FUSSNER v. HULSBOSCH DAIRY FARM LLC (2025)

MEMORANDUM DECISION

[1] Jeff Fussner, Dana Fussner, Thomas Fussner, Terry Fussner, Julie Fussner, Mike Muckerheide, Mike Liesing, Marcin Liesing, Bob Brown, Eric Brown, Jim Bedal, Lillian Bedal, Bill Angle, Ron Weiler, Bob Meer, Steve Smith, Greg Smith, Jim Knecht, Brenda Knecht, Brian Munchel, Chris Fussner, Peggy Fussner, John Fussner, and James Fussner (collectively, “Petitioners”) appeal the trial court's denial of their petition for judicial review regarding the decision made by the Rush County Board of Zoning Appeals (“BZA”) to grant a special exception to Hulsbosch Dairy Farm LLC (“Hulsbosch Dairy”) allowing Hulsbosch Dairy to build a confined feeding operation ¹ that houses dairy cows (“Dairy CFO”). Petitioners, who are landowners of properties located within ten miles of the proposed Dairy CFO, raise four issues for our review, which we revise, reorder, and restate as:

1. Whether the trial court erred by concluding Petitioners lacked standing to bring a petition for judicial review;

2. Whether the trial court erred by concluding Petitioners failed to exhaust administrative remedies prior to petitioning for judicial review;

3. Whether the trial court erred by concluding:

3.1. the Rush County Zoning Ordinance allowed the special exception Hulsbosch Dairy requested from the BZA; and

3.2. substantial evidence supported the BZA's decision to grant the special exception.

We affirm.

Facts and Procedural History

[2] Hulsbosch Dairy operates a dairy farm in Decatur County, and in early 2024, it received an offer to purchase land in Rush County that it could use to expand its operations. Hulsbosch Dairy determined it could use the land to build a Dairy CFO for 6,500 cows, and on March 14, 2024, Hulsbosch Dairy applied to the Rush County Area Plan Commission for an improvement location permit to build the Dairy CFO. The application requested a special exception pursuant to sections 7.11.3 and 7.11.4 of the Rush County Zoning Ordinance (“Zoning Ordinance”). Those sections governed land use in areas zoned for agricultural use. Section 7.11.3 provided:

Additional Requirements to Obtain an Improvement Location Permit for CFO (Without Application for a Special Exception)

(a) The proposed CFO must be located at least one (1) mile from all public schools.

(b) The total number of animals to be housed on the parcel shall be no more than the total animal units equivalent to eight thousand (8000) head of swine ․ with a deviation of no more than the lesser of ten percent (10%) or six hundred (600) head which may occur temporarily in order to compensate for mortality rates.

(c) The applicant must score at least four hundred forty-five (445) points on the CFO Site Scoring System located in Appendix B.

* * * * *

(e) Upon receipt of all required information, documentation and fees, the Area Plan Director shall render a decision within five (5) business days of submission.

(1) If the application is approved, the Area Plan Director shall provide appropriate permits.

(2) If the application is denied, applicant may apply for a Special Exception IF all requirements set forth in 7.11.4) [sic] below are met.

(Appellant's App. Vol. 2 at 206-07.) The applicable animal unit conversion chart listed the equivalent of 8,000 swine as 2,235 dairy cows. Section 7.11.4 stated:

Additional Requirements to Obtain an Improvement Location Permit for CFO (With Application for a Special Exception)

a. Applicants who receive an unfavorable decision from the Area Plan Director pursuant to 7.11.3) [sic] above, due to an inadequate score on the CFO Site Scoring System, may file an application for Special Exception if:

(1) Applicant scored at least three hundred forty-five (345) points or,

(2) Applicant scored less than three hundred forty-five (345) points, but such score was the result of a previous [Indiana Department of Environmental Management (“IDEM”)] violation.

(Id. at 207.)

[3] Hulsbosch Dairy's application reported that while the Dairy CFO was to be in a district zoned “A-3 – Regulated Livestock” and scored above the required minimum number of points according to the Rush County Site Scoring matrix for issuance of a permit, a special exception was needed because of the large number of cows the Dairy CFO would hold. (Id. at 151.) The application disclosed that a hog CFO already existed on the premises but reported that operation would be closed and decommissioned in five to ten years. BZA added consideration of the application to the agenda for its April 3, 2024, meeting.

