House of Prayer Ministries, Inc. d/b/a Harvest Christian Camp, Appellant-Petitioner,
Rush County Board of Zoning Appeals, Appellee-Respondent, Milco Dairy Farm, LLC, Appellee-Intervenor.
from the Fayette Circuit Court, The Honorable Hubert
Branstetter, Jr., Judge, Trial Court Cause No.
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.
of the Case
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") 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
1. Whether, in its decision to grant a special exception to
Milco, the BZA failed to properly evaluate the public
2. Whether the BZA's decision failed to properly consider
impacts on surrounding properties.
3. Whether the BZA failed to properly consider setback
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.
and Procedural History
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.
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.
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.
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.
House of Prayer appeals from the trial court's denial of
its petition for judicial review. As our Supreme Court has
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.
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
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),
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