The opinion
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any May 13 2020, 8:26 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEES
Kim E. Ferraro Todd J. Janzen
Hoosier Environmental Council Brianna J. Schroeder
Gary, Indiana Janzen Agricultural Law LLC
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Steven and Kathy Chambers, May 13, 2020
Stephen and Elizabeth Driscoll, Court of Appeals Case No.
and Perry and Tonya Evans, 19A-PL-1485
Appellants-Intervenors, Appeal from the Grant Circuit
Court
v. The Honorable Mark E. Spitzer,
Judge
Delaware-Muncie Metropolitan Trial Court Cause No.
Board of Zoning Appeals, 27C01-1811-PL-49
Respondent,
and
Rhett and Alana Light,
Appellees-Petitioners
Court of Appeals of Indiana | Memorandum Decision 19A-PL-1485| May 13, 2020 Page 1 of 11
Crone, Judge.
Case Summary
[1] Rhett and Alana Light obtained a permit from the Delaware County Building
Commissioner to build several hog barns on their property. Steven and Kathy
Chambers, Stephen and Elizabeth Driscoll, and Perry and Tonya Evans
(Intervenors), who live near the Lights’ property, asked the Delaware-Muncie
Metropolitan Board of Zoning Appeals (the BZA) to review the Building
Commissioner’s decision to issue the permit. After a hearing, the BZA issued a
decision voiding the permit. The Lights petitioned for judicial review of the
BZA’s decision, which the trial court reversed. On appeal, Intervenors argue
that the trial court erred. We disagree and therefore affirm.
Facts and Procedural History
[2] The relevant facts are undisputed. In March 2018, the Lights applied for a
permit from the Building Commissioner to build four hog barns on their
property, which is located in the “F Farming Zone” under the Delaware
County Comprehensive Zoning Ordinance. The Building Commissioner
determined that he had “no cause to not approve the project for zoning
compliance under the ordinance”; that the building plans were “in compliance
with current Indiana Building Code”; and that the Lights had received the
required state and local government permits for a confined feeding operation,
erosion control, a driveway, and drainage. Appellants’ App. Vol. 3 at 100.
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Accordingly, the Building Commissioner issued the Lights a building permit in
May 2018.
[3] Intervenors asked the BZA to review the Building Commissioner’s decision to
issue the permit. The BZA held a hearing and issued a decision voiding the
permit. The Lights petitioned for judicial review of the BZA’s decision and
were granted a change of venue. After a hearing, the trial court issued an order
containing the following relevant findings and conclusions, which provide
additional background as well as context for our discussion below:
[The Lights’ proposed hog farm] would be configured as a
“concentrated animal feeding operation” (hereinafter “CAFO”)
as such farms are classified under the Indiana Confined Feeding
Control Law (Ind. Code § 13-18-10-1 et seq.) and the Confined
Feeding Operation regulation (327 I.A.C. § 19).[ 1] The proposed
operation would house and raise up to 10,560 wean-to-finish
pigs, raised in two groups per year.
Article XII of the Delaware County Comprehensive Zoning
Ordinance (“the Zoning Ordinance”) defines permitted uses
within the “F Farming Zone” in relevant part as follows:
For the purpose of this Ordinance, farming shall
mean the carrying out of an agricultural use or uses,
as permitted in this Ordinance, on a tract of land
having a minimum area of five (5) acres where fifty
(50) percent or more of the land is under cultivation
or used for dairying, pasturage, apiculture,
1
Indiana Code Section 13-11-2-40 defines “confined feeding operation” in pertinent part as any confined
feeding of at least six hundred swine.
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horticulture, viticulture, animal and poultry
husbandry, forestry or similar farming activities.
No building, structure or land shall be used or
occupied and no building or structure shall hereafter
be erected, structurally altered, enlarged or
maintained except for the following uses:
1. Single family dwellings.
2. Field crops; dairies; tree crops;
flower gardening; nurseries; orchards;
farms for the hatching, raising and sale
of chickens, hogs, cattle, turkeys or
other animals; horse farm; sheep
raising; breed, boarding or sale of dogs;
aquariums. All such animal uses and
buildings or premises shall be at least
two hundred (200) feet from a dwelling
(other than a farm dwelling), school,
church, hospital or institution for
human care.
3. Barns and similar farming
buildings.
The Zoning Ordinance became effective December 11, 1973.
[Both sides agree that the Farming Zone provision was added in
1993.] There have been no further amendments related to the
raising of hogs or other animals, and nothing in the ordinance
specifically addresses confined or concentrated animal feeding
operations. Delaware County has at least five other existing
confined feeding operations which were initiated since the
passage of the Zoning Ordinance, beginning in 1974. Those are
considered by the county zoning department as permitted uses.
A prior CAFO was constructed and permitted as recently as
2017.
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In 1997, the Delaware County Subdivision Ordinance was
amended to require certain restrictive covenants for proposed
subdivisions located in the F Farming Zone or abutting land
classified in the F Farming Zone. Those covenants must contain
the following acknowledgement:
First, acknowledges and agrees that the (insert name
of addition) is in or adjacent to an area zoned for
agricultural uses, high [sic] uses include, but are not
limited to, production of crops, animal husbandry,
land application of animal waste, the raising, breeding
and sale of livestock and poultry, including confinement
feeding operations, use of farm machinery, and the
sale of farm products.
