Summary of a Recent
Judicial Development in
Animal Feeding Operations

Petition for Review of Zoning Board's Issuance
of CAFO Construction Permits

Walt McCarter
National AgLaw Center Research Associate

Summary of Decision

In Benton County Remonstrators v. Board of Zoning Appeals of Benton County, 905 N.E.2d 1090 (Ind. Ct. App. 2009), the Indiana Court of Appeals held that the trial court erred in dismissing the plaintiffs' petition for review of the county zoning board's decision to issue two special applications for construction of confined animal feeding operations (CAFOs), but only as to one of the two applications; the plaintiffs had standing to challenge the board's decision, but had failed to comply with statutory notice requirements for one of the applications.

Background

The Benton County Remonstrators petitioned review of a decision by the Benton County Board of Zoning Appeals that had granted two special applications for construction of CAFOs, and sought declaratory relief. Id. at 1093-94. The circuit court dismissed the petition for lack of standing, and the remonstrators appealed. Id. The recipient of the special applications, North Fork Farms, cross-appealed and argued that the remonstrators' petition for review was invalid. Id.

Arguments

North Fork argued that the remonstrators' petition was invalid because it was not properly verified; it was only signed by the remonstrators' counsel, in violation of Indiana Code § 36-7-4-1003(a). Id. at 1094-95.

The remonstrators argued that the original trial judge, who recused himself and appointed a special judge, lacked the authority to later rescind that order and substitute another special judge. Id. at 1095-96. They further argued that the trial court erred in determining that they lacked standing to challenge the zoning board's decision, and erred in dismissing their petition for failure to provide notice to all of the necessary landowners and parties. Id. at 1097-98.

Analysis and Holdings

The court held that the petition could be verified by the remonstrator's counsel alone, because "verification need only substantially comply with [Indiana] Trial Rule 11(B)," which provides that verification "shall be sufficient if the subscriber simply affirms the truth of the matter to be verified." Id. Having met those requirements, the court determined that remonstrator's petition for review was valid. Id. The court also held that the original trial judge had properly exercised his authority in recusing himself and appointing a special judge to preside over the matter. Id. Upon realizing he had appointed an ineligible special judge to the case, he properly rectified the mistake and appointed an eligible special judge. Id. at 1096. The court explained, "[e]ven assuming that [the original trial judge] only retained jurisdiction over emergency matters, we conclude that the mistaken appointment of a judge ineligible to accept the appointment would certainly constitute an emergency matter." Id. The court likewise found no error in the special judge's denial of the remonstrator's motion to change judges because the remonstrators had failed to timely strike from the available panel of judges. Id. at 1097.

Regarding the remonstrators' standing, the court explained that "[a] person must be 'aggrieved' by a board of zoning appeals' decision in order to have standing to seek judicial review of that decision." Id. The court found that the remonstrators, as adjoining property owners, had sufficiently alleged sufficient harm and pecuniary injury (devaluation of their property) to have standing to challenge the zoning board's decision. Id. at 1098. However, the court found that the remonstrators had only complied with statutory notice requirements for one of the two special applications, and thus the trial court erred in dismissing their petition as to only one of the applications. Id. at 1099. Therefore, the court remanded the case to the trial court for further proceedings concerning one of the applications. Id.

The case was decided on May 15, 2009.