Hendricks County Bd. of Zoning Appeals v. Barlow

• Decision Date: 10 October 1995
• Docket Number: No. 32A05-9309-CV-331,32A05-9309-CV-331
• Citation: 656 N.E.2d 481
• Parties: 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.
• Court: Indiana Appellate Court

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.

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 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. 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 where it is impossible to comply with both federal and state or local law, Gade, 505 U.S. at 98, 112 S.Ct. at 2383, or where state law stands as an obstacle to the accomplishment and execution of federal purposes and objectives. Hillsborough County v. Automated Medical Lab., Inc., 471 U.S. 707, 713, 105 S.Ct. 2371, 2375, 85 L.Ed.2d 714 (1985).

Courts do not lightly attribute to Congress or to a federal agency the intent to preempt state or local laws. Indeed, where Congress legislates in a field traditionally occupied by the states, "we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." California v. ARC America Corp., 490 U.S. 93, 101, 109 S.Ct. 1661, 1665, 104 L.Ed.2d 86 (1989) quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947) (emphasis added). Reasonable zoning laws are a proper exercise of a government's historic "police power" which has been defined as the authority to provide for the public health, safety, and morals. Barnes v. Glen Theatre, Inc., 501 U.S. 560, 569, 111 S.Ct. 2456, 2462, 115 L.Ed.2d 504 (1991); Barnes v. City of Anderson (1994), Ind.App., 642 N.E.2d 1004, 1007; Saurer v. Board of Zoning Appeals (1994), Ind.App., 629 N.E.2d 893.

The Animal Welfare Act, 7 U.S.C. §§ 2131-2159 ("the Act"), regulates the transportation, purchase, sale, housing, care, handling, and treatment of animals, with the intent of fostering humane treatment and care of animals and protecting animal owners from theft of their animals. See 7 U.S.C. § 2131. The Barlows are licensed as "Class B Dealers" pursuant to the Act and contend that County is foreclosed from encroaching upon their federally protected right to possess wild and exotic animals.

A recent decision of the Seventh Circuit Court of Appeals addressed the issue of local ordinance preemption by the Animal Welfare Act. In DeHart v. Town of Austin, Ind., 39 F.3d 718 (7th Cir.1994) a business owner principally engaged in the sale of exotic and wild animals filed suit challenging a town ordinance which prohibited the possession of wild animals or animals capable of inflicting serious physical harm or death to human beings. Determining that the Act did not operate to preempt the town from regulating wild animals, the Seventh Circuit reasoned that none of the above-mentioned methods of preemption were applicable. To the contrary, the Act expressly contemplates state and local cooperation in fulfilling the statute's objectives. For example, the Act declares that "[t]he Secretary is authorized to cooperate with the officials of the various States or political subdivisions thereof in carrying out the purposes of this chapter and of any State, local, or municipal legislation or ordinance on the same subject." 7 U.S.C. § 2145(b). Moreover, the Act provides that the statutory authority delegated to the Secretary of Agriculture to "promulgate standards to govern the humane handling, care, treatment, and transportation of animals by dealers, research facilities, and exhibitors," see 7 U.S.C. § 2143(a)(1), "shall not prohibit any State (or a political subdivision of such State) from promulgating standards in addition to those standards promulgated by the Secretary." 7 U.S.C. § 2143(a)(8). The DeHart court concluded, "we discern no Congressional intent to ban state or local legislation in the regulation of wild animals." DeHart, 39 F.3d at 722.

In addition to DeHart, courts in other jurisdictions have reached similar conclusions. See, e.g., Cresenzi Bird Importers, Inc. v. State of New York, 658 F.Supp. 1441, 1444 (S.D.N.Y.1987), aff'd, 831 F.2d 410 (2nd Cir.1987) (noting that "[w]ildlife is regulated concurrently by federal and state...