[4] Petitioners hired counsel to represent them in opposition to the application. Ahead of the BZA meeting, Petitioners’ counsel emailed Rush County Area Plan Commission Executive Director Michael Holzback (“Director Holzback”):

Mike-I've been hired to oppose an application for special exception filed by Hulsbosch Dairy Farm LLC. I reviewed the Application and the Zoning Ordinance and have a couple questions. As I read the Ordinance, there is no provision allowing for a special exception for the number of cows. Section 7.11.3 provides that no special exception is needed to get a permit for 2,235 cows (the equivalent of 8,000 swine). Here, the applicant is seeking 6,500 cows and states that is why a special exception is being requested. Section 7.11.4 provides that a special exception is only available to an applicant that receives an unfavorable decision from the Area Plan Director due to an inadequate score on the CFO Site Scoring System. Did you issue an unfavorable decision? The application states they scored 470-a favorable score under the Ordinance. Am I missing something? It appears they do not have the ability to request a special exception. Even if their score was inadequate, the Ordinance does not allow a special exception for the number of cows. If they want more than 2,235 cows, it would seem they need to be requesting a variance, not a special exception.

(Id. at 167.) Director Holzback replied:

Even though the score sheet was adequate, I could not issue a permit because of the number of cows exceeded the limit of 2235 head. The permit application must come before the Board of Zoning Appeals for their discretion and approval because of the 6500-cow request. My approval of the permit was declined for this reason until or if the board approves the application.

(Id. at 168.)

[5] At the BZA hearing, Glen Hulsbosch, one of the owners of Hulsbosch Dairy, explained the company wanted to build the Dairy CFO in Rush County because the proposed site “is a great location surrounded by a lot of great straw farmers that we purchase straw from.” (Id. at 42.) He indicated Hulsbosch Dairy would purchase products from local farmers to feed the dairy cows housed in the Dairy CFO and would give cow manure to the local farmers to use in fertilizing their fields. He asserted “the area has [an] ample amount of water to support the community as well as our farm.” (Id.) Hulsbosch stated the Dairy CFO would have a “digester” designed to “reduce odor by over 50 percent” and would employ around forty-five people. (Id. at 44.) Hulsbosch Dairy's counsel also spoke at the hearing. She noted the Rush County Comprehensive Plan listed as two of its goals “to encourage agricultural development and to increase the tax base.” (Id. at 45.) She explained that in addition to the BZA, Hulsbosch Dairy was seeking the necessary permits from various other governmental entities, including IDEM. She explained Hulsbosch Dairy will pay approximately $400,000 annually in property taxes, and it will provide “good jobs” that will pay “about 20 bucks an hour, plus benefits.” (Id. at 54.) Hulsbosch Dairy's counsel also described the digester and tunnel ventilation system the Dairy CFO would utilize to reduce odor. In addition, Hulsbosch Dairy's counsel presented a report from the Indiana Business Research Center ² that concluded “[r]egulated livestock operations, contrary to many perceptions, can have a small positive effect on nearby residential property values in rural areas.” (Appellee's App. Vol. 2 at 46.) An engineer also spoke on behalf of Hulsbosch Dairy regarding the Dairy CFO's plans for ensuring “cow comfort” and managing the odor and manure. (Appellant's App. Vol. 2 at 67.)

[6] Petitioners’ counsel argued Zoning Ordinance did not allow for a CFO designed to house more than 2,235 dairy cows. In addition, he asserted the Dairy CFO was not in the public interest. He maintained the Dairy CFO would decrease Petitioners’ property values and submitted “a summary of 17 studies, 17 articles, 13 legal cases, all of which discuss how these CFOs negatively impact property values.” (Id. at 77.) He also discussed issues related to odor and environmental concerns. Many other concerned citizens spoke at the BZA hearing. Some of these citizens supported granting the special exception and spoke highly of Hulsbosch Dairy's Decatur County operation. Others opposed granting the special exception and raised concerns about the amount of water the Dairy CFO would use.

[7] BZA voted to approve Hulsbosch Dairy's application for a special exception, and it issued a written order laying out its findings:

Section 10.2.4 of the Rush County Zoning Ordinance authorizes the BZA to approve Special Exceptions and further requires that “․ the granting of the Special Exception will not adversely affect the public interest.”