Emphasis added.
In February of 2018, the [Delaware County] Commissioners had
provided a “hold” on building permits for confined feeding
operations, which “hold” was lifted on April 2, 2018.[ 2]
Thereafter, after the Lights secured approval from the County
Surveyor and County Engineer, the Delaware County Building
Commissioner approved the Building Permit on May 17, 2018.
The permit was approved three days after the introduction of
Ordinance No. 2018-004, entitled “An Ordinance Establishing a
Moratorium On Certain Uses Within Farming Zones in
Delaware County, Indiana” (“the Moratorium Ordinance”).
That Ordinance was passed on May 21, 2018, but did not apply
to the Light permits which had previously been granted.
Notably, the Moratorium Ordinance provided in relevant part:
2
In a footnote, the trial court observed that the “hold” appeared to be a nullity because the proper procedures
for amending or partially repealing the Zoning Ordinance were not followed. Appealed Order at 5 n.1.
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WHEREAS, Article XII of the Delaware County
Comprehensive Zoning Ordinance currently
provides that an animal feeding operation of any
size is considered a permitted use in any F Farming
Zone and a building permit may be issued provided
the minimum requirements applicable to all farming
uses are met; ….
The Ordinance was passed unanimously by the Board of
Commissioners.
Appealed Order at 4-6 (record citation and footnote omitted).
[4] The BZA had voided the Lights’ building permit based on its determination
that “the F Farming Zone does not recognize industrial agricultural uses, such
as the [Lights’] CAFO that will generate as much urine and feces as a small
town.” Id. at 6. But the trial court noted that the Zoning Ordinance specifically
permits “animal and poultry husbandry,” as well as the “raising and sale” of
hogs and the erection of “[b]arns and similar farming buildings” in the F
Farming Zone. Id. at 8 (emphases omitted). The court concluded that “[t]his
language clearly indicates that hog raising operation[s], in barns, are a
permitted use. The clear language of the ordinance itself is sufficient to answer
the question presented, and the inquiry could stop there.” Id.
[5] Nevertheless, the court went on to observe that “there were other confined
feeding operations permitted in Delaware County following the passage of the
zoning ordinance” and that “the language of the Moratorium Ordinance”
reflected the Commissioners’ understanding that their Zoning Ordinance
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“would allow such a use.… The 1997 Amendment to the Subdivision
Ordinance, requiring covenants to acknowledge the possibility of ‘confinement
feeding operations’ adjacent to subdivisions if they were located near the F
Farming Zone, indicated a similar understanding.” Id. at 8-9.
[6] Moreover, the trial court concluded that
[t]he BZA’s findings that the Lights’ operation is somehow
distinguishable from other agricultural uses because it is an
“industrial agricultural” use that will “generate as much urine
and feces as a small town” [are] not in any way supported by the
language of the Ordinance. Setting aside the difficulty of a
standard which would measure waste output against a “small
town”, the Ordinance does not establish such a standard, nor
does it draw a distinction or provide a definition for “industrial
agricultural” uses as opposed to other agricultural uses. It simply
provides for agricultural uses, which it describes to include the
raising of hogs in barns. Being bound to strictly construe zoning
ordinances in favor of the property owner, the Court concludes
that such a construction of the Zoning Ordinance here would
permit the use described by the Lights in their permit application.
….
Here, Delaware County could have excluded [CAFOs] from the
F Farming District, or placed other restrictions on them distinct
from more traditional farming operations. To the date of the
Lights’ permit application, it neglected to do so. Consistent with
the existing Zoning Ordinance, several prior confined feeding
operations were located and permitted in Delaware County.
Delaware County may, by ordinance amendment, restrict
confined feeding operations in some way in the future. It may
not do so by changing its interpretation of the existing Zoning
Ordinance. Such disparate treatment of similar situations is the
essence of “arbitrary and capricious.”
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…
For all the foregoing reasons, the BZA’s decision is reversed and
the Building Commissioner/Zoning Administrator’s decision to
issue the Building Permit to the Lights is reinstated.
Id. at 9-11 (footnote and citation omitted). Intervenors now appeal.
Discussion and Decision
[7] In an appeal involving an administrative agency’s decision, our standard of
review is governed by the Administrative Orders and Procedures Act, and we
are bound by the same standard of review as the trial court. Walker v. State Bd.
of Dentistry, 5 N.E.3d 445, 448 (Ind. Ct. App. 2014), trans. denied. “We do not
try the case de novo and do not substitute our judgment for that of the agency.”
Id.
We will reverse the administrative decision only if it is: (1)
arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law; (2) contrary to a constitutional right,
power, privilege, or immunity; (3) in excess of statutory
jurisdiction, authority, or limitations, or short of statutory right;
(4) without observance of procedure required by law; or (5)
unsupported by substantial evidence.
Id. (citing Ind. Code § 4-21.5-5-14). “The burden of demonstrating the
invalidity of the agency action is on the party who asserts the invalidity.” Id.
