                                                                              FILED
                                                                        Jan 16 2018, 9:47 am

                                                                              CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEY FOR APPELLEE –
Kim E. Ferraro                                             RESPONDENT
Samuel J. Henderson                                        Grant M. Reeves
Hoosier Environmental Council                              Barada Law Offices LLC
Valparaiso, Indiana                                        Rushville, Indiana
                                                           ATTORNEYS FOR APPELLEE –
                                                           INTERVENOR
                                                           Todd J. Janzen
                                                           Brianna J. Schroeder
                                                           Janzen Agricultural Law LLC
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

House of Prayer Ministries, Inc.                           January 16, 2018
d/b/a Harvest Christian Camp,                              Court of Appeals Case No.
Appellant-Petitioner,                                      21A01-1707-MI-1693
                                                           Appeal from the Fayette Circuit
        v.                                                 Court
                                                           The Honorable
Rush County Board of Zoning                                Hubert Branstetter, Jr., Judge
Appeals,                                                   Trial Court Cause No.
Appellee-Respondent,                                       21C01-1610-MI-607

Milco Dairy Farm, LLC,

Appellee-Intervenor.



Najam, Judge.

Court of Appeals of Indiana | Opinion 21A01-1707-MI-1693 | January 16, 2018                      Page 1 of 22
                                           Statement of the Case
[1]   House of Prayer Ministries, Inc., d/b/a Harvest Christian Camp (“House of

      Prayer”), appeals from the trial court’s denial of its petition for judicial review

      from the decision of the Rush County Board of Zoning Appeals (“BZA”) to

      grant a special exception to Milco Dairy Farm, LLC (“Milco”) 1 in Milco’s

      construction and operation of a concentrated animal feeding operation

      (“CAFO”), which was a dairy operation consisting of 1,400 head of cattle.

      House of Prayer raises three issues for our review, which we restate as the

      following five issues:


                1.    Whether, in its decision to grant a special exception to
                Milco, the BZA failed to properly evaluate the public interest.


                2.    Whether the BZA’s decision failed to properly consider
                impacts on surrounding properties.


                3.     Whether the BZA failed to properly consider setback
                requirements.


                4.     Whether the BZA’s decision violated House of Prayer’s
                right to an impartial tribunal.


                5.     Whether the BZA’s grant of a special exception to Milco
                violated House of Prayer’s religious rights under the federal
                Religious Land Use and Institutionalized Persons Act, 42
                U.S.C.A. §§ 2000cc to 2000cc-5 (West 2017) (“RLUIPA”);
                Indiana’s Religious Freedom Restoration Act, Ind. Code §§ 34-


      1
          Milco has joined in the BZA’s brief on appeal.

      Court of Appeals of Indiana | Opinion 21A01-1707-MI-1693 | January 16, 2018   Page 2 of 22
               13-9-1 to -11 (2017) (“RFRA”); or Article 1, Sections 2 and 3 of
               the Indiana Constitution.


[2]   We affirm.


                                   Facts and Procedural History2
[3]   In November of 2015, Milco filed a permit with the BZA for a special exception

      to Rush County zoning ordinances in order to obtain local approval for the

      construction and operation of a new CAFO. Over two public meetings in

      March and April of 2016, the BZA heard evidence and testimony for and

      against Milco’s permit request. The evidence established that Milco sought to

      maintain 1,400 head of cattle at the proposed CAFO location. To

      accommodate the waste produced by the livestock, Milco proposed to construct

      on-site storage for 17.4 million gallons of waste in open-air lagoons. Milco’s

      plans further provided that no run-off would occur from the property. Milco

      presented evidence of mitigation efforts it planned to take to reduce noxious

      odors from its proposed CAFO, and its plans were approved by both the

      Indiana Department of Environmental Management and the local drainage

      board.


[4]   House of Prayer appeared at those meetings as a remonstrator against Milco’s

      permit request. House of Prayer operates a religious summer youth camp

      certified by the Indiana Department of Health. House of Prayer can host up to



      2
        The statement of facts in House of Prayer’s brief on appeal is not consistent with our standard of review.
      See Ind. Appellate Rule 46(A)(6)(b).

      Court of Appeals of Indiana | Opinion 21A01-1707-MI-1693 | January 16, 2018                       Page 3 of 22
      768 children per summer at its camp, which consists of several “multi-day or

      week long overnight programs for children and teens over eight years old.”