The BZA finds that the granting of the Special Exception will not adversely affect the public interest. The public interest refers to the wellbeing of the Rush County community as a whole. While there may be some incidental complaints associated with construction of the Dairy in the immediate area, as a whole, the citizens of Rush County will benefit from the economic development opportunities this project brings. The evidence at the public hearing demonstrated the Dairy would provide economic benefits to the public through local property taxes and additional employment opportunities. Any nuisances involved are of the type expected from CFOs, which are clearly allowed/allowable uses under the Rush County Zoning Ordinance in the district where the proposed Dairy is to be located. Further, the use of a digester at the Dairy will provide environmental benefits.

The BZA determined that the following was an appropriate additional condition for such approval, which must be satisfied and will be placed on the project as a written commitment to run with the land:

(1) The existing hog farm must be closed in accordance with [IDEM] regulations within 10 years, or by APRIL, 2034.

The BZA finds that the granting of this special exception, subject to the additional condition above, will not adversely affect the public interest.

(Id. at 32-33) (emphasis in original). The written order also listed BZA's factual findings in accordance with section 10.2.5 ³ of the Zoning Ordinance. BZA found:

The proposed project is located in an “A-3” district. All underlying zoning district requirements are being met as set forth in § 7.11, et seq. The Dairy meets all developmental standards for CFOs in A3.

* * * * *

Economic impacts on adjoining properties generally in the district: The BZA determines that, given that the parcel is located in an A3 district where agricultural development, including CFOs, is intended and encouraged, and given the precautions the applicant has taken with regard to buffering and manure management, that any negative impacts will be minimized on the adjoining properties. The district in general will recognize positive economic impacts. Any alleged negative impacts shall be more than off-set by the gains to the community as a whole with regard to increased employment, economic activity, and environmental stewardship.

* * * * *

Odor impacts on adjoining properties generally in the district: The applicant has met the odor abatement procedures set forth in the Rush County Zoning Ordinance and the odor abatement techniques set forth in its application. Furthermore, the use of a tunnel-ventilated barn and an anaerobic digester will remove the gas which could theoretically cause odor impacts. The Dairy will not cause problematic odor impacts in the A3 district. Thus, the BZA finds the applicant has met the requirements to mitigate odor to the level anticipated and expected in an A3 district.

* * * * *

The BZA finds that all refuse concerns have been addressed by compliance with IDEM regulations, the Dairy's agreement to inject manure with attachments, and by use of the digester.

* * * * *

The BZA finds that the applicant has more than met the required screening and buffering requirements as set forth in the Rush County Zoning Ordinance, and will maintain screening and buffering pursuant to practice standards set forth by the Natural Resource Conservation Service (“NRCS”) and has, therefore, satisfied the requirement.

* * * * *

Given that the Dairy will be located in an A3 zoning district, where agricultural development is expected and encouraged, and the surrounding lands are also zoned A3, the BZA finds that this use is compatible with adjacent properties.

(Id. at 33-35) (emphasis in original).

[8] On May 2, 2024, Petitioners filed a verified petition for judicial review in the Rush County Superior Court. Petitioners argued that BZA's decision was contrary to law because Zoning Ordinance did not allow a special exception for a CFO designed to house more than 2,235 dairy cows and that “BZA approved [Hulsbosch Dairy's application] despite evidence confirming that the CFO would adversely affect the public interest and is incompatible with adjacent properties and other properties in the district.” (Id. at 191.) Hulsbosch Dairy filed a brief in opposition to Petitioners’ petition, and the trial court held a hearing regarding the petition on December 20, 2024. In an order issued after the hearing, the trial court took judicial notice of the fact that the County Commissioners amended Zoning Ordinance after Petitioners initiated their petition for judicial review. The amendment provided: “There is not set limit on the total number of animals to be housed on a parcel if the applicant applies for a special exception. The language in 7.11.3(b) regarding the number of animals is only applicable when the applicant does not apply for a special exception.” (Appellee's App. Vol. 2 at 65.)

[9] On January 17, 2025, the trial court issued an order dismissing and denying Petitioners’ petition for judicial review. The trial court initially concluded Petitioners lacked standing:

51. The petitioners’ rights are neither enlarged nor diminished by the granting of the special exception, especially here, where the land at issue already houses a working livestock CFO.

52. The petitioners did not offer any actual evidence that their property values will decrease if the special exception were to be granted. Petitioners’ allegations regarding decreased property values were nebulous and speculative at best, and do not meet the specific injury requirements necessary to have standing.

