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.




      Court of Appeals of Indiana | Memorandum Decision 19A-PL-1485| May 13, 2020   Page 2 of 11
      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.

      Court of Appeals of Indiana | Memorandum Decision 19A-PL-1485| May 13, 2020                     Page 3 of 11
                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.


Court of Appeals of Indiana | Memorandum Decision 19A-PL-1485| May 13, 2020   Page 4 of 11
         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.

Court of Appeals of Indiana | Memorandum Decision 19A-PL-1485| May 13, 2020                        Page 5 of 11
                      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


      Court of Appeals of Indiana | Memorandum Decision 19A-PL-1485| May 13, 2020   Page 6 of 11
      “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.”
      Court of Appeals of Indiana | Memorandum Decision 19A-PL-1485| May 13, 2020   Page 7 of 11
              …

              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.

      Court of Appeals of Indiana | Memorandum Decision 19A-PL-1485| May 13, 2020     Page 8 of 11
      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.




      Court of Appeals of Indiana | Memorandum Decision 19A-PL-1485| May 13, 2020   Page 9 of 11
[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.

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1485| May 13, 2020                     Page 10 of 11
       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.

       Court of Appeals of Indiana | Memorandum Decision 19A-PL-1485| May 13, 2020                      Page 11 of 11