[8] The crux of this appeal is the BZA’s interpretation of the Zoning Ordinance.
“Construction of a zoning ordinance is a question of law.” Essroc Cement Corp.
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v. Clark Cty. Bd. of Zoning App., 122 N.E.3d 881, 891 (Ind. Ct. App. 2019)
(citation omitted), trans. denied. “Regulations that impair the use of real
property are strictly construed because they are in derogation of the common
law.” Id. (citation and quotation marks omitted). “We therefore will not
extend zoning regulations by implication.” Id.
[9] “When we must construe a zoning ordinance, we apply the same rules of
construction that we use on statutes.” Id. “[T]he express language of the
ordinance controls our interpretation and our goal is to determine, give effect
to, and implement the intent of the enacting body.” Id. (quoting Hoosier Outdoor
Advert. Corp. v. RBL Mgmt., Inc., 844 N.E.2d 157, 163 (Ind. Ct. App. 2006),
trans. denied). The plain language of the ordinance is the best evidence of the
drafters’ intent. Schwab v. Morrissey, 83 N.E.3d 88, 92 (Ind. Ct. App. 2017).
“When an ordinance is subject to different interpretations, the interpretation
chosen by the administrative agency charged with the duty of enforcing the
ordinance is entitled to great weight, unless that interpretation is inconsistent
with the ordinance itself.” Essroc Cement, 122 N.E.3d at 891 (quoting Hoosier
Outdoor, 844 N.E.2d at 163). An agency’s incorrect interpretation of an
ordinance is entitled to no weight. See Pierce v. State Dep’t of Corr., 885 N.E.2d
77, 89 (Ind. Ct. App. 2008) (regarding statutes). If an agency misconstrues an
ordinance, there is no reasonable basis for the agency’s ultimate action, and the
reviewing court is required to reverse the agency’s action as being arbitrary and
capricious. Id.
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[10] “Courts may not interpret a statute or an ordinance that is plain and
unambiguous on its face.” Metro. Dev. Comm’n of Marion Cty. v. Villages, Inc.,
464 N.E.2d 367, 369 (Ind. Ct. App. 1984), cert. denied (1985). Where the
relevant language “is clear and plain, there is no room for construction and a
court has no power to resort to construction for the purpose of limiting or
extending its operation.” Madison Area Educ. Special Servs. Unit v. Ind. Educ.
Empl. Relations Bd., 483 N.E.2d 1083, 1086 (Ind. Ct. App. 1985).
[11] Here, the trial court concluded that the Zoning Ordinance clearly permits the
Lights to use their property to raise hogs in the barns that were approved by the
Building Commissioner. We agree.3 Intervenors observe that “CAFOs are not
the same as traditional farms in terms of their industrial nature, scale and
impact” and “are subject to federal and state regulation that traditional farms
are not[.]” Appellants’ Br. at 13. But the Zoning Ordinance sets no limits on
the scale of permitted uses in the F Farming Zone and has no bearing on federal
and state regulations. 4 Intervenors insist that the Zoning Ordinance is
3
Intervenors seize on the trial court’s use of the phrase “hog raising operation” and complain that “nowhere
does the term ‘operation’ appear in the Farm Zone’s text, and that term adds unique meaning not intended
by the drafters.” Appellants’ Br. at 15 (footnote omitted). Intervenors’ concerns are overstated: “hog raising
operation” is simply another way of saying “raising hogs.”
4
Intervenors note that the Zoning Ordinance’s 200-foot minimum setback requirement is inconsistent with
the Indiana Administrative Code’s 400-foot setback requirement for CAFOs. See 327 IAC 19-12-3.
Obviously, the latter would take precedence over the former with respect to CAFOs.
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ambiguous because it does not mention CAFOs, but we must decline their
invitation to find an ambiguity where none exists. 5
[12] At any point before the Lights applied for a building permit, the County
Commissioners could have amended the Zoning Ordinance to limit the scale of
permitted uses in the F Farming Zone, or they could have enacted a provision
specifically regulating CAFOs, but they did neither of those things. 6 As written,
the plain language of the Zoning Ordinance in effect at the time the building
permit was issued unambiguously permits the Lights to raise any number of
hogs (subject to state and federal limitations) in the barns they want to build on
their property, and the BZA acted arbitrarily and capriciously in voiding their
building permit. We therefore affirm the trial court’s reversal of the BZA’s
decision.
[13] Affirmed.
May, J., and Pyle, J., concur.
5
Because no ambiguity exists, we are unpersuaded by Intervenors’ reliance on T.W. Thom Construction, Inc.,
v. City of Jeffersonville, 721 N.E.2d 319 (Ind. Ct. App. 1999), and Day v. Ryan, 560 N.E.2d 77 (Ind. Ct. App.
1990).
6
According to Intervenors, the Zoning Ordinance has since been amended to specifically regulate CAFOs.
To the extent Intervenors argue that the County Commissioners either did not contemplate or intentionally
excluded CAFOs when they drafted the Farming Zone provision of the Zoning Ordinance in 1993, the 1997
amendment of the Subdivision Ordinance strongly suggests otherwise.
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