House of Prayer Ministries, Inc. v. Rush Cnty. Bd. of Zoning Appeals

• Decision Date: 16 January 2018
• Docket Number: Court of Appeals Case No. 21A01–1707–MI–1693
• Parties: HOUSE OF PRAYER MINISTRIES, INC. d/b/a Harvest Christian Camp, Appellant–Petitioner, v. RUSH COUNTY BOARD OF ZONING APPEALS, Appellee–Respondent, Milco Dairy Farm, LLC, Appellee–Intervenor.
• Court: Indiana Appellate Court

91 N.E.3d 1053

HOUSE OF PRAYER MINISTRIES, INC. d/b/a Harvest Christian Camp, Appellant–Petitioner,

v. RUSH COUNTY BOARD OF ZONING APPEALS, Appellee–Respondent,Milco Dairy Farm, LLC, Appellee–Intervenor.

Court of Appeals Case No. 21A01–1707–MI–1693

Court of Appeals of Indiana.

Filed January 16, 2018

Attorneys for Appellant : Kim E. Ferraro, Samuel J. Henderson, Hoosier Environmental Council, Valparaiso, Indiana

Attorney for Appellee–Respondent : Grant M. Reeves, Barada Law Offices LLC, Rushville, Indiana

Attorneys for Appellee–Intervenor : Todd J. Janzen, Brianna J. Schroeder, Janzen Agricultural Law LLC, Indianapolis, Indiana

Najam, Judge.

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 §§ 34–13–9–1 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 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 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 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. 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 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

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