      Appellant’s App. Vol. IV at 138. House of Prayer holds its summer camp

      outdoors on property that is one-half mile, and downwind, from Milco’s

      proposed CAFO. House of Prayer objected to Milco’s permit request on the

      basis that the waste produced by the CAFO would be dangerous to attendees at

      House of Prayer’s events and that the prevailing winds in the area would make

      the CAFO both a nuisance to House of Prayer and a risk to its attendees.

      House of Prayer also asserted that the construction of the CAFO would

      diminish House of Prayer’s property value.


[5]   After all interested parties had presented to the BZA at the April 2016 hearing,

      the BZA called for a twenty-minute break before holding a vote on the permit

      request. During that break, Rush County Commissioner Mark Bacon

      approached BZA member Craig Trent and attempted to speak to Trent. But

      Trent promptly informed Bacon that Trent “couldn’t speak to him” and Trent

      directed Bacon to speak to the BZA’s attorney. Appellant’s App. Vol. VI at

      118. Trent later testified that he “d[id not] know” what Bacon had tried to say

      to him and that he “didn’t listen” to Bacon. Id. at 119. Rather, Trent “walked

      away.” Id. Bacon also later testified that he had no reason to doubt Trent’s

      statement that Trent did not hear what Bacon had attempted to say. Id. at 143.

      After the recess, the BZA held its vote and granted Milco’s petition for a special

      exception. In July of 2016, the BZA entered findings of fact in support of its




      Court of Appeals of Indiana | Opinion 21A01-1707-MI-1693 | January 16, 2018   Page 4 of 22
      decision and granted the special exception subject to various conditions of

      approval.


[6]   House of Prayer filed a petition for judicial review from the BZA’s decision and

      also sought declaratory judgment. The parties filed briefs for and against House

      of Prayer’s petition and designated evidence in support of their briefs. After

      argument to the court, the court entered findings of fact and conclusions

      thereon in which the court denied House of Prayer’s petition for judicial review

      and request for declaratory judgment. This appeal ensued.


                                         Discussion and Decision
                                                        Overview

[7]   House of Prayer appeals from the trial court’s denial of its petition for judicial

      review.3 As our Supreme Court has explained:


                A trial court and an appellate court both review the decision of a
                zoning board with the same standard of review. Crooked Creek
                Conservation and Gun Club, Inc. v. Hamilton County N. Bd. of Zoning
                Appeals, 677 N.E.2d 544, 547 (Ind. Ct. App. 1997), trans. denied,
                690 N.E.2d 1182 (Ind. 1997) (table). A proceeding before a trial
                court or an appellate court is not a trial de novo; neither court may
                substitute its own judgment for or reweigh the evidentiary
                findings of an administrative agency. Id. See also Equicor Dev., Inc.
                v. Westfield-Washington Twp. Plan Comm’n, 758 N.E.2d 34, 37
                (Ind. 2001). The appropriate standard of review, “whether at the
                trial or appellate level, is limited to determining whether the




      3
          House of Prayer does not appeal the denial of its request for declaratory judgment.

      Court of Appeals of Indiana | Opinion 21A01-1707-MI-1693 | January 16, 2018               Page 5 of 22
        zoning board’s decision was based upon substantial evidence.”
        Crooked Creek Conservation, 677 N.E.2d at 547.


St. Charles Tower, Inc. v. Bd. of Zoning Appeals of Evansville-Vanderburgh Cty., 873

N.E.2d 598, 600 (Ind. 2007). Further:


        When an aggrieved party seeks relief in court from an adverse
        administrative determination and attacks the evidentiary support
        for the agency’s findings, he bears the burden of demonstrating
        that the agency’s conclusions are clearly erroneous. Cundiff v.
        Schmitt Dev. Co., 649 N.E.2d 1063, 1066 (Ind. Ct. App. 1995).
        That standard requires great deference toward the administrative
        board when the petition challenges findings of fact or the
        application of the law to the facts. Id. But if the allegation is that
        the [agency] committed an error of law, no such deference is
        afforded and reversal is appropriate if an error of law is
        demonstrated. Id.


