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Friday, December 08, 2006
Ind. Decisions - More on yesterday's CAFO opinion
The Muncie Star-Press reports today on yesterday's Court of Appeals opinion in Elizabeth Thomas v. Oolman Dairy , which was a not-for-publication opinion- the ILB summary is here (3rd case, along with links to earlier entries). Seth Slabaugh writes:
HARTFORD CITY -- A ruling by the Indiana Court of Appeals on Thursday helps a proposed 2,000-head Dutch dairy CAFO and rejects the arguments of remonstrator Liz Thomas.The court found that the Blackford County Board of Zoning Appeal's decision to deny Oolman Dairy LLC a hearing on its second application for a special exception was "arbitrary, capricious, and contrary to law."
The 15-page ruling, authored by Judge John G. Baker of Bloomington, affirmed the judgment of Special Judge Marianne Vorhees of Delaware County. Judge Michael P. Barnes, South Bend, and Judge Margret G. Robb, West Lafayette, concurred.
Hundreds of remonstrators oppose the $13.5 million concentrated animal feeding operation (CAFO), asserting it will stink, pollute, make noise, attract rodents, employ low-paid immigrants, lower surrounding property values and impair quality of life.
The BZA conducted a hearing on the proposed CAFO on May 24, 2005, then tabled the case until June 7. After learning on that date that the BZA's attorney planned to recommend denial of the project on grounds that it failed to comply with performance standards, Gerwin and Marinke Oolman, formerly of The Netherlands, withdrew their application. Twenty-one days later, they filed a second application.
The BZA voted 3-2 to conduct a public hearing on the second application. But just before the start of that hearing, on Aug. 23, 2005, the BZA voted to terminate the hearing on grounds that the second application was similar to the first, and having the hearing would be unfair to the remonstrators and unduly burdensome to the BZA.
"The BZA's refusal to allow Oolman a public hearing on its second application and its failure to vote on either application has denied Oolman due process of law," Vorhees ruled. "The court further finds the BZA's refusal to hear evidence and to vote on the second application was arbitrary and capricious."
She ordered the BZA to schedule a new public hearing and to either approve or deny the project.
The BZA did so this past Aug. 16, voting 3-2 to approve the requested special exception.
"An agency action is arbitrary and capricious if it is 'willful and unreasonable, without consideration and in disregard of the facts and circumstances in the case, or without some basis which would lead a reasonable and honest person to the same conclusion,'" Judge Baker wrote.
Posted by Marcia Oddi on December 8, 2006 07:27 AM
Posted to Administrative Law | Environment | Ind. App.Ct. Decisions