Janet L. Himsel, Martin Richard Himsel, Robert J. Lannon, Susan M. Lannon, Appellants-Plaintiffs,
Samuel Himsel, Cory M. Himsel, Clinton S. Himsel, 4/9 Livestock, LLC and Co-Alliance, LLP, Appellees-Defendants, and State of Indiana, Appellee-Intervenor.
from the Hendricks Superior Court The Honorable Mark A.
Smith, Judge Trial Court Cause No. 32D04-1510-PL-150
Attorneys for Appellants Kim E. Ferraro Samuel J. Henderson
Attorneys for Amicus curiae Hendricks County Gregory E.
Steuerwald Graham T. Youngs Danville, Indiana
Attorney for Amicus curiae the indiana bankers association
Martha R. Lehman Indianapolis, Indiana
Attorneys for Amicus curiae indiana agricultural law
foundation, inc. Todd J. Janzen Brianna J. Schroeder
Attorneys for Amicus curiae indiana pork producers
association, inc. Daniel P. McInerny Andrew M. McNeil
Attorneys for Appellees Christopher J. Braun Jonathan P.
Emenhiser Justin A. Allen Indianapolis, Indiana
Attorneys for Appellees-intervenor state of indiana Curtis T.
Hill, Jr. Attorney General of Indiana Aaron T. Craft Deputy
Attorney General Indianapolis, Indiana.
Martin Richard Himsel, Janet L. Himsel, Robert J. Lannon, and
Susan M. Lannon (collectively, the Plaintiffs) filed a
complaint, alleging nuisance, negligence, and trespass,
against Samuel T. Himsel, Cory M. Himsel, Clinton S. Himsel,
4/9 Livestock, LLC, and Co-Alliance, LLP (collectively, the
Defendants). Specifically, the Plaintiffs alleged in their
complaint that the concentrated animal feeding operation
(CAFO) placed on 4/9 Livestock's property in 2013 created
noxious odors that are so extreme as to greatly diminish the
Plaintiffs' quality of life, reduce their property
values, and alter their daily activities. In their complaint,
the Plaintiffs also challenged the constitutionality of Ind.
Code § 32-30-6-9, which is commonly known as the Right
to Farm Act (the RTFA), and Ind. Code § 15-11-2-6(a),
which requires the Indiana Code to be construed to
"protect the rights of farmers to choose among all
generally accepted farming and livestock production
practices, including the use of ever changing
The Defendants moved for summary judgment on all claims, and,
thereafter, the Plaintiffs filed a motion for partial summary
judgment regarding their constitutional challenges. Following
a hearing, the trial court granted summary judgment in favor
of Clinton, Cory, and Samuel Himsel (the Individual Himsel
Defendants) but otherwise denied both motions for summary
judgment. The Defendants filed a motion to correct error,
once again seeking summary judgment on all claims against
them. Amici curiae - the Indiana Agricultural Law Foundation
(IALF) and Hendricks County - filed briefs in support of the
Defendants' motion to correct error. In addition to
opposing the Defendants' motion to correct error, the
Plaintiffs asserted cross-error regarding the trial
court's grant of summary judgment to the Individual
The trial court granted the Defendants' motion to correct
error and then entered summary judgment in favor of the
Defendants on all claims. On appeal, the Plaintiffs challenge
the entry of summary judgment.
& Procedural History
Samuel Himsel has farmed in rural Hendricks County his entire
life. His sons, Cory and Clinton, also make their living
farming in the county. In 2012, the three decided to start a
hog-raising operation, and, in January 2013, they formed 4/9
Livestock. The Individual Himsel Defendants are the sole
members of 4/9 Livestock. The Individual Himsel Defendants
decided to locate the 4/9 Livestock operation at 3042 North
425 West in Danville (the Farm), which property had been in
their family for more than two decades. Samuel's parents
acquired this farmland in the early 1990s, and the land had
been used for agricultural purposes since at least 1941.
Between at least 1994 and 2013, the Farm had been used
consistently for crops.
In February 2013, Samuel submitted a rezoning petition to the
Hendricks County Area Plan Commission to rezone 58.42 acres
of farmland on the Farm. The land was zoned agricultural
residential (AGR), and Samuel petitioned for it to be rezoned
agricultural intense (AGI), which allows for CAFOs. Following
a public hearing on March 12, 2013, at which Richard Himsel
spoke in opposition to the rezoning, the Plan Commission
unanimously recommended approval of the requested rezoning.
In doing so, the Plan Commission made the following written
(1) The comprehensive plan[:] The Commission finds that the
proposal does substantially comply with the recommendations
of the Hendricks County Comprehensive Plan…. The
Comprehensive Plan expressly lists confined animal feeding
operations as a recommended land use in the area under
(2) Current conditions and the character of current
structures and uses in each district[:] The Commission finds
that the proposal is consistent and compatible with the
character of current structures and uses in the zoning
district…. The area is a well-established,
longstanding agricultural community. Furthermore, the
proposed use is an agricultural use expressly recognized in
the current Comprehensive Plan.