        There is a presumption that determinations of a zoning board, as
        an administrative agency with expertise in the area of zoning
        problems, are correct and should not be overturned unless they
        are arbitrary, capricious, or an abuse of discretion. Id. A
        decision is arbitrary, capricious, or an abuse of discretion if it is
        not supported by substantial evidence. Rice v. Allen Cnty. Plan
        Comm’n, 852 N.E.2d 591, 597 (Ind. Ct. App. 2006), trans. denied.


MacFadyen v. City of Angola, 51 N.E.3d 322, 325-26 (Ind. Ct. App. 2016).

Where, as here, the trial court has entered factual findings based only on a

paper record, this Court will conduct its own de novo review of that record.




Court of Appeals of Indiana | Opinion 21A01-1707-MI-1693 | January 16, 2018   Page 6 of 22
      Cook v. Adams Cty. Plan Comm’n, 871 N.E.2d 1003, 1006 (Ind. Ct. App. 2007),

      trans. denied.4


[8]   House of Prayer raises a number of challenges to the BZA’s decision to grant a

      special exception to Milco. In particular, House of Prayer raises the following

      arguments on appeal: (1) the BZA did not properly evaluate the public interest

      when it decided to grant a special exception to Milco; (2) the BZA did not

      properly consider the impact on surrounding properties; (3) the BZA did not

      properly consider setback requirements; (4) Trent’s participation in the BZA

      vote after the attempted ex parte communication with Bacon violated House of

      Prayer’s rights; and (5) the BZA’s decision violates House of Prayer’s religious

      rights under RLUIPA, RFRA, and the Indiana Constitution. We address each

      argument in turn.


                                      Issue One: “Public Interest”

[9]   We first consider House of Prayer’s argument that the BZA did not properly

      consider the public interest when it granted Milco the special exception.

      Pursuant to Rush County’s zoning ordinances: “[a] special exception shall not

      be granted . . . unless and until . . . [t]he Board of Zoning Appeals shall make a

      finding . . . that the granting of the Special Exception will not adversely affect




      4
         With respect to Bacon’s alleged interaction with Trent during the twenty-minute recess at the April 2016
      BZA meeting, the trial court received evidence that was not before the BZA. However, that evidence was
      only in paper form and was not produced at an evidentiary hearing in which the trial court acted as a fact
      finder. As such, our review of that evidence is de novo. Cook, 871 N.E.2d at 1006.

      Court of Appeals of Indiana | Opinion 21A01-1707-MI-1693 | January 16, 2018                      Page 7 of 22
the public interest.” Appellant’s App. Vol. VI at 24. In considering the public

interest here, the BZA found as follows:


        The BZA finds that the granting of the Special Exception will not
        adversely affect the public interest, subject to the additional
        conditions and restrictions placed on the project by the BZA.
        The public interest refers to the wellbeing of the Rush County
        community as a whole. While there may be some incidental
        nuisances associated with construction of the [CAFO] in the
        immediate area, as a whole[] the citizens of Rush County will
        benefit from the economic development opportunities this project
        brings. The evidence at the public hearing demonstrated that the
        [CAFO] project would provide economic benefits to the public
        through local property taxes and additional employment
        opportunities. Any nuisances involved are of the type expected
        from CAFO/CFO operations, which are clearly
        allowed/allowable uses under the Rush County Zoning
        Ordinance in the district where the proposed [CAFO] is to be
        located.


        The BZA determined that the following were necessary
        additional conditions for such approval, all of which must be
        satisfied and will be placed on the project as a written
        commitment to run with the land:


        1) All manure removed from the [CAFO] will be knifed in.


        2) The truck entrance into the facility will be 100 feet wide and
        maintained for a distance of 200 feet back to the cul-de-sac/truck
        turn-around, as shown on the plans. There will also be a truck
        turn-a-round [sic] or cul-de-sac. The entrance and truck turn-
        around or cul-de-sac need not be paved, but [it] must be sufficient
        to support semi[-]truck traffic and equipment to allow for a space
        off of the roadway to prevent congestion on the roadway.


Court of Appeals of Indiana | Opinion 21A01-1707-MI-1693 | January 16, 2018   Page 8 of 22
               3) The shelterbelt will include a minimum of 8 foot tall trees on
               all sides and shall be on top of a 6 foot berm on the eastern side
               of the project. The trees will initially be at least 2 feet tall.


               4) Signed land agreements with area farmers adequate to allow
               for the disposal of all manure shall be turned in to the Rush
               County/Rushville Joint Planning and Zoning Office prior to the
               issuance of any improvement location permit.


