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Himsel v. Himsel

Court of Appeals of Indiana

April 22, 2019

Janet L. Himsel, Martin Richard Himsel, Robert J. Lannon, Susan M. Lannon, Appellants-Plaintiffs,
v.
Samuel Himsel, Cory M. Himsel, Clinton S. Himsel, 4/9 Livestock, LLC and Co-Alliance, LLP, Appellees-Defendants, and State of Indiana, Appellee-Intervenor.

          Appeal 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 Gary, Indiana

          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 Indianapolis, Indiana

          Attorneys for Amicus curiae indiana pork producers association, inc. Daniel P. McInerny Andrew M. McNeil Indianapolis, Indiana

          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.

          ALTICE, JUDGE.

         Case Summary

         [¶1] 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), [1] 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 technology."

         [¶2] 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 Himsel Defendants.

         [¶3] 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.

         [¶4] We affirm.

         Facts & Procedural History

         [¶5] 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.

         [¶6] 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 findings:

(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 consideration.
(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.

         [¶7] 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.

         [¶8] 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.

         [¶9] 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 forty years.

         [¶10] 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.[2] The nearest town is over five miles away, and the nearest residential subdivision is about two miles away.

         [¶11] 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.

         [¶12] 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.

         [¶13] 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.

         [¶14] 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 Plaintiffs ...


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