FOR PUBLICATION


ATTORNEY FOR APPELLANTS:      ATTORNEYS FOR APPELLEE:
LESLIE C. SHIVELY             TODD J. JANZEN
Evansville, Indiana           BRIANNA J. SCHROEDER
                              Plews Shadley Racher & Braun, LLP
                              Indianapolis, Indiana

                              AMICUS BRIEF

                              Indiana Agricultural Law Foundation, Inc.
                              JUSTIN SCHNEIDER
                              MARK THORNBURG
                              SARA MACLAUGHLIN
                              Indianapolis, Indiana

                              Indiana Dairy Producers
                              GREGORY A. NEIBARGER
                              Bingham Greenebaum Doll, LLP
                              Indianapolis, Indiana

                              Indiana Soybean Alliance, Inc.
                              Indiana Corn Growers Association
                              DANIEL P. McINERNY
                              Bose McKinney & Evans, LLP
                              Indianapolis, Indiana

                              Indiana Pork Advocacy Coalition
                              JOSHUA TRENARY
                              Indianapolis, Indiana

                              Indiana State Poultry Association
                              JOSEPH A. MILLER
                              Seymour, Indiana


                                                          Apr 30 2013, 9:24 am
                         IN THE
               COURT OF APPEALS OF INDIANA
GLENN PARKER, As Trustee Under the                )
Revocable Declaration of Trust Agreement of       )
Glenn Parker, GLENN PARKER, Individually          )
and PHYLLIS C. PARKER, Individually,              )
                                                  )
       Appellants-Plaintiffs,                     )
                                                  )
              vs.                                 )     No. 26A05-1209-PL-450
                                                  )
OBERT’S LEGACY DAIRY, LLC,                        )
                                                  )
       Appellee-Defenfdant.                       )


                    APPEAL FROM THE GIBSON SUPERIOR COURT
                         The Honorable Earl G. Penrod, Judge
                            Cause No. 26D01-1106-PL-14



                                       April 30, 2013

                                OPINION - FOR PUBLICATION

RILEY, Judge


                                STATEMENT OF THE CASE

       Appellants-Plaintiffs, Glenn Parker (Glenn), individually and as Trustee under the

Revocable Declaration of Trust Agreement of Glenn Parker, and Phyllis C. Parker

(Phyllis) (collectively, the Parkers), appeal the trial court’s grant of summary judgment in

favor of Obert Legacy Dairy, LLC (the Dairy).

       We affirm.

                                          ISSUE




                                              2
      The Parkers raise one issue on appeal which we restate as follows: Whether the

Indiana Right to Farm Act bars their nuisance claim against the Dairy.

                        FACTS AND PROCEDURAL HISTORY

      The Parkers own approximately 68 acres of land in Fort Branch, Gibson County,

Indiana.    In 1965, the property was given to them by Glenn’s mother, who had acquired

it in 1934. In 1972, Glenn built a house on the property where the Parkers have resided

ever since. Outbuildings and grain silos are also located on the property. Although

employed by Ball Corporation in Muncie, Indiana for many years, Glenn “hobby farmed”

the land surrounding his home until 2005.         (Appellants’ Amended App. p. 30).

Thereafter, Glenn leased the farmland to Ron Miley (Miley), who grows corn and

soybeans.

      The Obert family, members of whom own either the Dairy or Obert’s Farm

Property, Inc. (the Obert Farm), have engaged in farming in Gibson County since 1830.

The Obert family’s property consists of approximately 157 acres adjacent to the Parkers’

property.   Of these 157 acres, two 45 acre-tracts comprise the Obert Farm, which

represents the family’s original dairy farm and includes a residence, silos, other dairy

farm structures, and approximately 100 cows. The Dairy operates on the remaining 67

acre-tract, which the Oberts acquired “sometime after 1965,” and was originally used as

cropland to support the dairy. (Appellants’ Amended App. p. 77-A).

      In 2006, members of the Obert family formed the Dairy for tax and estate planning

purposes and sought to expand operations by increasing the number of cows and adding

                                            3
new facilities and equipment. After examining possible locations, the Oberts decided to

utilize part of the 67 acre-tract for the expanded dairy operation, which would include a

concentrated feeding operation. In July or August 2009, the Oberts sent notice of their

intentions to their neighbors, including the Parkers.

