. Thereafter, Tease Bar filed a Verified Petition for Judicial 

Review of the BZA’s ruling. 

A hearing was held on Tease Bar’s petition on July 23, 2013. The trial court 

issued its findings of fact and conclusions thereon on December 3, 2013, in which the 

court granted Tease Bar’s petition for Judicial Review after concluding that Tease Bar 

did not lose its status as a legal-nonconforming use. Specifically, the court found:

The BZA relied upon the contention that the Petitioners expanded 

the structure in excess of the ten percent (10%) allowance, to support their 

determination that the Petitioners thus lost their previous legal nonconforming use. It is clear, within the plain reading of Ordinances 6279 

and 6613, that there was no evidence introduced to support the contention 

that the structure was enlarged, expanded, increased, or extended. While 

there was evidence that the legal non-conforming use was extended through 

the existing structure, there was no evidence, nor did the Director contend 

or notify the Petitioners that he considered the expansion was through part 

of the building not plainly arranged or designed for such use. Thus, it 

would appear, that the expansion of the square footage devoted to use by 

the bar, was explicitly permitted under the terms of the existing ordinance. 

Therefore, the BZA’s determination that the increased use of the existing 

structure was not supported by sufficient evidence, and was thus, arbitrary, 

capricious and not supported by law The determination should be reversed.

Even if a tortured reading of the ordinances would support the 

BZA’s findings, there are still serious problems with their final 

determination. The Court is not considering the constitutionality of the 

restrictions placed [on] sexually oriented entertainment businesses within 

the City of Kokomo; it is assuming that the ordinance is proper, valid and 

necessary. The constitutional protections still exist when applied to the 
6

termination of the Petitioners’ legal non-conforming use. It is assumed, for 

the purposes of this discussion that sexually oriented entertainment 

businesses create or cause areas to deteriorate and become a focus of 

undesirable activities, including, prostitution, sexual assault, and associated 

crimes. And, it is further assumed that allowing existing businesses to 

expand, in the aggregate, in excess of twenty percent (20%), creates the 

same legitimate concern to be regulated by government. Careful 

examination must still be made, however, of the importance of the 

governmental interests advanced and the extent to which they are served by 

the challenged regulation. There is no question of the importance of the 

governmental interests advanced under these assumptions. But, regardless 

of those interests, and their importance, the Court can see no way they are 

advanced by allowing existing businesses two expansions not to exceed ten 

percent (10%) each, without temporal (or any other) limitation to the 

expansions, other than their gross aggregate amount. By enacting an 

ordinance that allows an expansion of a total of twenty percent (20%) of the 

existing use, the City was implicitly finding that such an expansion would 

not advance the governmental interests. Under the terms of the ordinance, 

as argued by the BZA, the Petitioners would have been permitted to expand 

their non-conforming use by ten percent (10%) one day, and by another ten 

percent (10%) the next. How allowing this, but prohibiting a single 

expansion of twenty percent (20%) would serve to advance any 

governmental interest is incomprehensible. Therefore, even if the BZA’s 

determination was supported by any credible evidence, it is still contrary to 

law, and must be reversed.

Appellant’s App. pp. 16-17 (emphasis in original). The BZA now appeals the trial 

court’s determination that under Kokomo’s Zoning Ordinance, Tease Bar may continue 

to operate its sexually oriented entertainment business as a legal-nonconforming use.

Standard of Review

The trial court issued findings of fact and conclusions thereon pursuant to Indiana 

Trial Rule 52(A). Our standard of review is well-settled:

First, we must determine whether the evidence supports the trial court’s 

findings of fact. Second, we must determine whether those findings of fact 

support the trial court’s conclusions of law. We will set aside the findings 

only if they are clearly erroneous. Findings are clearly erroneous only when 

the record contains no facts to support them either directly or by inference. 
7

A judgment is clearly erroneous if it applies the wrong legal standard to 

properly found facts.

In applying this standard, we neither reweigh the evidence nor judge the 

credibility of the witnesses. Rather, we consider the evidence that supports 

the judgment and the reasonable inferences to be drawn therefrom. To 

make a determination that a finding or conclusion is clearly erroneous, our 

review of the evidence must leave us with the firm conviction that a 

mistake has been made.

Hartley v. Hartley, 862 N.E.2d 274, 281 (Ind. Ct. App. 2007) (quoting Gregg v. Cooper, 

812 N.E.2d 210, 214-15 (Ind. Ct. App. 2004), trans. denied).

We also observe that the trial court reversed the BZA’s decision after concluding 

that it was not supported by sufficient evidence, and was therefore, arbitrary, capricious 

and not supported by law. When we review a decision of a zoning board, both the trial 

court and this Court are bound by the same standard. Midwest Minerals, Inc. v. Board of 

Zoning Appeals, 880 N.E.2d 1264, 1268 (Ind. Ct. App. 2008), trans. denied. We 

presume the determination of the board, an administrative agency with expertise in 

zoning matters, is correct. Id. We will reverse only if the board’s decision is arbitrary, 

capricious, or an abuse of discretion. Id.

Discussion and Decision

The BZA concedes that, prior to the expansion, Tease Bar’s use of the property to 

provide adult entertainment was a legal-nonconforming use under Kokomo’s Zoning 

Ordinance. Zoning ordinances are tools used to restrict the use of real property. See

Benjamin Crossing Homeowners’ Ass’n, Inc. v. Heide, 961 N.E.2d 35, 40-41 (Ind. Ct.