               5) No more than 1400 head of dairy cattle and no other livestock
               of any kind shall be permitted at this time at the [CAFO]. Any
               additional livestock of any kind will require an additional special
               exception subject to the same rules as an initial CAFO/CFO
               special exception application under the Rush County Zoning
               Ordinance.


               The BZA finds that the granting of this special exception, subject
               to the additional conditions above, will not adversely affect the
               public interest.


       Appellant’s App. Vol. V at 106.


[10]   House of Prayer asserts that the BZA’s assessment of the public interest with

       respect to the “Rush County community as a whole” is inconsistent with a

       recent position the BZA took before this Court in Flat Rock Wind, LLC v. Rush

       County Area Board of Zoning Appeals. In Flat Rock, the BZA granted a special

       exception for the construction of a wind farm subject to setback requirements

       that were in excess of the minimum setback requirements under the relevant

       ordinances. We concluded that the BZA’s imposition of the additional setback

       requirements was consistent with the BZA’s broad authority under the zoning


       Court of Appeals of Indiana | Opinion 21A01-1707-MI-1693 | January 16, 2018   Page 9 of 22
       ordinances to consider “the life, health, and safety of the surrounding

       landowners.” 70 N.E.3d 848, 861 (Ind. Ct. App. 2017), trans. denied.


[11]   House of Prayer asserts, in effect, that because the BZA imposed additional

       setback requirements in Flat Rock it was required to impose additional setback

       requirements against Milco. We cannot agree. Nothing in our opinion in Flat

       Rock suggests that the BZA must always impose additional setback

       requirements. Rather, in Flat Rock, we affirmed the BZA’s broad discretion

       under the zoning ordinances to consider the impact on other property owners in

       deciding whether, and under what conditions, to grant special exceptions,

       which is not inconsistent with the BZA’s decision in the instant appeal.

       Further, the BZA’s position in Flat Rock was not premised on a particular

       definition of “public interest,” nor did we hold that the BZA may not consider,

       in its discretion, the local economic impact on a case-by-case basis.5 In essence,

       House of Prayer’s argument on this issue seeks to have this Court reweigh the

       evidence in House of Prayer’s favor and to deny the BZA its discretion, which

       we cannot do. Accordingly, we cannot say that the BZA’s consideration of the

       “public interest” here was contrary to law.




       5
         House of Prayer further asserts that there was “no such evidence” before the BZA of the CAFO’s economic
       impact “other than the self-serving statement of Milco’s owner . . . .” Appellant’s Br. at 21 & n.6. House of
       Prayer’s assertion is facially inconsistent—a self-serving statement is evidence. See Hughley v. State, 15 N.E.3d
       1000, 1003-04 (Ind. 2014).

       Court of Appeals of Indiana | Opinion 21A01-1707-MI-1693 | January 16, 2018                        Page 10 of 22
                                 Issue Two: Surrounding Properties

[12]   House of Prayer next asserts that the BZA failed to properly consider the

       impact of Milco’s CAFO on surrounding properties when it granted the special

       exception. According to the zoning ordinances, before it may issue a special

       exception the BZA “shall make written findings” and “shall ascertain that

       satisfactory provision and arrangement has been made concerning . . . [g]eneral

       compatibility with adjacent properties and other property in the district.”

       Appellant’s App. Vol. VI at 24-25. On this issue, the BZA’s written findings

       state: “Given that this parcel is located in an A-3 zoning district, where

       agricultural development is expected, the BZA finds that this use is compatible

       with the adjacent properties.” Appellant’s App. Vol. V at 108.


[13]   House of Prayer’s entire argument on this issue is premised on its assertion that

       “extensive evidence was presented to the BZA that the proposed CAFO will

       adversely affect both neighbors’ health and property values . . . . The BZA

       wholly disregarded this evidence.” Appellant’s Br. at 25. But we agree with the

       BZA that House of Prayer “just ignores any evidence that does not support its

       case and asks this Court to do the same, which is the opposite of what the

       standard of review requires.” Appellee’s Br. at 22. In particular, House of

       Prayer does not cite or discuss the substantial evidence that supports the BZA’s

       decision to grant the special exception to Milco.


