Posted by: Patricia Salkin | January 23, 2018

IN Appeals Court Affirms CAFO Permit and Rejects Neighbor’s Allegations of Insufficient Findings, Impermissible ex parte Communications, and RLUIPA/RFRA Violations

This post was authored by Amy Lavine, Esq.

A decision from the Indiana Court of Appeals affirmed the grant of a permit for a concentrated animal feeding operation (CAFO). The court held that the Rush County Board of Zoning Appeals adequately evaluated the public interest as well as impacts on surrounding properties in reaching its decision, and its approval of the CAFO permit was reasonable and within the board’s discretion. The board also applied the correct setbacks, and there was no evidence to support allegations that a board member made improper ex parte communications prior to voting. Finally, the court ruled that the permit approval did not violate RLUIPA, the state RFRA, or the religious freedom provisions in the Indiana Constitution.

The case involved Milco Dairy Farm, which applied for a special exception to construct a CAFO for 1,400 cattle, as well as on-site lagoons to store 17 million gallons of livestock waste. The board held two public meetings, and after hearing both supporting and opposing testimony, it granted the CAFO permit subject to various conditions intended to mitigate the CAFO’s impacts on nearby properties. House of Prayer Ministries, which operated an outdoor summer camp on property located a half-mile downwind from the CAFO site, appealed the permit approval.

In its first challenge, House of Prayer claimed that the board failed to properly consider the public interest in deciding to grant the CAFO permit. The court disagreed, however; while the board had acknowledged in its findings that the CAFO might create “some incidental nuisances,” it also found that the CAFO would provide economic development benefits to the county as a whole through property taxes and job development. The board’s findings also emphasized that CAFOs were a permitted use in the zoning district and that any nuisance impacts from Milco’s facility were typical for any CAFO operation. House of Prayer attempted to rely on a recent case in which the county had imposed increased setbacks on a proposed wind energy facility, but as the court explained, the increased setbacks were within the board’s discretion and its decision in that case did not mandate additional setbacks in this case.

In its second argument, House of Prayer claimed that the board violated a provision in the special exception ordinance that required it to “ascertain that satisfactory provision and arrangement has been made concerning… [g]eneral compatibility with adjacent properties and other property in the district.” The board contended that this provision was satisfied because Milco’s property was located in an A-3 district, where agricultural development was both expected and encouraged. The court agreed, and found that House of Prayer’s argument was essentially that the board should have given more weight to the evidence involving the CAFO’s negative impacts on its property. The board considered that evidence at the public hearings and in its findings, however, and the court remarked that it was House of Prayer, in fact, that “just ignores any evidence that does not support its case.”

Next, House of Prayer argued that it qualified as a “school” and therefore the ordinance required a one mile setback from its property, rather than the half-mile setback approved by the board. While House of Prayer made a fair argument that it was a school because it “provided instruction” to children, the board had the authority to adopt its own reasonable interpretation of the zoning language, and it was reasonable in this case for the board to limit increased setbacks to properties more like “traditional” schools. House of Prayer contended that this narrower interpretation violated its equal protection rights, but the court noted that there were significant differences between schools and uses like House of Prayer’s summer camp that justified a distinction under the ordinance, such as the fact that the camp did not operate for the full school year or have to comply with oversight from the Department of Education.

House of Prayer’s fourth argument alleged that one of the board members engaged in improper ex parte communications with a county commissioner during a short recess taken between the board’s conclusion of its public hearing and its vote on the CAFO application. But the evidence in the record merely showed that when the commissioner attempted to start a conversation, the board member he immediately said that he could not speak with him and sent him to talk to the board’s attorney instead. House of Prayer’s “strident assertions” that some improper communication occurred were not enough, the court emphasized, when there was simply no evidence in the record that the board member actually participated in any communication or even knew what the commissioner wanted to talk about.

Finally, House of Prayer alleged violations of its religious rights under the Religious Land Use and Institutionalized Persons Act, the Indiana Religious Freedom Restoration Act, and various provisions of the Indiana Constitution. The RLUIPA claim failed, the court concluded, because the CAFO permit regulated Milco’s property, not House of Prayer’s summer camp, and the statute only provides a cause of action to plaintiffs that have a “property interest in the regulated land.” House of Prayer tried to argue that “regulated land” should be understood more broadly, but the court refused to ignore the plain language of the statute. Indiana’s RFRA, the court noted, applied more broadly than the federal law and entitled House of Prayer to a fact-finding hearing on the issue of religious exercise. This hearing was provided by the board during its public hearings on the CAFO permit, and the court acknowledged that House of Prayer presented some evidence that approving Milco’s application would burden its religious exercise, since the odors and run-off generated by the CAFO could foreseeably interfere with various aspects of the camp’s operation. The board could have reasonably decided to discount this evidence, however, and instead give more credence to Milco’s assurances that it would employ mitigation measures to limit the CAFO’s nuisance impacts. In other words, the court concluded, the board’s apparent conclusion that there was no substantial burden of religion was reasonable. For the same reasons, House of Prayer’s state constitutional claims alleging religious burdens also failed.

House of Prayer Ministries v Rush County Board of Zoning Appeals, 2018 WL 414862 (Ind. App. 1/16/2018)

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