Rush County BZA Decision to Permit Dairy CFO Upheld by Court of Appeals

On January 16, 2018, the Indiana Court of Appeals upheld the Rush County Board of Zoning Appeals' decision to allow Milco Dairy to build and operate a dairy in rural Rush County. This was a highly contested case that pitted the House of Prayer Ministries, led by counsel Kim Ferraro of the Hoosier Environmental Council, against Milco Dairy and the Rush County Board of Zoning Appeals (BZA).  Janzen Ag Law represented Milco Dairy.  

The ruling demonstrates the importance of presenting evidence to the BZA in support of the livestock farm.  The appellate courts give great deference to how the BZA weighs facts, both in support and in opposition to livestock farms.  

In this case, Milco Dairy applied for a special exception to build a dairy on farm property it owned in Rush County. The property was zoned A3 (regulated livestock), but special exceptions are required for CFOs. The Rush County BZA held two lengthy public hearings, at which House of Prayer, a local church and camp, opposed construction of the dairy.

The camp presented lengthy testimony of a physician who believed air emissions from the dairy would cause respiratory problems and manure runoff would pollute a nearby creek used by the camp for swimming. Several members of the camp (and its leader) also testified regarding their fear of what the dairy would do to the area. Kim Ferraro presented written and oral evidence at the hearings regarding the alleged environmental and health issues caused by a CFO, in addition to numerous state and federal legal arguments. Numerous audience members spoke up in favor of the camp and against the dairy. 

Milco Dairy's attorneys (us) presented evidence on behalf of the dairy. The dairy's environmental consultant presented evidence explaining the dairy's design and waste management systems. The Milco Dairy (Niessen) family testified about the reason for the dairy, the increased tax revenue and new employment opportunities the dairy would present, and land application procedures. Various members of the audience spoke up in favor of agriculture in general and the dairy in particular. Milco's attorneys rebutted the camp's legal arguments and explained how the dairy met all the legal zoning requirements under the county ordinance. 

The BZA voted unanimously to grant the special exception, subject to five additional conditions related to manure land application, a shelterbelt of trees, and other restrictions. The BZA made specific written findings supporting its decision. The camp appealed the BZA's decision to a local trial court. The trial court held a hearing and affirmed the BZA's decision. Then the camp appealed the decision to the Indiana Court of Appeals. The Court of Appeals considered all the evidence submitted to the BZA and the BZA's specific written findings, and found the BZA's decision was not contrary to law. 

What should you take from this decision?

  1. It is important to introduce sufficient evidence to support the conclusions the CFO wants the BZA to reach.  
  2. The CFO, its attorneys and consultants, must work with the county officials to ensure its zoning findings are specific, detailed, and written. A BZA's decision is entitled to great deference when reviewed by appellate courts, but the decision must be based upon sufficient evidence in the record.
  3. The evidence presented at contentious county hearings can be litigated for years. We do not get a "do over" to add more evidence in support of the CFO after the hearing. If the decision is appealed, the evidence submitted at a county hearing is the only record on which later appeals will be decided.
  4. No evidence presented by an opponent to a CFO should be ignored. We must address all arguments raised by opponents at the hearing, even if they seem outrageous. 

If you would like to read more, A copy of the opinion (House of Prayer Ministries, Inc. v. Rush County BZA and Milco Dairy Farm, LLC) is available here.