[14]   In other words, House of Prayer asks this Court to consider only the evidence

       House of Prayer considers worthy of credit and the conclusions House of

       Prayer has reached from that evidence, which we cannot do. We also disagree
       Court of Appeals of Indiana | Opinion 21A01-1707-MI-1693 | January 16, 2018   Page 11 of 22
       with House of Prayer’s assertion that the BZA’s findings on this issue “are

       merely a general replication of the requirements of the ordinance.” Appellant’s

       Br. at 25. We cannot say that the BZA’s decision on this issue is contrary to

       law.


                                  Issue Three: Setback Requirements

[15]   House of Prayer next asserts that the BZA erred when it permitted Milco’s

       CAFO to be located one-half mile, rather than one full mile, from House of

       Prayer’s property.6 According to the relevant zoning ordinance: “[s]eparation

       distance from an existing CFO/CAFO structure or school shall be a minimum

       of one (1) mile which shall be measured from the nearest CFO/CAFO structure

       to the school.” Appellant’s App. Vol. V at 220. But the ordinance does not

       define “school” for purposes of the CAFO setback. As such, House of Prayer

       asserts that a broad definition that captures its summer camp must apply.

       Appellant’s Br. at 27 (asserting that “school” in the zoning ordinance must

       mean any “organization that provides instruction” to or “the teaching of

       children”).


[16]   But we cannot say as a matter of law that the BZA was required to adopt such a

       broad definition of “school” over a more limited definition that applies to

       entities more “traditionally thought of and known as ‘school.’” See, e.g., John

       Doe v. Boone Cty. Prosecutor, 85 N.E.3d 902, 909 (Ind. Ct. App. 2017). A BZA’s



       6
        We address House of Prayer’s argument that not applying the one-mile setback provision to it violates
       RLUIPA in Issue Five.

       Court of Appeals of Indiana | Opinion 21A01-1707-MI-1693 | January 16, 2018                   Page 12 of 22
       interpretation of a zoning ordinance, which it is charged with the duty of

       enforcing, “is entitled to great weight,” unless that interpretation “would be

       inconsistent with the [ordinance] itself.” St. Charles Tower, 873 N.E.2d at 603

       (quotation marks omitted). We conclude that the omission of a definition of

       “school” within the ordinance rendered that language ambiguous, which placed

       the interpretation of that language within the reasonable discretion of the BZA.

       And we cannot say that the BZA’s decision that “school” does not include

       House of Prayer’s summer camps was an interpretation inconsistent with or

       contrary to the ordinance itself.


[17]   Still, House of Prayer asserts that the BZA’s interpretation of “school” violates

       the Equal Privileges and Immunities Clause under Article 1, Section 23 of the

       Indiana Constitution.7 In particular, House of Prayer states that applying the

       one-mile setback to “other types of schools, but not youth camps,” is disparate

       treatment that is not reasonably related to inherent characteristics that

       distinguish the unequally treated classes. Appellant’s Br. at 29 (footnote

       omitted). House of Prayer further asserts that the BZA’s preferential treatment

       is not uniformly applicable and equally available to all persons similarly

       situated. See, e.g., Collins v. Day, 644 N.E.2d 72, 78-79 (Ind. 1994).




       7
         In its brief, the BZA suggests that House of Prayer lacks standing to raise a claim under Art. 1, § 23 because
       House of Prayer is an incorporated entity rather than a “citizen.” Appellee’s Br. at 25 n.12; see Ind. Const.
       art. 1, § 23. But the Indiana Supreme Court has applied Art. 1, § 23 to businesses. See, e.g., Whistle Stop Inn,
       Inc. v. City of Indianapolis, 51 N.E.3d 195, 202-03 (Ind. 2016). Thus, we are not persuaded by the BZA’s
       suggestion.

       Court of Appeals of Indiana | Opinion 21A01-1707-MI-1693 | January 16, 2018                       Page 13 of 22
[18]   As our Supreme Court has stated, we apply a two-part test for determining a

       statute’s validity under Article 1, Section 23:


               First, the disparate treatment accorded by the legislation must be
               reasonably related to inherent characteristics which distinguish
               the unequally treated classes. Second, the preferential treatment
               must be uniformly applicable and equally available to all persons
               similarly situated.