        On September 18, 2009, the Dairy applied to the Indiana Department of

Environmental Management (IDEM) for a National Pollutant Discharge Elimination

System, Concentrated Feeding Operation (NPDES CAFO)1 general permit for a

maximum of 900 dairy cows and 80 dairy calves. In October 2009, Glenn sent a letter to

IDEM in protest. He stressed that although he supported family farming, in contrast, the

Dairy sought to become a “factory-like ‘mega-farm.’” (Appellants’ Amended App. p.

116). As his home was the closest residence to the Dairy’s planned facilities, due to the

prevailing wind patterns, Glenn alleged that the increased odors from the Dairy’s

proposed confined feeding operation would be “first and foremost concentrated on [his]

home.” (Appellants’ Amended App. p. 115). Glenn also speculated that the Oberts

deliberately placed the proposed operation away from their residence to avoid the

potential increase in odors. On March 9, 2010, IDEM granted the Dairy’s application,




1
  Although the Parkers refer to the Dairy’s operation as a confined feeding operation, the IDEM permit
licenses the Dairy to conduct a concentrated feeding operation. As we noted in Jennings Water, Inc. v.
Office of Environmental Adjudication, 909 N.E.2d 1020, 1022 n.1 (Ind. Ct. App. 2009), trans. denied,
there is a statutory distinction between a confined feeding operation and a concentrated feeding operation,
“but each features the confined feeding of certain animals.” Given the language of the permit, we use the
term concentrated feeding operation throughout this opinion.

                                                    4
issuing a five-year NPDES CAFO permit. Currently, the Dairy houses approximately

760 dairy cows.

      On June 28, 2011, the Parkers filed their complaint for nuisance, which was

amended on May 14, 2012. The Parkers alleged that the Dairy’s concentrated feeding

operation produced offensive odors, devalued their property, and caused them

“discomfort, inconvenience, and personal injury.” (Appellants’ Amended App. p. 106).

On August 22, 2011, the Dairy filed its answer asserting the Indiana Right to Farm Act,

Ind. Code § 32-30-6-9, as an affirmative defense.

      On April 25, 2012, the Dairy filed its motion for summary judgment. On June 19,

2012, the trial court held a hearing on the motion. On August 27, 2012, the trial court

granted summary judgment to the Dairy. In pertinent part, the trial court concluded that

the Act barred the Parkers’ nuisance claim:

             To avail itself of the protections of the [Act], [the Dairy] must
      demonstrate that it is an agricultural operation in continuous operation on
      the locality for more than one year, there have been changed conditions in
      the vicinity of the locality and there has been no significant change in the
      type of operation.

             [T]he evidence demonstrates that Obert Farms is an agricultural
      operation as defined by [I.C. §] 32-30-6-1 as the Obert family has been
      operating a dairy farm which has included producing crops, livestock and
      milk.

              The evidence also shows that Obert Farms has been in continuous
      operation for many, many years (well more than one year) on the locality.
      Contrary to the [Parkers’] assertion, locality as defined in I.C. § 32-60-6-3
      is appropriately understood to mean all of the facilities and land used in the
      entire agricultural operation. The [c]ourt concludes that it is of no moment
      that the Obert [d]airy farm operation consists of more than one tract of land
      with separately described properties because it is clear that all facilities and
                                            5
      the various tracts of land, including the 67 acres on which the expansion is
      located, are part of the same agricultural operation which is being
      conducted on that locality.

              Further, the evidence demonstrates that the conditions have changed
      in the vicinity of the locality in that what was once a fully agricultural area
      now contains several non-farm residences, including that of the Parkers.
      Clearly, this is not a case in which the Parkers moved to the nuisance as
      that expression is typically understood, but it is equally clear that the
      vicinity of the locality has changed over the years in that non-agricultural
      land uses (non-farming residences) are now extending into this agricultural
      area. […]. […] the [c]ourt concludes that the Act is applicable when non-
      agricultural land uses such as non-farming residences extend into
      agricultural areas, whether as a result of ‘non-farmers’ moving into the area
      or, as in the present case, when ‘erstwhile farmers’ now utilize the land as a
      non-farming residence after ceasing farm operations. In either case, the
      non-agricultural land uses (non-farming residences) now extend into
      agricultural areas.

              Further, the evidence shows that there has been no significant
      change in the type of operation of the Obert [d]airy [f]arm operation.
      While the court concedes that whether there has been a significant change
      in the type of operation initially sounds as though it would be a question of
      fact for the jury, the court finds the evidence is undisputed in that any
      changes to the operation are not significant changes as that term is defined
      by law.

(Appellants’ Amended App. pp. 12-14).

      The Parkers now appeal. Additional facts will be provided as necessary.

