Court of Appeals of Indiana | Memorandum Decision [Case number] | February 27, 2015 Page 1 of 6

MEMORANDUM DECISION

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.

ATTORNEY FOR APPELLANT

Dale W. Arnett

Winchester, Indiana

ATTORNEY FOR APPELLEE

David A. Kruse

Kruse & Kruse P.C.

Auburn, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Stan Kruse,

Appellant-Defendant,

v.

DeKalb County Plan 

Commission,

Appellee-Plaintiff

February 27, 2015

Court of Appeals Case No.

17A03-1406-PL-227

Appeal from the DeKalb Circuit 

Court.

The Honorable Kirk D. Carpenter, 

Judge.

Cause No. 17C01-0512-PL-42

Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision [Case number] | February 27, 2015 Page 2 of 6

[1] Stanley Kruse appeals the trial court’s order granting summary judgment in 

favor of the DeKalb County Plan Commission. The trial court granted the 

Commission’s request for an injunction against Kruse, who the trial court found 

had violated certain zoning ordinances when he constructed a residence 

without the required approval. Finding no error, we affirm.

Facts

[2] In 1964, DeKalb County enacted a Master Zoning Plan, which is regulated and 

enforced by a series of ordinances. Among other things, the ordinances provide 

that only one residence may be located on each lot. Appellant’s App. p. 12. To 

build a second residence on a lot, it must be subdivided. The nature of a parcel 

of land in 1964, when the Master Zoning Plan was enacted, determines whether 

it is a single lot, also called a “base tract.” If “the Lot was a single parcel in 

single ownership” in 1964, then the lot is considered to be a single “base tract” 

today. Id. The Master Zoning Plan also requires that no structure may be built 

in DeKalb County without first obtaining an Improvement Location Permit. 

The Master Zoning Plan includes a farm exemption to the above requirements: 

“Land, farm houses, farm barns, farm outbuildings or other buildings, 

structures or erections which are adapted, by reason of nature and 

area, for use for agricultural purposes as a primary means of 

livelihood, while so used, shall not be affected by restrictions or 

regulations of this ordinance.”

Id. at 24-25 (quoting Zoning Ordinance Section 11(O)).

[3] In 1964, Howard and Roberta Smith owned approximately forty acres of land 

in DeKalb County (the Base Tract). At some point in time, Howard Grimm 
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obtained title to this land following a foreclosure action. On July 13, 1990, 

Grimm sold a portion of the Base Tract. Specifically, he transferred title to a 

mobile home, plus 1.24 acres on which the mobile home was located (the 

Homestead Tract), to Rick and Sheryl Truelove. Between 1964 and 1993, 

various acreage was added and transferred away from the original Base Tract of 

forty acres, such that the parcel of land totaled 59.2 acres in 1993.

[4] On April 14, 1993, Kruse bought the 59.2-acre tract of land from Grimm’s 

estate. A recital on the deed required him to continue to use the land as part of 

the conservation reserve program (CRP): “[t]he above-described real estate is 

subject to a [CRP] contract with the [Agricultural Stabilization and 

Conservation Service] office of the U.S. [Department of Agriculture] and the 

Grantee by receipt of this Deed agrees to continue this governmental program 

for its duration.” Appellant’s App. p. 126. The United States Department of 

Agriculture [USDA] defines the CRP as follows:

The Conservation Reserve Program (CRP) is a land conservation 

program administered by the Farm Service Agency (FSA). In 

exchange for a yearly rental payment, farmers enrolled in the program 

agree to remove environmentally sensitive land from agricultural production

and plant species that will improve environmental health and quality. 

Contracts for land enrolled in CRP are 10-15 years in length. The longterm goal of the program is to re-establish valuable land cover to help 

improve water quality, prevent soil erosion, and reduce loss of wildlife 

habitat.

U.S.D.A., Conservation Reserve Program, available at

http://www.fsa.usda.gov/FSA/webapp?area=home&subject=copr&topic=crp

(last visited January 30, 2015) (emphasis added).
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[5] In 1996, Kruse built a residence on his land. He did not obtain an 

Improvement Location Permit and did not apply for or obtain subdivision 

approval. And because the residence on the Homestead Tract is considered to 

be a residence on the Base Tract, Kruse’s 1996 residence constitutes an 

unauthorized second residence on the Base Tract.