       Whistle Stop Inn, Inc. v. City of Indianapolis, 51 N.E.3d 195, 198 (Ind. 2016)

       (citation omitted). We presume an ordinance to be constitutional, and the

       burden is on the challenger to “negate every conceivable basis which might

       have supported the classification.” Id. (quotation marks and alterations

       omitted).


[19]   As to the first part of our Article 1, Section 23 test, we agree with the BZA that

       the disparate treatment is reasonably related to inherent characteristics that

       distinguish schools from summer camps. Among other reasons, schools are

       highly regulated by the Indiana Department of Education; the school year lasts

       180 full instructional days; and, generally, children under eighteen years of age

       in Indiana must attend school. See, e.g., I.C. §§ 20-30-2-3, -33-2-6. Voluntary,

       week-long summer camps do not have such characteristics. And a one-mile

       setback, rather than a one-half mile setback, is reasonably related to those

       inherent characteristics.


[20]   We also agree with the BZA’s assessment under the second part of our Article

       1, Section 23 test. The one-mile setback requirement for schools and one-half


       Court of Appeals of Indiana | Opinion 21A01-1707-MI-1693 | January 16, 2018   Page 14 of 22
       mile setback for other entities treats all schools the same and it treats all

       summer camps the same. Thus, the ordinance is “uniformly applicable and

       equally available to all persons similarly situated.” Whistle Stop, 51 N.E.3d at

       198. House of Prayer has not met its burden to demonstrate that the BZA’s

       application of the ordinance is contrary to Article 1, Section 23.


                          Issue Four: Alleged Ex Parte Communication

[21]   We next consider House of Prayer’s argument that Bacon’s attempt to

       communicate with Trent during the twenty-minute recess at the April 2016

       BZA meeting violated House of Prayer’s rights. In particular, House of Prayer

       asserts that Bacon’s attempt to communicate with Trent violated House of

       Prayer’s right to an impartial hearing before the BZA, which right is secured by

       statutory and constitutional provisions. See, e.g., City of Hobart Common Council

       v. Behav. Inst. of Ind., LLC, 785 N.E.2d 238, 250-51 (Ind. Ct. App. 2003).


[22]   Although the parties dispute the proper standard to be applied to this issue, we

       conclude that the dispositive question is whether House of Prayer presented any

       evidence to show that an ex parte communication between Bacon and Trent

       actually occurred. Despite House of Prayer’s strident assertions to the contrary

       on appeal, our review of the record demonstrates that there is no such evidence.

       Rather, the record is clear that Bacon attempted to speak to Trent but that Trent

       did not listen to Bacon, did not know what Bacon had tried to say to him, told

       Bacon to talk to the BZA’s lawyer, and walked away. Bacon also testified that

       he had no reason to doubt Trent’s testimony that Trent did not hear him. The


       Court of Appeals of Indiana | Opinion 21A01-1707-MI-1693 | January 16, 2018   Page 15 of 22
       undisputed evidence thus shows that there was no ex parte communication in

       the first instance. As such, House of Prayer’s argument on this issue must fail.


                         Issue Five: House of Prayer’s Religious Rights

[23]   Finally, House of Prayer asserts that the BZA’s grant of the special exception to

       Milco violates House of Prayer’s religious rights. In particular, House of Prayer

       asserts that the BZA’s decision violates the following: RLUIPA, RFRA, and

       the Indiana Constitution. We address each of the House of Prayer’s religious

       arguments in turn.

                                                      RLUIPA


[24]   We first consider House of Prayer’s argument that the BZA violates House of

       Prayer’s rights under RLUIPA. Under RLUIPA, “[n]o government shall

       impose or implement a land use regulation in a manner that imposes a

       substantial burden on the religious exercise of a person, including a religious

       assembly or institution, unless the government demonstrates that imposition of

       the burden” is both “in furtherance of a compelling government interest” and

       “the least restrictive means of furthering that compelling government interest.”

       42 U.S.C.A. § 2000cc(a)(1). RLUIPA further provides that “[n]o government

       shall impose or implement a land use regulation in a manner that treats a

       religious assembly or institution on less than equal terms with a nonreligious

       assembly or institution.” 42 U.S.C.A. § 2000cc(b)(1). RLUIPA defines a “land

       use regulation” in relevant part as “a zoning . . . law, or the application of such

       a law, that limits or restricts a claimant’s use . . . of land . . . , if the claimant


       Court of Appeals of Indiana | Opinion 21A01-1707-MI-1693 | January 16, 2018      Page 16 of 22
       has . . . [a] property interest in the regulated land . . . .” 42 U.S.C.A. § 2000cc-5(5)

       (emphasis added).