53. The petitioners failed to show individualized, pecuniary harm from the granting of the special exception, and, as a result, the petitioners lack standing.

54. The petition for judicial review should be dismissed for lack of standing.

(Appellant's App. Vol. 2 at 19.) Notwithstanding its dismissal for lack of standing, the trial court also determined the Petitioners failed to exhaust their administrative remedies:

68. Petitioners were required to appeal to the BZA [Director] Holzback's decision that the 6,500 cow Dairy Farm fit within the meaning of a CFO under the zoning ordinance, albeit one that requires a special exception.

69. Petitioners failed to exhaust their administrative remedies.

70. Petitioners have waived any argument that [Director] Holzback's decision that the Dairy Farm was eligible for a special exception under the Zoning Ordinance was in error.

(Id. at 23.)

[10] The trial court also determined that Petitioners’ petition for judicial review failed on the merits. It concluded that

the [Zoning] Ordinance intended for 7.11.4 to apply to the uses like the Dairy Farm, where the development standards are met but the farm exceeds the animal numbers in 7.11.3. This was the interpretation espoused by the Director and understood by the BZA. It is a fair and reasonably sound reading of the [Zoning] Ordinance and should be upheld.

(Id. at 27.) In addition, the trial court found BZA's findings made in accordance with section 10.2.5 of Zoning Ordinance were supported by substantial evidence.

Discussion and Decision

1. Standing

[11] Petitioners initially assert the trial court erred by concluding they lacked standing to file a petition for judicial review of BZA's decision. We review a trial court's decision dismissing a petition for judicial review because of a lack of standing de novo. Pflugh v. Indianapolis Hist. Pres. Comm'n, 108 N.E.3d 904, 908 (Ind. Ct. App. 2018), trans. denied. “Standing is a judicial doctrine that focuses on whether the complaining party is the proper party to invoke the trial court's jurisdiction.” Liberty Landowners Assoc., Inc. v. Porter Cnty. Comm'rs, 913 N.E.2d 1245, 1250 (Ind. Ct. App. 2009), trans. denied. When standing is in question, we must analyze that issue first “because if a person has no standing, then the Court has no jurisdiction to determine the merits.” Pflugh, 108 N.E.3d at 908.

[12] Indiana Code chapter 36-7-4 “establishes the exclusive means for judicial review of zoning decisions ․ made by a board of zoning appeals[.]” Ind. Code § 36-7-4-1601. Indiana Code section 36-7-4-1603(a) lists the categories of individuals who have standing to pursue a petition for judicial review and subsection (2) states:

A person aggrieved by the zoning decision who participated in the board hearing that led to the decision, either:

(A) by appearing at the hearing in person, by agent, or by attorney and presenting relevant evidence; or

(B) by filing with the board a written statement setting forth any facts or opinions relating to the decision.

Regarding participation, Petitioners’ counsel submitted a list of the individuals he represented to BZA ahead of the hearing. Therefore, Petitioners appeared at the hearing by counsel. Moreover, some of Petitioners also wrote letters to BZA opposing the Dairy CFO.

[13] To be “aggrieved” as required by Indiana Code section 36-7-4-1603(a)(2), “the petitioner must experience a ‘substantial grievance, a denial of some personal or property right or the imposition ․ of a burden or obligation.’ ” Bagnall v. Town of Beverly Shores, 726 N.E.2d 782, 786 (Ind. 2000) (quoting Union Twp. Residents Ass'n, Inc. v. Whitley Cnty. Redev. Comm'n, 536 N.E.2d 1044, 1045 (Ind. Ct. App. 1989)). BZA's “decision must infringe upon a legal right of the petitioner that will be ‘enlarged or diminished by the result of the appeal’ and the petitioner's resulting injury must be pecuniary in nature.” Id. (quoting Union Twp. Residents Ass'n, 536 N.E.2d at 1045.) The injury must be a special injury and not one common to the community. Id. The trial court determined Petitioners lacked standing because they “failed to show individualized, pecuniary harm from the granting of the special exception[.]” (Appellant's App. Vol. 2 at 19.) However, all Petitioners own property within ten miles of the proposed site for the Dairy CFO, and their counsel submitted excerpts from several studies, news articles, and legal cases to support his argument that CFOs decrease the value of surrounding properties. Thus, Petitioners presented evidence of a unique injury. We hold Petitioners are “aggrieved” within the meaning of Indiana Code section 36-7-4-1603(a)(2) and the trial court erred by dismissing Petitioners’ petition for judicial review because of a lack of standing. See, e.g., Sexton v. Jackson Cnty. Bd. of Zoning Appeals, 884 N.E.2d 889, 894 (Ind. Ct. App. 2008) (holding petitioners had standing to challenge board of zoning appeals’ decision to approve CFO because they appeared at the board's meeting and presented evidence showing the CFO would decrease their property values).

