Five neighbors have brought a lawsuit against the Whitley County Board of Zoning Appeals, the Board of Commissioners and Joe and Sarah Lopez, the owners of a confined feeding operation in Whitley County.
The neighbors – Jeffery and Penny Braun, Jim and Muriel Pliett and Stephanie Craven – own homes just south of the Lopez’s chicken farm located at 5300 N. 250 West, Columbia City.
In a lawsuit filed in the Whitley Circuit Court Sept. 20, 2017, the neighbors request judicial review of a final zoning decision made by the Board of Zoning Appeals Aug. 22, 2017. They also allege that the rezoning of certain real estate from “agricultural” to “agricultural production” approved by the commissioners was “arbitrary and capricious.”
On June 6, 2016, the Board of Zoning Appeals granted the Lopez farm a special exception for a confined feeding operation, or a CFO, on a portion of the 94.5-acre property.
A CFO is a type of animal feeding operation generally defined by the confinement of animals in buildings or lots with less than 50 percent vegetation or ground cover for 45 days or more in a year as well as the number of animals – more than 30,000 chickens for example.
The Indiana Department of Environmental Management controls if a farm can become a confined feeding operation while local zoning dictates where it can locate within a county.
In 2017, Lopez applied to IDEM to operate a CFO consisting of 160,000 broiler chickens. Lopez also applied to rezone the property from an agricultural district, or an AG, to an agricultural production district, or an AGP. The commissioners later approved the rezoning.
According to Whitley County Zoning Ordinance, AG is intended for agricultural use while permitting residential development. AGP is intended to provide a land use category for intensive agricultural uses and to recognize certain needs of the agricultural community. The goal of this land use district would be for enhanced right-to-farm protection, recognition by community and to promote agricultural economic development.
The five neighbors allege that the Board of Zoning Appeals had no jurisdiction to grant the farm the special exception back in 2016 for a CFO that exceeded 3,001 animal units when their real estate was zoned AG. Additionally, they allege that rezoning the farm was contrary to the county zoning ordinance.
The Board of Zoning Appeals, commissioners and Joe and Sarah Lopez deny the allegations against them. They allege that the neighbors’ allegations related to the 2016 special exception are time barred and that the Board of Zoning Appeals and commissioners acted in compliance with the law.
Judge Monte Brown, of the DeKalb County Superior Courts No. 2, has been appointed as a special judge to handle the case. A pre-trial conference is scheduled for 8 a.m. Feb. 21 at the DeKalb County Courthouse.