Hendricks County Bd. of Zoning Appeals v. Barlow, 32A05-9309-CV-331

• Citation: 656 N.E.2d 481
• Case Date: October 10, 1995
• Court: Court of Appeals of Indiana

Page 481

656 N.E.2d 481 HENDRICKS COUNTY BOARD OF ZONING APPEALS; Howard Conley,
Alan Richardson, John Randall, Denley Tindall, and Joann
Groves, Members Thereof; Hendricks County Planning and
Building Department and Robert E. Jarzen, Planning Director;
The County Commissioners of Hendricks County, Indiana,
Richard P. Myers, Hursel C. Disney, and John D. Clampitt,
Appellants-Defendants,
v.
Dwight BARLOW and Jody Barlow, Appellees-Plaintiffs. No. 32A05-9309-CV-331. Court of Appeals of Indiana. Oct. 10, 1995.

Page 482

Gregory W. Black, Deckard & O'Brien, Danville, for appellants.

Jack C. Brown, John O. Moss, Indianapolis, for appellees.

OPINION

RUCKER, Judge.

Because Dwight and Jody Barlow were housing wild and exotic animals on their property, the Hendricks County Planning and Building Department issued a citation against them for a zoning violation. According to the Department certain provisions of a Hendricks County ordinance prohibited the housing of wild animals on residential property. The Hendricks County Board of Zoning Appeals affirmed the violations and also denied the Barlows' subsequent request for a variance. After the Barlows sought judicial review, the trial court set aside the Board's decision, ruling that a county's authority to regulate the possession of wild animals is preempted by federal and state law. Defendants (referred to collectively as "County") now appeal raising several issues for our review which we consolidate and rephrase as one: Does federal or state law prohibit county government from regulating the possession of wild animals through local zoning ordinances?

Since 1988, the Barlows have owned and occupied their present residence in Hendricks County, Indiana. From that time until this dispute arose the Barlows have possessed

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on their property various wild ¹ and exotic ² animals including, among others: African lions, cougars, Rhesus monkeys, African hedgehogs, a Bengal tiger, a black bear, a red rat snake, a gibbon, and a coyote. The Barlows raise and breed the animals as pets and house them primarily in outdoor cages located on their property. They also possess certain relevant federal and state permits including a U.S. Department of Agriculture Breeders Permit and a Breeders License issued by the Indiana Department of Natural Resources (DNR). ³

In July 1990, the Hendricks County Planning and Building Department issued a citation against the Barlows for allegedly violating Hendricks County Zoning Ordinance 5.3.1 which dictates in relevant part: "No ... land shall be used ... for any purpose other than a use which is permitted and specified in the district in which such ... land is located." The Barlows' property is located in an area designated as "Suburban Resident District." The Barlows appealed the citation to the Hendricks County Board of Zoning Appeals (BZA). After the BZA affirmed the violation, the Barlows sought judicial review. The trial court remanded the cause to the BZA for further proceedings. Thereafter the Barlows applied for a variance from the BZA seeking permission to continue housing the animals on their property. Following extensive hearings on the matter, the BZA denied the Barlows' application and again affirmed the violation. Again the Barlows sought judicial review. After conducting another hearing the trial court entered judgment declaring the BZA had no authority to restrict or cite the Barlows for possession of properly licensed wild and exotic animals. The trial court's judgment was supported by findings and conclusions in which the trial court determined among other things: "the county authority to deal with the location of wild and exotic animals has been preempted by the State and Federal Governments to the exclusion of the county's right to govern its own lands concerning the location of these animals." Record at 11. This appeal ensued in due course.

In reviewing the decision of a zoning board, we are bound by the same standard of review as the trial court. Yater v. Hancock County Planning Comm'n (1993), Ind.App., 614 N.E.2d 568, 570, cert. denied, 511 U.S. 1019, 114 S.Ct. 1401, 128 L.Ed.2d. 73 (1994). Because this issue is a pure question of law, our standard does not require deference to the determinations of the BZA and reversal is appropriate if an error of law is demonstrated. Natural Resources Comm'n v. AMAX Coal Co. (1994), Ind., 638 N.E.2d 418, 423, reh'g denied; Town of Beverly Shores v. Bagnall (1992), Ind., 590 N.E.2d 1059, 1061. Absent such illegality, this court may not substitute its judgment for that of the BZA. Bagnall, 590 N.E.2d at 1061.

The preemption doctrine is based on the supremacy clause of the United States Constitution which provides in relevant part that the law of the United States "shall be the supreme law of the land ... anything in the constitution or laws of any state to the contrary notwithstanding." U.S. Const. art. VI, cl. 2. It is well settled that state or local law which conflicts with federal law is "without effect." Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112 S.Ct. 2608, 2617, 120 L.Ed.2d 407, 422 (1992). In determining whether a federal statute has preempted state or local law, our ultimate task is to ascertain the intent of Congress. Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 95, 103 S.Ct. 2890, 2899, 77 L.Ed.2d 490 (1983); Wilson v. Pleasant (1994), Ind.App., 645 N.E.2d 638, 640, trans. granted.

Three variations of federal preemption doctrine exist: express preemption, which occurs when a statute expressly defines the scope of its preemptive effect, Morales v. Trans World Airlines, Inc., 504 U.S.

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374, 381, 112 S.Ct. 2031, 2036, 119 L.Ed.2d 157 (1992); Metropolitan Life Ins. Co. v. Christ, 979 F.2d 575, 578 (7th Cir.1992), field preemption, which occurs when a pervasive scheme of federal regulation makes it reasonable to infer that Congress intended exclusive federal regulation of the area, Gade v. National Solid Wastes Management Ass'n, 505 U.S. 88, 98, 112 S.Ct. 2374, 2383, 120 L.Ed.2d 73 (1992); Seaboard Sur. Co. v. Ind. St. Dist. Council (1995), Ind.App., 645 N.E.2d 1121, 1123, trans. denied, and conflict preemption, which occurs either...