                            DISCUSSION AND DECISION

      Summary judgment is appropriate only when there are no genuine issues of

material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial

Rule 56(C). A fact is material if its resolution would affect the outcome of the case.

Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009). An issue is genuine if a trier of fact


                                            6
is required to resolve the parties’ differing accounts of the truth or if the undisputed facts

support conflicting reasonable inferences. Id.

       In reviewing a trial court’s ruling on summary judgment, this court stands in the

shoes of the trial court, applying the same standards in deciding whether to affirm or

reverse summary judgment. Ogden v. Robertson, 962 N.E.2d 134, 140 (Ind. Ct. App.

2012), trans. denied. Thus, on appeal, we must determine whether there is a genuine

issue of material fact and whether the trial court has correctly applied the law. Id. In

doing so, we consider all of the designated evidence in the light most favorable to the

non-moving party. Id.

       The party appealing the grant of summary judgment has the burden of persuading

this court that the trial court’s ruling was improper. New Albany Historic Preservation

Comm’n v. Bradford Realty, Inc., 965 N.E.2d 79, 84 (Ind. Ct. App. 2012). When the

defendant is the moving party, the defendant must show that the undisputed facts negate

at least one element of the plaintiffs’ cause of action or that the defendant has a factually

unchallenged affirmative defense that bars the plaintiffs’ claim. Id. Accordingly, the

grant of summary judgment must be reversed if the record discloses an incorrect

application of the law to the facts. Id.

       Here, the trial court issued findings of fact and conclusions of law in support of its

grant of summary judgment. Its findings on summary judgment are not binding on

appeal. Myers v. Coats, 966 N.E.2d 652, 656 (Ind. Ct. App. 2012). Although an aid to



                                              7
appellate review, the trial court’s findings and conclusions merely afford the appellant an

opportunity to address the merits of the trial court’s rationale. Id.

       The Parkers contend that the trial court erred in granting summary judgment based

on its conclusion that the Indiana Right to Farm Act (the Act) bars their nuisance claim.

Nuisance is defined by statute as:

       [w]hatever is:
              (1) injurious to health;
              (2) indecent;
              (3) offensive to the senses; or
              (4) an obstruction to the free use of property;

       so as essentially to interfere with the comfortable enjoyment of life or
       property, is a nuisance, and the subject of an action.

Ind. Code § 32-30-6-6. However, the Act limits a plaintiff’s ability to bring a nuisance

action against an agricultural operation. In particular, the Act provides:

       (d) An agricultural or industrial operation or any of its appurtenances is not
       and does not become a nuisance, private or public, by any changed
       conditions in the vicinity of the locality after the agricultural or industrial
       operation, as the case may be, has been in operation continuously on the
       locality for more than one (1) year if the following conditions exist:
               (1) There is no significant change in the type of operation. A
       significant change in the type of agricultural operation does not include the
       following:

                     (A) The conversion from one type of agricultural operation to
                     another type of agricultural operation.
                     (B) A change in the ownership or size of the agricultural
                     operation.
                     (C) The:
                            (i) enrollment; or
                            (ii) reduction or cessation of participation; of the
                            agricultural operation in a government program.
                     (D) Adoption of new technology by the agricultural
                     operation.
                                             8
              (2) The operation would not have been a nuisance at the time the
       agricultural or industrial operation began on that locality.

I.C. § 32-30-6-9(d).

       The Dairy asserted and the trial court agreed that the Act bars the Parkers’

nuisance action against it. On appeal, the Parkers make three arguments that the Act does

not bar their nuisance claim. First, the Parkers assert the Act does not apply in a nuisance

action between two agricultural operations.        Second, they contend that the Oberts’

conversion of a specific part of their farm, from crops to a concentrated feeding

operation, constitutes a significant change precluding the Act’s applicability. Finally, the

Parkers argue that the Act has no applicability since they have resided at their property

for years before the alleged nuisance began.

       In support of their first argument that the Act does not apply in a dispute between

two agricultural operations, the Parkers rely on TDM Farms of North Carolina v.

Wilhoite Family Farm, 969 N.E.2d 97, 110 (Ind. Ct. App. 2012). In TDM Farms, this

court held that “the Act does not apply in [a nuisance] action between two established

farming operations.” Id. A porcine virus broke out on TDM Farms and spread to the

Wilhoite Family Farm, a neighboring commercial hog farm, causing losses. Id. at 99. In

concluding that the Act did not apply to bar Wilhoite Family Farms’ nuisance claim, we

reasoned that the Act “was intended to prohibit nonagricultural land uses from being the

basis of a nuisance suit against an established agricultural operation.”        Id. at 111.



