Indiana Court of Appeals Sends CAFO Approval Back to Jackson County Zoning Board for Reconsideration

Report by Chapter Conservation Committee and Michiana Group

March 18, 2008

When a proposed 8,000 hog CAFO to be built on a ten acre parcel in Jackson County was brought before the Zoning Board, neighbors were understandably upset, and brought evidence before the Zoning Board that the resulting stench and degradation of water quality would reduce their property values by as much as 30%. Over those objections, in a 3-1 vote, the Zoning Board sided with the CAFO, and approved the operation. A trial court agreed with the Zoning Board, finding that the effect on property values, odors, and water quality issues were not enough to give the petitioners standing to sue.

On April 18, 2008, the Indiana Court of Appeals handed the petitioners a second chance against the CAFO operators. The Court of Appeals found that the loss of property values, the stench, and the threat to water quality is indeed enough to give petitioners the right to sue, and has ordered the trial court to reconsider the claims of the petitioners, including whether the Zoning Board's decision violated the Indiana Open Door Law when the commissioners held a whispered 22 minute conference out of earshot of the public before casting their votes.

This does not mean, of course, that the CAFO permit will be automatically denied. Petitioners only get a second shot at the permit. As with many issues before zoning boards, the interests of the public are likely to take a back seat to the interests of special agricultural or business interests. Petitioners will at least get another chance to try and convince what has so far been an unsympathetic board that the public welfare does, indeed, have some value.

Background: http://www.tribtown.com/news/hog_2042___article.html/bza_decision.html

Court of Appeals Opinion: http://www.in.gov/judiciary/opinions/pdf/04180801mpb.pdf

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