[25]   House of Prayer asserts that the BZA’s decision is a substantial burden on

       House of Prayer’s religious exercise that does not pass the strict scrutiny test

       articulated in RLUIPA and that the BZA’s decision with respect to the setback

       requirement does not treat House of Prayer on equal terms with nonreligious

       entities. However, we conclude, as a matter of first impression, that RLUIPA

       is not available to House of Prayer. By its plain terms, RLUIPA may be raised

       only by a claimant who has a “property interest in the regulated land.” Id.

       That is, RLUIPA applies to land use regulations imposed by a government

       directly on religious groups.


[26]   The land regulated by the special exception here is wholly owned by Milco.

       House of Prayer has no property interest in that land. As such, House of Prayer

       may not rely on RLUIPA. See id.


[27]   Nonetheless, House of Prayer asserts that “regulated land” in RLUIPA must

       mean any land that is affected by a regulation, even if the regulation is

       specifically directed to land in which the claimant has no interest. Appellant’s

       Br. at 41-45. We decline House of Prayer’s request to disregard the plain

       language of RLUIPA and, in its place, to apply an expansive and vague

       requirement that RLUIPA instead be available to any property owner whose

       interests might be affected by a given regulation. Indeed, the special exception

       here contemplates the CAFO’s effect on the entire “Rush County community.”


       Court of Appeals of Indiana | Opinion 21A01-1707-MI-1693 | January 16, 2018    Page 17 of 22
       Appellant’s App. Vol. V at 106. Under House of Prayer’s reading of RLUIPA,

       then, every citizen in Rush County would potentially have a RLUIPA claim

       against the special exception. That would be an absurd result, and if the statute

       were ambiguous we would be obliged to avoid interpreting it in a way that led

       to that result. See, e.g., Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575

       (1982). In any event, the plain language of RLUIPA speaks for itself, and the

       judiciary has no discretion to substitute different language for that of the statute.

       E.g., Carcieri v. Salazar, 555 U.S. 379, 392 (2009). Accordingly, House of

       Prayer’s RLUIPA claims must fail.

                                                          RFRA


[28]   We next turn to House of Prayer’s arguments under Indiana’s RFRA. We

       initially note that there is no dispute that RFRA entitled House of Prayer, as a

       remonstrator against Milco’s request for a special exception, to a fact-finding

       hearing on its religious-exercise claim, which was held here by the BZA. I.C. §§

       34-13-9-1, -2, -10(a).8 Indeed, by its plain terms, Indiana’s RFRA expressly

       permits all persons9 in Indiana in any “judicial or administrative proceeding,”

       other than actions based on certain claims of discrimination or claims against

       private employers, to assert their exercise of religion as a claim or defense


       8
         The only published opinion in Indiana that applies our RFRA is Tyms-Bey v. State, in which we held that
       the State’s authority to collect taxes due or to prosecute the failure to pay taxes due is uniquely exempt from
       the application of RFRA. 69 N.E.3d 488, 492 (Ind. Ct. App. 2017), trans. denied. As the instant appeal is not
       a tax case, Tyms-Bey is not instructive authority here.
       9
         Indiana’s RFRA defines “person” broadly, and that definition includes various businesses and other
       organizations. I.C. § 34-13-9-7. There is no dispute in this appeal that House of Prayer is a “person” under
       Indiana’s RFRA.

       Court of Appeals of Indiana | Opinion 21A01-1707-MI-1693 | January 16, 2018                      Page 18 of 22
       against government action, regardless of whether the government is a party to

       the proceeding. I.C. § 34-13-9-9.


[29]   Similar to RLUIPA, Indiana’s RFRA prohibits “a governmental entity” from

       “substantially burden[ing] a person’s exercise of religion, even if the burden

       results from a rule of general applicability.” I.C. § 34-13-9-8(a). However, “[a]

       governmental entity may substantially burden a person’s exercise of religion”

       when the burden “is in furtherance of a compelling governmental interest” and

       “is the least restrictive means of furthering that compelling governmental

       interest.” I.C. § 34-13-9-8(b). That is, in order to substantially burden a

       person’s exercise of religion, the government must show that “it lacks other

       means of achieving its desired goal without imposing” that burden, which

       requires a “focused inquiry” that “scrutinizes the asserted harm . . . to particular

       religious claimants.” Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2779-

       80 (2014) (discussing the federal version of RFRA); see also I.C. §§ 34-13-9-5, -7

       (adopting the holdings of Burwell under Indiana’s RFRA).


