Persistence Pays Off: Indiana Dairy Wins Zoning Case at Court of Appeals

In the waning hours of 2025, the Indiana Court of Appeals handed down an important victory to an Indiana dairy farm, affirming the zoning approval given by the county board more than 18 months earlier. This appellate win allows the dairy to move forward with a state-of-the-art dairy, which will supply milk for midwestern grocery stores.

The story begins with a packed public hearing at the Rush County Courthouse on April 3, 2024. The board of zoning appeals was considering whether to grant a special exception to allow the Hulsbosch family to build a new 6500-cow dairy in rural Rush County. While the Rush County Zoning Ordinance did not clearly address this size of farm, the zoning executive director had determined that this large dairy would be considered by the BZA like other dairies and would require a special exception because of the animal numbers.

At the public hearing, the dairy presented evidence of the positive impact it would have on the county (and the state). The dairy would purchase inputs from local grain farmers, create roughly 45 new jobs with competitive wages and benefit packages, utilize an anaerobic digester to mitigate odor and generate renewable energy, and meet or exceed all environmental standards. The county’s Comprehensive Plan identified encouraging agricultural development and increasing the tax base as two goals. The dairy would help to meet both of those goals. Further, the zoning district (A3) was specifically created to support CFOs and large livestock farms. The dairy conducted hydrology studies to ensure there was enough water to support the farm.

Rush county courthouse, wikipedia image

A group of remonstrators hired counsel to oppose the dairy. They argued that the zoning ordinance did not allow for a farm of this size, even with a special exception. Remonstrators felt the farm was not in the public interest and could impact property values. Many other citizens spoke at the public hearing—some supported the dairy and spoke highly of the Hulsbosch family’s existing dairy. Others opposed the special exception. The BZA ultimately voted unanimously to approve the special exception for the dairy.

Soon thereafter, the Rush County APC and County Commissioners amended the zoning ordinance to clearly allow larger CFOs with a special exception.

Remonstrators appealed the BZA’s decision to a local trial court. After extensive legal briefing and a several-hour hearing, the court affirmed the BZA’s decision on January 17, 2025. The trial court agreed with the dairy that the remonstrators did not properly establish that they had “standing” to challenge the BZA decision. Standing is a legal doctrine that focuses on whether the complaining party is the right person to invoke the court’s jurisdiction. The trial court held that the remonstrators’ rights were not impacted by the special exception (especially here, where the proposed site already housed a working hog farm). The trial court held the remonstrators did not offer any actual evidence that their property values would decrease. The trial court also held that the remonstrators failed to properly appeal the executive director’s decision to treat the dairy like other smaller CFOs and to allow the dairy to move forward with a special exception request. Finally, the trial court confirmed that the BZA properly approved the special exception under Indiana law (I.C. 36-7-4) and the Rush County Zoning Ordinance. The court explained that the executive director’s and BZA’s interpretation of the zoning ordinance was supported by the ordinance amendments that took place just after the remonstrators’ appeal.

Remonstrators again filed an appeal, this time with the Indiana Court of Appeals. After more legal briefing, the Court of Appeals released its much-awaited decision on December 30, 2025. The Court of Appeals held the remonstrators had standing to bring their appeal, so it continued to consider the substance of their arguments (if a person has no standing, the court can stop right there and not consider any other arguments). Similarly, the Court found the remonstrators had not waived their arguments about the executive director’s decision to allow the dairy to move forward with their request for a special exception.

Finally, the Court came to the meat of the appeal: whether the Rush County BZA had properly granted the dairy’s special exception. Remonstrators had argued that the zoning ordinance simply did not allow a dairy of this size to be built. The Court of Appeals rejected this suggestion, noting that here in Indiana, we interpret ambiguous zoning ordinances to favor the free use of land. Indiana courts prioritize private property rights and construe ordinances in favor of the property owner. The parties disagreed on the meaning of the ordinance language. According to the dairy, the ordinance provided two routes for a CFO to move forward: without a special exception if the site scored a minimum number of points on the county scale and the farm will be under the county animal limit; or with a special exception if the points were inadequate or the site would exceed the ordinance’s animal numbers (without a limit on the number of animals a CFO would house). Remonstrators disagreed and argued that the animal limit was a hard number. The Court of Appeals agreed with the dairy’s interpretation of the ordinance. This aligned with the County Commissioners’ intent—the A3 district was created to encourage agricultural uses of land, including CFOs and larger regulated farms and the Commissioners quickly amended the zoning ordinance to clarify that there was not a limit on the number of animals a CFO may house if it receives a special exception. The Court of Appeals concluded that the dairy had presented sufficient evidence to support the BZA’s grant of the special exception, and ultimately AFFIRMED the special exception.

As attorneys for the Hulsbosch family, we were very appreciative of this outcome and look forward to seeing the dairy farm up and running soon.