                                               9
Because the Wilhoite Family Farm, one established agricultural operation, brought suit

against another, TDM Farms, the Act did not apply. Id.

       In contrast, the Parkers here asserted nonagricultural land uses as the basis of their

nuisance suit against the Dairy. Their claims are for the odor emanating from the Dairy

and the discomfort and devaluation of property values which it may entail. The lease of

their property to Miley does not alter this because the Parkers allege no damages to

Miley’s crop farming operation.       Therefore, we conclude that TDM Farms is not

applicable to this case.

       Next, the Parkers assert that the Act does not apply because the Dairy’s

concentrated feeding operation differs from the historical Obert family farm.

Specifically, the Parkers argue that the applicable locality under the Act refers to the 67

acre-tract where the Dairy is located, rather than the two 45 acre-tracts where the Obert

Farm sits. Since it commenced operations within a year of filing their claim, the Parkers

contend the Act does not bar their nuisance claim against the Dairy.

       Under the Act, an agricultural operation “is not and does not become” a nuisance

if the operation has been in operation on the locality for more than one year so long as no

significant change has occurred. I.C. § 32-30-6-9(d). The Act defines “locality” as “the

specific area of land upon which an […] agricultural operation […] is conducted.” I.C. §

32-30-6-3(1)(A).    Further, a “conversion from one type of agricultural operation to

another type of agricultural operation” does not constitute a significant change. I.C. § 32-

30-6-9(d)(1)(A).

                                             10
      Here, our review of the evidence reveals that prior to expansion, the Oberts used

the 67 acre-tract to produce crops for their dairy farming operation. The IDEM permit

covers both the Dairy and the Obert Farm. The IDEM permit is not “site-specific” and

states that the Dairy constitutes a “four-unit confinement operation” with two existing dry

cow barns for 150 cows and one existing calf barn for 80 calves. (Appellants’ Amended

App. pp. 131). As the permit contemplates that a “freestall barn” for 750 cows will be

constructed by the Dairy, it is clear that the permit covers both the original Obert family

farm as well as the Dairy. (Appellants’ Amended App. pp. 131). Contrary to the

Parkers’ argument, the undisputed facts show that the Dairy’s 67 acre-tract and the Obert

Farms’ two 45 acre-tracts exist as a single agricultural operation and therefore together

constitute the specific area of land upon which the agricultural operation is conducted

under I.C. § 32-30-6-3.

      Finally, the Parkers argue that “[t]he Act was never intended to bar a nuisance

claim by landowners […] who have lived in an area for more than 40 years and then are

impacted by a significant change in use, such as the [concentrated] feeding operation,

which is established long after the acquisition of the property and establishment of the

use of the property by the landowners.” (Appellants’ Br. p. 10). We conclude that the

Parkers’ argument is without statutory support.

       “A significant change in the type of agricultural operation does not include […]

[t]he conversion from one type of agricultural operation to another type of agricultural

operation.”   I.C. § 32-30-6-9(d)(1)(A).    By specifying that a conversion from one

                                            11
agricultural operation to another is not a significant change, the Act removes claims

against existing farm operations that later undergo a transition from one type of

agriculture to another. Here, the Obert family farm converted that part of its operation

used to produce crops to feed its cows into a dairy operation. Although the size of the

transformation, from 100 cows to 760 cows, is substantial, this too does not constitute a

significant change.     See I.C. § 32-30-6-9(d)(1)(B).        Consequently, the Oberts

transformation of their family farm into that of a larger operation, does not, under these

circumstances, give rise to an actionable nuisance under the Act. See Laux v. Chopin

Land Associates, Inc., 550 N.E.2d 100, 102 (Ind. Ct. App. 1990), trans. denied.

      The Parkers argue that the legislature could not have intended the Act to apply to

long-time residents whose daily, rural life suffers at the hands of a “factory-like ‘mega-

farm.’” (Appellants’ Amended App. p. 116). However, it is clear that the Act insulates

the Oberts’ expansion of their dairy farm from nuisance suits under these circumstances.

In sum, we affirm the trial court’s grant of summary judgment in favor of the Dairy.

                                    CONCLUSION

      Based on the foregoing, we conclude that the Act bars the Parkers’ nuisance claim

and the trial court properly granted summary judgment to the Dairy.

      Affirmed.

BRADFORD, J. and BROWN, J. concur




                                           12