[30]   Here, House of Prayer asserts that the grant of the special exception

       substantially burdens House of Prayer’s exercise of religion by “imperiling the

       health of the children” at House of Prayer’s summer camp. Appellant’s Br. at

       48. House of Prayer further asserts that the imposition of that burden is not in

       furtherance of a compelling government interest.10 In response, the BZA asserts




       10
          House of Prayer does not assert that the BZA was required, as a matter of law, to enter findings that
       specifically addressed House of Prayer’s RFRA claim. Accordingly, as noted above, our review is limited to

       Court of Appeals of Indiana | Opinion 21A01-1707-MI-1693 | January 16, 2018                   Page 19 of 22
       that House of Prayer presented no evidence that its exercise of religion has been

       or will be substantially burdened by the grant of the special exception.


[31]   We do not agree with the BZA that House of Prayer presented no evidence of a

       substantial burden on the exercise of its religion. House of Prayer presented

       expert testimony to the BZA that the construction of the proposed CAFO

       would harm the health of attendees at House of Prayer’s summer camp through

       both noxious odors and waste run-off. An obvious and reasonable inference

       from that evidence is that fewer people would, as a consequence, attend House

       of Prayer’s camp, which in turn would adversely affect House of Prayer’s ability

       to provide religious guidance to those who might be interested in it. We also

       agree with House of Prayer that an obvious and reasonable inference from that

       evidence is that the ability of attendees to focus could be adversely affected.


[32]   But the BZA acted as a fact finder on the evidence before it, and it did not credit

       House of Prayer’s evidence. Rather, the BZA credited Milco’s evidence with

       respect to mitigation efforts Milco intended to take to abate noxious odors and

       avoid waste run-off from Milco’s property. The BZA further imposed various

       other mitigation requirements on Milco as a condition of granting the special

       exception. In other words, the BZA found, as a matter of fact, that House of

       Prayer would not be substantially burdened in the exercise of its religion by the

       grant of the special exception.




       determining whether the BZA’s decision was based upon substantial evidence. St. Charles Tower, 873 N.E.2d
       at 600 (quotation marks omitted).

       Court of Appeals of Indiana | Opinion 21A01-1707-MI-1693 | January 16, 2018                 Page 20 of 22
[33]   House of Prayer’s argument to the contrary on appeal is, in its effect, a request

       for this Court to reweigh the evidence that was before the BZA, which we

       cannot do. The BZA’s apparent assessment that House of Prayer will not be

       substantially burdened in the exercise of its religion by the grant of the special

       exception is supported by substantial evidence. Accordingly, we cannot say

       that the BZA’s decision on this issue is contrary to law.


                            Article 1, Sections 2 and 3 of the Indiana Constitution


[34]   Finally, House of Prayer asserts that the grant of the special exception violates

       its religious rights under Article 1, Sections 2 and 3 of the Indiana Constitution.

       In particular, House of Prayer asserts that the grant of the special exception

       materially burdens its constitutionally protected religious rights. “A [state

       constitutional] right is impermissibly alienated when the State materially

       burdens one of the core values which it embodies.” Price v. State, 622 N.E.2d

       954, 960 (Ind. 1993).


[35]   However, having concluded that the BZA had before it substantial evidence to

       support its decision that House of Prayer’s exercise of religion has not been and

       will not be substantially burdened under Indiana’s RFRA, we likewise conclude

       that the BZA’s decision will not materially burden House of Prayer’s religious

       rights under Article 1, Sections 2 and 3 of the Indiana Constitution. Thus,

       House of Prayer’s argument under Article 1, Sections 2 and 3 of the Indiana

       Constitution must fail.




       Court of Appeals of Indiana | Opinion 21A01-1707-MI-1693 | January 16, 2018    Page 21 of 22
                                                    Conclusion

[36]   In sum, we affirm the trial court’s denial of House of Prayer’s petition for

       judicial review.


[37]   Affirmed.


       Mathias, J., and Barnes, J., concur.




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