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Friday, March 03, 2006

Environment - "Dairy CAFO wins case against BZA"

"Dairy CAFO wins case against BZA" is the headline to a story by Seth Slabuagh in today's Muncie Star-Press. Some quotes:

HARTFORD CITY -- The Blackford County Board of Zoning Appeals illegally and unreasonably denied a public hearing to a proposed Dutch dairy CAFO (concentrated animal feeding operation), a judge ruled Thursday.

"The BZA's refusal to allow Oolman (Dairy) a public hearing on its second application and its failure to vote on either application has denied Oolman due process of law," ruled Special Judge Marianne Vorhees of Delaware Circuit Court 1. "The court further finds the BZA's refusal to hear evidence and to vote on the second application was arbitrary and capricious."

Vorhees ordered the BZA to schedule a new public hearing and to either approve or deny the application.

Gerwin and Marinke Oolman, formerly of The Netherlands, applied for a special exception to build a 2,000-cow dairy CAFO northeast of Hartford City.

Several hundred people oppose it, asserting the industrial-style operation will stink, pollute, make noise, attract rodents, employ low-paid immigrants, lower surrounding property values and impair their quality of life.

Consultants to the Oolmans have said the $13.5 million project would generate sales of at least $6 million a year and support veterinarians, milk processing plants, milk hauling, agricultural lenders, heifer and calf raising, and careers in dairy management. In addition, local farmers would supply more than 2,000 acres of feed and forage for the Oolmans.

The BZA did conduct a public hearing on May 24 on the Oolmans' first special exception application. The BZA was scheduled to vote on the matter at a June 7 meeting during which the Oolmans withdrew the application.

They did so after learning from BZA attorney Dean Young that he was going to advise BZA members to deny the application. The Oolmans had neglected to provide evidence during the hearing in May that they could meet noise, odor, air pollution, water pollution and various other local standards, Young determined.

The Oolmans then filed a second application, which the BZA voted not to hear at an Aug. 23 meeting attended by 200 or so opponents.

"There was a full and fair hearing" in May, Young advised the board in August. It was his opinion that the Oolmans should not be allowed to present new evidence. "Where does it end?" he asked.

But Vorhees ruled that Indiana law required a public hearing on all applications for special exceptions and also required the BZA to either approve or deny such applications.

The BZA allowed the Oolmans to withdraw their first application without placing any conditions on the withdrawal, Vorhees found.

The judge said the BZA could have refused to allow the Oolmans to withdraw the first application and voted to deny or approve it.

Vorhees explained why the refusal to grant the Oolmans a second public hearing was arbitrary and capricious. The BZA claimed it would be unfair to the remonstrators and unduly burdensome to the BZA to conduct the second hearing. The judge found no basis for that argument.

"The record in this case reflects that the BZA set the second application for hearing, advertised and gave notice as required, and the remonstrators and Oolman representatives appeared for a public hearing on that evening," the judge wrote. "The BZA members were also present."

For background, see this ILB entry from Aug. 25, 2005. See also this entry from Sept. 20th, 2005, quoting a StarPress story that begins: "Blackford County commissioners felt threatened by the state's director of agriculture after the county rejected a proposed dairy CAFO (concentrated animal feeding operation)."

Posted by Marcia Oddi on March 3, 2006 09:56 AM
Posted to Environment | Ind. Trial Ct. Decisions | Indiana Government