Judge reverses CAFO exception

Officials violated Indiana's Open Door law and acted without enough evidence when approving an 8,000-head hog operation near Reddington in October 2005.

That was the ruling issued Friday by Special Judge Andrea McCord of Lawrence Circuit Court that reversed the Jackson County Board of Zoning Appeals' decision in favor of Talara Lykins.

McCord wrote that the BZA violated the Indiana Open Door Law and that the record showed insufficient evidence for its ruling during an Oct. 11, 2005, meeting in Vallonia.

One of the 10 petitioners against the BZA, Melinda Sexton of Redding Township, said she is happy with McCord's decision.

"The group is pleased with the careful and comprehensive findings of the court and how the court has ordered the BZA to conduct substantial reconsideration of the CAFO's permit," Sexton said Wednesday afternoon. She referred other questions to the group's attorney, Peter King, who could not be reached for comment.

Tamara B. Wilson, an attorney with King at Cline, King and King in Columbus, however, said their clients are pleased with the ruling and look forward to the issue's resolution.

"She (McCord) went through a detailed analysis of each issue that was sent to her by the appeals court," Wilson said. "They're very gratified."

John Rothring, attorney for the BZA, declined to comment.

What's next for the hog farm likely rests with Lykins. Options could include asking the BZA to review evidence already presented; appealing McCord's decision, which could be the lengthiest action; filing a new request, which could be one of the speediest options; or dropping the matter entirely.

Joe Miller, an attorney representing Lykins, said Wednesday his client has not yet decided how to proceed.

"She wants to reweigh the options and consider what to do," Miller said, explaining he had not received the ruling until Wednesday morning. "She is disappointed, and I am disappointed."

Under state law, Lykins has 30 days in which to file an appeal if that's the option she chooses.

"The way I read it is (McCord) is sending it back to the BZA because the findings of facts were not supported by the evidence presented at the hearing," Miller said. "I think they (BZA members) could take a new look at the evidence or rehear the entire thing. That's how I'm reading it."

Wilson, however, said she interprets McCord's ruling to say that the process must begin anew.

"Because Judge McCord said the Open Door Law violation voided the BZA ruling, it would be an indication to me that we're starting over," Wilson said.

Still pending with the Indiana Court of Appeals is a ruling on an appeal of a Marion County environmental law court decision on an appeal of IDEM's approval of Lykins' federal discharge permit for the proposed hog farm.

"I'm hoping we get within the next week the ruling on that one, too," Miller said. "However that turns out could push us one way or another in a decision on this ruling."

Not a shovel of dirt has been turned toward building the proposed hog farm off North County Road 1200 East because of a number of challenges to local and state decisions clearing the way for Lykins' operation.

McCord's ruling that the BZA violated the Open Door law centers on her finding that the board conducted an executive or closed session within its public hearing. She wrote the closed session was not scheduled and that its topic of discussion failed to comply with exceptions that allow executive sessions. State law also prohibits holding closed sessions during a scheduled public meeting.

What McCord ruled was an executive session was a conversation that followed a vote that rejected Lykins' petition for a special exception. Once the closed session took place, a second vote yielded approval for her request.

During that discussion, McCord noted, BZA members talked away from microphones used to record their meeting and that their discussion was inaudible to the public. McCord added that BZA members ignored several warnings from Building Commissioner Mike Weir that the public could not hear their deliberations.

"The BZA was required to conduct its hearing in a manner such that the public could be fully informed about the government's business," McCord wrote in her ruling.

"The BZA's off-record conference cannot be cured by the BZA taking its final vote on the record," she added.

Concerning the evidence cited by the BZA in its findings, McCord said the "record does not demonstrate substantial probative evidence addressing air emissions, property values and building design for severe site limitations relating to soil type" and that the BZA's "dismissal of the petitioners' evidence without substantial and probative rebuttal evidence in the record is arbitrary and capricious ..."

(EDITOR's NOTE: This story was updated at 10:55 a.m. Thursday, June 18, to reflect that an appeal of IDEM's approval of a federal discharge permit is pending in the Indiana Court of Appeals.)