2. Exhaustion of Administrative Remedies

[14] Petitioners also challenge the trial court's conclusion that their petition for judicial review failed because they did not exhaust their administrative remedies. Indiana Code section 36-7-4-1604(a) provides that a person pursuing a petition for judicial review may do so “only after exhausting all administrative remedies available within the board whose zoning decision is being challenged.” The failure “to timely object to a zoning decision or timely petition for review of a zoning decision ․ waives the person's right to judicial review[.]” Ind. Code § 36-7-4-1604(b). We enforce the duty to exhaust administrative remedies strictly “so ‘[p]remature litigation may be avoided, an adequate record for judicial review may be compiled and [the board may] retain the opportunity and autonomy to correct [its] own errors[.]’ ” Willow Haven on 106th Street v. Nagireddy, 252 N.E.3d 418, 423 (Ind. 2025) (quoting In re R.L., 246 N.E.3d 257, 261 (Ind. 2024)) (all but last set of brackets in Willow Haven).

[15] Zoning Ordinance section 3.5 lays out the procedure by which the Executive Director may decide that a use of land not explicitly authorized by virtue of the land's zoning designation is otherwise permitted and the process for appealing the Executive Director's decision to BZA. It states:

Any use not listed is considered not permitted unless the Executive Director decides otherwise. The Executive Director shall have the authority to determine other uses, in addition to those specifically listed, which may be permitted when such other uses are similar to those listed. This decision is appealable to the Board of Zoning Appeals. Proposed uses that require repeated interpretation shall be brought before the Area Plan Commission for ordinance inclusion or clarification. The Director's interpretation of any ordinance may be appealed to the Board of Zoning Appeals and is subject to the judicial review process.

(Appellee's App. Vol. 2 at 67-68.) See Ind. Code § 36-7-4-918.1(1) (“A board of zoning appeals shall hear and determine appeals from and review ․ any order, requirement, decision, or determination made by an administrative official, hearing officer, or staff member under the zoning ordinance[.]”). With respect to the time period for appealing the Executive Director's decision to BZA, “[s]uch appeals shall be taken within a reasonable time, not to exceed 30 days by filing with the Executive Director and with the Board of Zoning Appeals a notice of appeal specifying the grounds thereof.” (Appellee's App. Vol. 2 at 73.)

[16] The trial court concluded that “Petitioners were required to appeal to the BZA Holzback's decision that the 6,500 Dairy Farm fit within the meaning of a CFO under the zoning ordinance, albeit one that requires a special exception” and they “failed to exhaust their administrative remedies.” (Appellant's App. Vol. 2 at 23.) However, we disagree with the trial court's conclusion that Petitioners should have initiated their own administrative appeal after receiving Director Holzback's reply to Petitioners’ counsel's email asking why Director Holzback denied Hulsbosch Dairy's application for a special exception. Executive Director Holzback's reply was informal and did not lay out any procedures or steps for Petitioners to follow to appeal his determination. Moreover, Petitioners appeared at the BZA hearing by counsel and opposed Hulsbosch Dairy's request for a special exception. Petitioners’ counsel argued Zoning Ordinance did not allow for a CFO as large as the proposed Dairy CFO to be built. Thus, the issue of the proper interpretation of the ordinance was presented to BZA, and BZA rejected Petitioners’ interpretation of the ordinance when it granted Hulsbosch Dairy's request for a special exception. Zoning Ordinance allows for judicial review of BZA's decision, and the trial court erred by concluding Petitioners failed to exhaust their administrative remedies.

