Zoning: The "You Can't Do That" Edition

Rural county governments are facing a multitude of challenges these days - how to increase economic growth, encourage people to move (or stay) there, improve schools, create jobs, cut costs, etc. Recently we've seen a few counties consider blocking livestock development in a supposed attempt to help their community. But barring the construction of of livestock farms in rural areas often is legally suspect. Here are a few things to watch out for: 

Moratorium. Whether the government calls it a ban or a hold or a moratorium, if the effect is to ban a certain type of development, it is a moratorium. Indiana courts have held that a moratorium is the same thing as a zoning ordinance amendment, so it must be enacted in accordance with Indiana zoning statutes. A county cannot simply enact a moratorium overnight. State law requires notice, publication of the proposed amendment, public hearings, and input from the county commissioners and the area plan commission. A moratorium, even if passed in accordance with state laws, must be reasonable. An open-ended ban with no time limits would likely be considered unreasonable and unenforceable.

Ignoring County Ordinances. Counties set their own zoning ordinances, subject to the state zoning statutes (IC 36-7-4-600). Because it can take a significant amount of time and money to change county ordinances, some counties put off amendments to their code and later wish they hadn't. But an application for a special exception, variance, or building permit must be considered under the law as it exists on the date of the application. Counties cannot change the rules halfway into the game. If a county dislikes its own rules, its remedy is to change those rules for the next time around, not to ignore the rules. 

Creating a Moving Target. Another tactic is to create a moving target for a livestock operation who wants to build -- consistently changing what is required for an application or putting off a decision on an operation. As we've said, zoning ordinances must comply with state law. They also must take due process and property rights into consideration. Eternal delays, continued public hearings, vague statements from county officials, and moving targets are all tactics which may run afoul of the state or federal constitution. 

Let us know if you see any of these or other questionable procedures used by a county near you. We believe local governments want to do the right thing, but sometimes are unaware of the requirements related to their zoning ordinances.