Slaughter, J.
This is a nuisance suit between neighboring property owners in Carmel, Indiana. The plaintiffs, Hari and Saranya Nagireddy, live next door to property owned by defendant, Willow Haven on 106th Street, LLC. Willow Haven is developing its property to house up to ten residents with Alzheimer’s disease and dementia. After Willow Haven obtained a building permit from Carmel, the Nagireddys sued, seeking a declaration that Willow Haven’s proposed use of its property would be a public nuisance because it would violate Carmel’s unified development ordinance. The Nagireddys also sought and obtained a preliminary injunction against further construction of the home, which the court of appeals affirmed.
We granted transfer and now hold the injunction is improper. The Nagireddys did not prove they are likely to win their public-nuisance claim, which alleges that Willow Haven’s proposed land use is illegal because it would violate Carmel’s ordinance. At this preliminary stage, the Nagireddys did not make this showing under the ordinance. We reverse the trial court, vacate the injunction, and remand for further proceedings.
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This case turns on the first element—whether the Nagireddys proved they are likely to succeed on the merits of their underlying claim for public nuisance. “Movants must establish by a preponderance of the evidence a reasonable likelihood of success on the merits of their claim.” Planned Parenthood, 211 N.E.3d at 964 (cleaned up). If the Nagireddys did not prove an element, the trial court abused its discretion in issuing the injunction. Walgreen, 769 N.E.2d at 161.
Willow Haven argues the Nagireddys failed to meet their likelihood-of-success burden for two reasons: first, because they did not exhaust administrative remedies; and second, because they failed to prove by a preponderance of the evidence that Willow Haven’s land use is a public nuisance. Though we disagree with Willow Haven’s first argument, we agree with its second. Thus, we vacate the trial court’s preliminary injunction.
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Under this precedent, the Nagireddys were not required to exhaust administrative remedies before suing Willow Haven. The Nagireddys were not parties to Willow Haven’s building permit application; they had no notice of the application; and they did not know the city had granted the permit until construction began. Requiring the Nagireddys to exhaust remedies before suing would charge homeowners across Indiana with policing their local government’s zoning decisions on pain of forfeiting their right to bring a nuisance action later if one of those decisions happened to affect them adversely.
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We turn next to Willow Haven’s second argument: that the Nagireddys failed to prove they are likely to succeed on their nuisance claim. Here, we agree with Willow Haven. To show they are likely to succeed on their claim, the Nagireddys had to prove by a preponderance of the evidence that Willow Haven’s land use violates the UDO. The Nagireddys showed the UDO does not list Willow Haven’s home as a permitted land use. But Willow Haven presented evidence that its land use is nonetheless legal under the UDO because the UDO yields to state and federal law, which Willow Haven says protects its proposed land use. The Nagireddys did not confront this evidence. Thus, at this stage, the preliminary injunction was improper.
The Nagireddys’ suit alleges a public nuisance—that Willow Haven’s use of its land violates the UDO. A plaintiff alleging a public nuisance must show the defendant’s use of its land is “forbidden by a valid ordinance” and “will work special damages to” the plaintiff’s property…
To determine whether Willow Haven’s use of its land is a public nuisance, we look to the UDO…
The UDO does not list Willow Haven’s home as a permitted land use in the Nagireddys’ neighborhood…A “single-family dwelling” under the UDO includes certain types of “group homes” and “licensed” facilities, which the UDO defines in reference to certain state statutes. Id. § 11.02. Yet Willow Haven admits both that its home is not a “group home” as expressly defined in the applicable UDO, and that its home is not (and will not be) “[a] facility licensed under” any state statute the UDO references…
Undaunted, Willow Haven ignores this limited list and urges us to treat its home as a “housing with services establishment” for residents “diagnosed with Alzheimer’s disease . . . or dementia” under another state statute, Indiana Code section 12-10-5.5-1. This statute does not require a license for a home like Willow Haven’s. Thus, Willow Haven asserts, its home is a permitted “unlicensed group home” under the UDO.
The problem with this argument is that section 12-10-5.5-1 defines “housing with services establishment” for state-law purposes. But the UDO does not incorporate this statute and nowhere mentions a “housing with services establishment” as a permissible “group home” or “facility” within one of Carmel’s residentially zoned districts. Importing this statute into the UDO, as Willow Haven urges, would override the UDO’s plain language and flout our duty to be “mindful of both what [the enactment] does say and what it does not say.” Garner v. Kempf, 93 N.E.3d 1091, 1094 (Ind. 2018) (quoting ESPN, Inc. v. Univ. of Notre Dame Police Dep’t, 62 N.E.3d 1192, 1195 (Ind. 2016) (cleaned up)).
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The Nagireddys proved that Willow Haven’s home is not a listed “group home” under the UDO.
But this case turns on more than what the UDO lists as a group home. The UDO also incorporates mandates imposed by state and federal law. If state or federal law protects Willow Haven’s land use, then the UDO permits it. Willow Haven argued as much before the trial court and, in support, cited the city’s determination that state and federal law requires the city to allow Willow Haven to operate its home. The Nagireddys did not counter this evidence or argue that state and federal law does not protect Willow Haven’s land use. They insist that state and federal law has no bearing at this stage, and that Willow Haven’s land use is illegal unless it gets a variance from the BZA or challenges the UDO’s legality in court. But this is wrong. Because the UDO incorporates state and federal law, both bear directly on whether Willow Haven’s land use is illegal.
The UDO states: “Whenever a provision of any State or federal code or regulation . . . imposes a greater restriction or a higher standard than is required by the [UDO], the provision of the State or federal code or regulation . . . shall apply.” Id. § 1.09(B)(2)(b). Though this provision is not a model of clarity, both Willow Haven and the Nagireddys agree that it operates as a saving clause in recognizing the supremacy of state and federal law. Put differently, this provision ensures that those land uses permitted by state or federal law are also permitted by—even if not expressly listed in—the UDO.
The city determined Willow Haven’s land use complies with the UDO because state and federal law protects housing for the elderly, disabled, and mentally ill…
….To determine whether Willow Haven’s land use is illegal and thus a public nuisance, the trial court needed to decide whether the UDO provisions incorporating state and federal law protect Willow Haven’s land use.
That did not happen here. The trial court did not adjudicate—because the parties did not fully litigate—whether state or federal law requires Carmel to permit Willow Haven’s land use under the UDO. The trial court focused instead on Willow Haven’s failure to obtain a variance from the local BZA. “Because Willow Haven skipped [the variance] process,” the trial court asserted, the court “does not—and cannot—know whether Willow Haven would be entitled to an accommodation” under state or federal law. Thus, the court concluded, because “Willow Haven did not obtain a variance to construct and operate” its home, “and that such construction and operation is [sic] not a permitted use under the UDO” without a variance, the Nagireddys are likely to succeed on their claim.
Though the trial court is right that only the BZA can grant a variance, its order presupposes that Willow Haven needed a variance. Yet a variance is required only for deviations from permitted uses. Put differently, if the ordinance authorizes the use, no variance is necessary. The UDO does not list Willow Haven’s type of home as an authorized use. But that does not answer the remaining question under the UDO, which is whether unspecified provisions of state or federal law nevertheless require the city to allow Willow Haven’s use. Because the trial court did not address that issue, its entry of the preliminary injunction was premature and an abuse of discretion. Walgreen, 769 N.E.2d at 161.
For these reasons, we reverse the trial court, vacate the preliminary injunction, and remand for further proceedings consistent with our opinion.
Rush, C.J., and Massa, Goff, and Molter, JJ., concur.