(3) The most desirable use for which the land in each
district is adapted[:] The Commission finds that the proposal
does represent the most desirable use for which the land is
adapted. The 1983, 1998, and 2008 Comprehensive Plans have
consistently recommended that the area be for agricultural
use. This represents a longstanding community desire to see
this area remain agricultural in character. The proposed use
is expressly listed in the current Comprehensive Plan as a
characteristic and desirable use in this area.
(4) The conservation of property values throughout the
jurisdiction[:] The Commission finds that the proposal does
conserve property values….
(5) Responsible development and growth[:] The Commission
finds that the proposal does represent responsible
development and growth. The area under consideration is an
integral part of the historically rural agricultural west
side of Hendricks County. The last three Comprehensive Plans
have recognized this part of the County as being
characteristically agricultural and have reserved the area
for agricultural uses in the future. This reflects the
County's longstanding desire to, in general, plan for
urbanization of its east side while maintaining the rural
character of its agricultural west side. The proposal under
consideration is consistent and compatible with the
County's long term land use planning goals.
Appellants' Appendix Vol. IV at 107-08.
On March 26, 2013, the County Commissioners unanimously
approved the rezoning and adopted the Plan Commission's
findings. After the property was rezoned, it was transferred
from Samuel to 4/9 Livestock. The Plaintiffs did not appeal
the rezoning decision. Thereafter, before improvement
location permits were granted, the Plan Commission held two
public hearings regarding the siting, design, and
construction plans for the Farm's CAFO, which included
the construction of two 4000-hog production buildings.
Additionally, in May 2013, the Indiana Department of
Environmental Management (IDEM) approved two permits to
construct and operate the CAFO buildings on the Farm. The
Plaintiffs did not appeal IDEM's permit approvals.
On July 1, 2013, 4/9 Livestock entered into a hog finishing
contract with Co-Alliance. Under the contract, Co-Alliance
would supply the hogs and 4/9 Livestock would raise them. 4/9
Livestock was to operate as an independent contractor. Once
fully grown, which was within about six months, the hogs
would be shipped out of the CAFO by Co-Alliance and a new
batch of young hogs would come into the CAFO. On July 19,
2013, 4/9 Livestock and PNC Bank entered into a convertible
line of credit note for a seven-figure amount to finance the
construction of the CAFO. Shortly after construction was
completed, the CAFO buildings were populated with hogs on
October 2, 2013. Since the CAFO began operating there have
been no violations cited by either IDEM or Hendricks County
relating to its operation.
The Plaintiffs live in the immediate vicinity of the Farm.
Richard and Janet Himsel (collectively, the Himsel
Plaintiffs) moved into their home in 1994. Their home is on a
farm where the Himsel Plaintiffs raised livestock and grew
crops until 2000, when they retired and sold much of their
farmland. Richard grew up on this farm, and the farmhouse has
stood since 1926. Robert Lannon built his home in 1971 and
married his wife Susan in 1974. They have never farmed on
their property but are accustomed to the usual smells that
come with living in farm country, having lived there for over
The Farm and the Plaintiffs' properties are located in
western Hendricks County in an area that the county's
Board of Commissioners has expressly designated for
agricultural purposes since the adoption of the county's
first comprehensive plan in 1983. The nearest town is over
five miles away, and the nearest residential subdivision is
about two miles away.
Agricultural uses have dominated in the area surrounding the
Farm and the Plaintiffs' properties. In addition to row
crops, those uses have included raising livestock such as
cattle, hogs, chicken, goats, and sheep. In fact, Richard
Himsel and his father raised livestock, including 200 head of
hogs and 200 head of cattle at a time, in the area directly
adjacent to their home for years. For about two years,
Richard had a confinement building on his property,
approximately 700 feet from his home, that held up to 400
head of hogs. This building was destroyed by fire and not
rebuilt. Another farmer, John Hardin, has a hog confined
feeding operation located near the Plaintiffs'
properties. Hardin has been operating his hog farm for many
years and periodically applies hog manure to fields as close
as twenty feet from the Himsel Plaintiffs' home.
On October 6, 2015, the Plaintiffs filed the instant action
raising claims of nuisance, negligence, and trespass against
the Defendants and seeking a declaratory judgment that the
Agricultural Canon is facially unconstitutional. The
Defendants' answer raised the RTFA as an affirmative
defense. The State of Indiana intervened to defend the
constitutionality of the challenged statute. Thereafter, the
Plaintiffs amended their complaint to add as-applied
constitutional challenges to application of the RTFA as a
defense in this case.
The Defendants moved for summary judgment with respect to all
claims in November 2016, and the Plaintiffs then filed a
motion for summary judgment on the constitutionality of the
RTFA and the Agricultural Canon. The motions were extensively
briefed and supported by a significant amount of designated
evidence. On September 27, 2017, the trial court held a
summary judgment hearing regarding both motions.
On October 24, 2017, the trial court entered a summary
judgment order with extensive findings and conclusions. The
court granted summary judgment in favor of the Individual
Himsel Defendants but otherwise denied the summary judgment
motions. Thereafter, on November 22, 2017, the Defendants
filed a motion to correct error. Briefs in support of the
motion were filed by putative amici IALF and Hendricks
County. The trial court granted the amici's motions for
leave to appear. Thereafter, on December 21, 2017, the