Summary of a Recent
Judicial Development in
Animal Feeding Operations

Second Hearing Required After
Withdrawal of Application

Kaycee Wolf
National AgLaw Center Research Associate

Summary of Decision

In Thomas v. Oolman Dairy, LLC, No. 05A02-0605-CV-418, 2006 WL 3513072 (Ind. Ct. App. Dec. 7, 2006), the Indiana Court of Appeals affirmed the trial court's order that reversed the Blackford County Area Board of Zoning Appeal's ("the Board") decision because it was arbitrary, capricious, and contrary to law. The Board was required to hold an evidentiary hearing on an application for special exception filed by Oolman Dairy.

Background

Blackford County had a zoning ordinance stating that a confined animal feeding operation (CAFO) is allowed only as a special exception in an agricultural district. Thomas, 2006 WL 3513072 at *1. An applicant must demonstrate compliance with certain performance standards in order to receive a special exception pursuant to the ordinance. Id. Oolman Dairy submitted an application seeking approval for a special exception, but then formally withdrew its application. Id. Oolman Dairy then submitted another application seeking approval so that it could operate a CAFO. Id. The Board, against the advice of its attorney, scheduled a public hearing on the second application. Id. at *2. The Board subsequently voted to terminate the public hearing because the second application was similar to the first application and the Board had already conducted a full hearing on the first application. Id. Oolman Dairy filed a petition seeking judicial review of the Board's refusal to hold a hearing on the second application. Id. Appellant-intervenor Elizabeth Thomas appealed the trial court's order. Id. at *1.

Arguments

Thomas argued that the Board intended the acceptance of withdrawal of the first application to be with prejudice. Id. at *4.

Thomas argued that, by analogy to a voluntary dismissal by order of court under Trial Rule 41, the first application could not be withdrawn until there was an official action of the Board. Id. at *6. Thomas argued that the trial court erred by analogizing the situation to voluntary dismissal by stipulation. Id.

Thomas next argued that the Board's refusal to hear the second application was proper because it was substantially similar to the first application. Id. at *6.

Analysis and Holdings

The court applied the same standard of review as the trial court because it was reviewing a decision of an administrative agency. Id. at *3. The court found that the Board voted to hold a hearing on the second application and complied with all public notice requirements for a hearing regarding the second application. Id. at *5. Therefore, the court found that the Board accepted the withdrawal of the first application without prejudice. Id. The court found no evidence that would support the conclusion that the withdrawal of the first application was accepted with prejudice. Id.

The court reasoned that Trial Rule 41 was not a good fit for this particular situation, especially because the remonstrators, including Thomas, were not a party to the agency proceeding. Id. at *6. The court found that because the Board accepted the withdrawal of the first application without prejudice, there was no need to focus on Trial Rule 41. Id.

The court found that because all of the Board's rationales were improper, the Board's decision was arbitrary and capricious. Id. at *7. The Board's rationale for not holding a second hearing was based on a res-judicata-like concept; Oolman Diary had already had its chance to argue since the first and second application were substantially similar. Id. at *6. However, res judicata did not apply in this situation because the Board never made a decision on the first application. Id. The court concluded that whether the first and second applications were substantially similar was not relevant to whether the Board should hold a hearing on the second application. Id.

The court further concluded that the Board's rationale not to hold a second hearing because it was unfair to remonstrators was not warranted. Id. at *7. There was evidence that all necessary parties and remonstrators were present to continue with the hearing until the Board voted to terminate the second hearing. Id.

Lastly the court found that the Board's rationale, that the second hearing would be unduly burdensome to the Board, puzzling. Id. The Board had already voted to hold the second hearing, put out public notice of the hearing, and the members were present and ready to proceed with the second hearing. Id. The Board did not vote to cancel the second application until minutes before the second hearing was scheduled. Id.

The case was decided on December 7, 2006; this summary was posted February 12, 2008.