[6] In 2002 and 2003, the Commission sent letters to Kruse notifying him that he 

was in violation of local ordinances. He did not appeal those findings of 

violations to the Board of Zoning Appeals. On December 22, 2005, the 

Commission filed a complaint against Kruse based upon the ordinance 

violations. Over the next eight years, Kruse repeatedly told the Commission 

that he would apply for a simple division of land, which would bring his 

property in compliance with the ordinances, and the Commission repeatedly 

asked and received continuances from the trial court to afford Kruse the time to 

do so. Kruse never applied for a division of land.

[7] On November 13, 2013, the Commission filed a motion for summary 

judgment, which Kruse opposed. Following briefing and a hearing, on June 3, 

2014, the trial court granted summary judgment in favor of the Commission. 

Among other things, the trial court ordered as follows: (1) Kruse is to cease use 

of his residence and is ordered to remove the residence from his property; 

(2) Kruse is enjoined from placing the residence on other property in DeKalb 

County and from placing another residence on his own property without proper 

approval from zoning authorities; and (3) Kruse is to pay a fine of $2,500. 

Kruse now appeals.
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Discussion and Decision

[8] Our standard of review on summary judgment is well established:

We review summary judgment de novo, applying the same standard as 

the trial court: “Drawing all reasonable inferences in favor of . . . the 

non-moving parties, summary judgment is appropriate ‘if the 

designated evidentiary matter shows that there is no genuine issue as 

to any material fact and that the moving party is entitled to judgment 

as a matter of law.’ ” Williams v. Tharp, 914 N.E.2d 756, 761 (Ind.

2009) (quoting T.R. 56(C)). “A fact is ‘material’ if its resolution would 

affect the outcome of the case, and an issue is ‘genuine’ if a trier of fact 

is required to resolve the parties’ differing accounts of the truth, or if 

the undisputed material facts support conflicting reasonable 

inferences.” Id. (internal citations omitted).

The initial burden is on the summary-judgment movant to 

“demonstrate [ ] the absence of any genuine issue of fact as to a 

determinative issue,” at which point the burden shifts to the nonmovant to “come forward with contrary evidence” showing an issue 

for the trier of fact. Id. at 761–62 (internal quotation marks and 

substitution omitted). And “[a]lthough the non-moving party has the 

burden on appeal of persuading us that the grant of summary 

judgment was erroneous, we carefully assess the trial court’s decision 

to ensure that he was not improperly denied his day in 

court.” McSwane v. Bloomington Hosp. & Healthcare Sys., 916 N.E.2d 

906, 909–10 (Ind. 2009) (internal quotation marks omitted).

Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).

[9] On appeal, Kruse does not deny that when he built his residence in 1996, it 

constituted a second residence on the Base Tract. He also does not deny that he 

has not applied for a subdivision of the land or for an Improvement Location 

Permit. His sole argument on appeal is that the farm exemption applies to his 

land, such that he was not required to comply with the relevant ordinances.
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[10] As noted above, Zoning Ordinance Section 11(O) establishes that the farm 

exemption applies to land that is used “for agricultural purposes as a primary 

means of livelihood, while so used[.]” Appellant’s App. p. 24-25 (emphasis 

added). Initially, we note that Kruse built his residence in 1996. There is no 

evidence in the record regarding his use of the land until 2011, when he attests 

that he retired as an electrician and his primary means of livelihood became

agriculture. This evidence does not create an issue of fact regarding the use of 

the land for agricultural purposes between 1996 and 2011.

[11] In any event, however, it is undisputed that Kruse purchased this land subject 

to a condition in the deed that he continue participating with the CRP. As 

noted by the trial court, “Land in a conservation reserve program can not, by 

definition, be farmed. And, therefore can not be farm exempt.” Id. at 25. We 

agree. As noted above, the USDA explicitly notes that landowners who 

participate in the CRP agree to remove the land from agricultural production. 

Because Kruse’s land is subject to the CRP, it cannot possibly be used for 

agricultural purposes unless and until the CRP contract expires. As such, there 

is no possible way for the farm exemption to apply. We find that the trial court 

did not err in granting summary judgment in the Commission’s favor.

[12] The judgment of the trial court is affirmed.

Vaidik, C.J., and Riley, J., concur.