App. 2012). However,
8

a zoning ordinance is subject to vested rights in the property of persons 

acquired prior to the enactment of a zoning restriction. Such ordinances 

ordinarily may not be applied retroactively so as to disturb existing uses of 

the property. Moreover, the use of land or buildings may be protected from 

existing zoning restrictions if the use is one which existed and was lawful 

when the restrictions became effective and which continued to exist since 

that time. 

Rollett Family Farms, LLC v. Area Plan Com’n of Evansville-Vanderburgh County, 994 

N.E.2d 734, 740 (Ind. Ct. App. 2013) (quoting Town of Avon v. Harvile, 718 N.E.2d 

1194, 1198-99 (Ind. Ct. App. 1999), trans. denied).

Moreover, we observe that the interpretation of a zoning ordinance is a question of 

law that is reviewed de novo. Story Bed & Breakfast LLP v. Brown Cnty. Area Plan 

Comm’n, 819 N.E.2d 55, 65 (Ind. 2004). The ordinary rules of statutory construction 

apply in interpreting the language of a zoning ordinance. Id. Words are to be given their 

plain, ordinary, and usual meaning, unless a contrary purpose is shown by the statute or 

ordinance itself. Hall Drive Ins. Inc. v. City of Fort Wayne, 773 N.E.2d 255, 257 (Ind.

2002). Where possible, every word must be given effect and meaning, and no part is to 

be held meaningless if it can be reconciled with the rest of the ordinance. Id. 

Furthermore, zoning regulations that inhibit the use of real property are in derogation of 

the common law and are strictly construed. Flying J., Inc. v. City of New Haven Bd. of 

Zoning Appeals, 855 N.E.2d 1035, 1039 (Ind. Ct. App. 2006), trans. denied. The courts 

construe a zoning ordinance to favor the free use of land and will not extend restrictions 

by implication. Id.

The dispute in this case centers around Section 8.5 of the Kokomo Zoning 

Ordinance, which states that “[n]o existing structure devoted to a Legal-Nonconforming 
9

use shall be enlarged, expanded, increased, extended, constructed, reconstructed, moved 

or structurally altered unless it . . . [c]omplies with section 8.5(D) for limited and small 

expansions[.]” Appellant’s App. p. 90. Section 8.5(D) provides:

In the case of a Legal-Nonconforming use of structure, the structure may be 

expanded two times only. Each of the two expansions may not exceed 10% 

of the existing floor area. The expansion shall conform to all applicable 

development standards except for landscaping, unless a variance of 

developmental standards is received from the Board of Zoning Appeals. If 

the structure is a commercial or industrial use in a residential district, the 

Planning Director shall assign appropriate parking, landscaping and other 

common development standards for such uses.

Id. 

The Kokomo Zoning Ordinance defines the term “structure” as: “[a]nything 

constructed or erected which requires location on the ground or attachment to something 

having a location on the ground, including but not limited to buildings, sheds, detached 

garages, mobile homes, manufactured homes, above-ground storage tanks, freestanding 

signs and other similar items.” Appellant’s App. p. 92. The Zoning Ordinance also 

defines the term “floor area” to include “[t]he sum of all horizontal surface areas of all 

floors of all roofed portions of a building enclosed by and within the surrounding exterior 

walls or roofs, or to the center line(s) of party walls separating such buildings or portions 

thereof. Floor area of a building shall exclude exterior open balconies and open porches.” 

Id. at 91. 

The trial court concluded that there was no evidence to support the BZA’s 

determination that Tease Bar’s structure was “enlarged, expanded, increased, or 

extended.” Id. at 16. We agree.
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Strictly construing the plain language of Section 8.5(D) and the Ordinance’s 

definitions of the terms “structure” and “floor area” leads us to conclude that Kokomo’s 

Zoning Ordinance limits expansion of the existing building, not separate, walled spaces 

within the same building. Section 8.5(D) limits expansion of a structure to 10% of the 

existing “floor area”, which the Ordinance defines as the “sum of all horizontal surface 

areas of all floors” within the exterior walls of a building. By its own terms, Section 

8.5(D) does not limit expansion of square footage of the non-conforming use within the 

existing structure, it limits expansion of the “structure,” a specifically defined term in the 

Ordinance. 

The BZA attempts to circumvent the plain language of Section 8.5(D) and its 

accompanying definitions by arguing that when Section 8.5(D) is read in conjunction 

with 8.5(C), it is clear that the City of Kokomo intended that a legal-nonconforming use 

located in one section of a building cannot be expanded more than 10% within that 

building. See Appellant’s Br. at 19. Section 8.5(C) states:

Any Legal-Nonconforming use of a structure may be extended throughout 

any parts of a building which were plainly arranged or designed for such 

use at the effective date of this Zoning Ordinance or its subsequent 

amendments, but no such use shall be extended to occupy any land outside 

the building.

Appellant’s App. p. 90. 

When Section 8.5(C) is considered within the context of the Zoning Ordinance, we 

conclude that the City desired to make certain that the 10% expansion allowed for legalnonconforming uses in Section 8.5(D) is confined to the interior of an existing building. 
11

Neither party asserts that Tease Bar expanded its operation to any land outside of the 

building.

There is no question that by removing an interior wall, Tease Bar’s square footage 

increased and it now occupies the entire ground floor of the building. But the increase in 

square footage of the non-conforming use did not expand the existing “structure” or 

“floor area” as those terms are defined in the Ordinance. For all of these reasons, we 

agree with the trial court that there was “no evidence introduced to support the contention 

that the structure was enlarged, expanded, increased, or extended.” See Appellant’s App. 

p. 16 (emphasis in original). For this reason the BZA’s decision was arbitrary and an 

abuse of discretion. We therefore affirm the trial court in all respects.

Affirmed.

RILEY, J., and CRONE, J., concur.