3. Judicial Review of BZA Decision

[17] Moving to the trial court's decision on the merits of Petitioners’ petition for judicial review, our standard of review regarding such decisions is well settled:

When we review the BZA's action, we apply the same standard as the trial court. That is, we may not reverse the BZA's decision unless an error of law is demonstrated. Neither may we substitute our judgment for that of the BZA unless the appellant demonstrates illegality in the BZA's action. We may not try the facts de novo or substitute our judgment for that of the BZA, nor may we reweigh the evidence or reassess the credibility of the witnesses. Instead, we must accept the facts as found by the BZA. However, we conduct a de novo review of any questions of law decided by BZA.

Riverside Meadows I, LLC v. City of Jeffersonville, Ind. Bd. of Zoning Appeals, 72 N.E.3d 534, 538 (Ind. Ct. App. 2017) (internal citations omitted). A trial court will grant a petition for judicial review only if the party seeking judicial review demonstrates the zoning decision was:

(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(2) contrary to constitutional right, power, privilege, or immunity;

(3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

(4) without observance of procedure required by law; or

(5) unsupported by substantial evidence.

Ind. Code § 36-7-4-1614(d).

3.1. Interpretation of Zoning Ordinance

[18] Petitioners disagree with the conclusion of BZA and the trial court that Zoning Ordinance allowed Hulsbosch Dairy to seek a special exception from BZA to build the Dairy CFO. “Interpretation of a zoning ordinance is a question of law. The ordinary rules of statutory construction apply in interpreting the language of a zoning ordinance.” Story Bed & Breakfast, LLP v. Brown Cnty. Area Plan Comm'n, 819 N.E.2d 55, 65 (Ind. 2004) (internal citation omitted). “Words are to be given their plain, ordinary, and usual meaning, unless a contrary purpose is shown by the statute or ordinance itself.” Cnty. of Lake v. Pahl, 28 N.E.3d 1092, 1103 (Ind. Ct. App. 2015), trans. denied. We strive to give every word effect and meaning if possible, and we will not hold any part “meaningless if it can be reconciled with the rest of the ordinance.” Id.

[19] “An ordinance is ambiguous if it is ‘susceptible to more than one interpretation.’ ” Noblesville, Ind. Bd. of Zoning Appeals v. FMG Indianapolis, LLC, 217 N.E.3d 510, 515 (Ind. 2023) (quoting Anderson v. Gaudin, 42 N.E.3d 82, 85 (Ind. 2015)). “Because zoning ordinances limit the free use of property, they are in derogation of the common law and must be strictly construed.” Cracker Barrel Old Country Store, Inc. v. Town of Plainfield ex rel. Plainfield Plan Comm'n, 848 N.E.2d 285, 290 (Ind. Ct. App. 2006), trans. denied. We interpret zoning ordinances “to favor the free use of land and will not extend restrictions by implication. Hence, when a zoning ordinance is ambiguous, it should be construed in favor of the property owner.” Id. (internal citation omitted).

[20] Petitioners argue sections 7.11.3 and 7.11.4 of Zoning Ordinance are unambiguous and the trial court's interpretation of those sections goes against their plain and ordinary meaning. Section 7.11.3 of Zoning Ordinance provides that a person may receive an improvement location permit without having to seek a special exception if “[t]he total number of animals to be housed on the parcel shall be no more than” 2,235 dairy cows. (Appellant's App. Vol. 2 at 206.) Section 7.11.3 also requires the proposed site to score above 445 points on the CFO Site Scoring System to receive an improvement location permit without seeking a special exception. If an applicant is not eligible to receive an improvement location permit without a special exception, section 7.11.4 applies. That section states:

Additional Requirements to Obtain an Improvement Location Permit for CFO (With Application for a Special Exception)

a. Applicants who receive an unfavorable decision from the Area Plan Director pursuant to 7.11.3) [sic] above, due to an inadequate score on the CFO Site Scoring System, may file an application for Special Exception if:

(1) Applicant scored at least three hundred forty-five (345) points or,

(2) Applicant scored less than three hundred forty-five (345) points, but such score was the result of a previous [Indiana Department of Environmental Management] violation.

(Id. at 207.) Petitioners interpret these provisions to mean that an applicant may apply for a special exception only “when the Plan Director issues an unfavorable decision due to an inadequate score on the CFO Site Scoring System.” (Appellant's Br. at 15.) Petitioners contend that because Hulsbosch Dairy's plan was rejected for a reason other than an inadequate score, BZA lacked the authority to give a special exception, and as a result, BZA's decision was “contrary to law and arbitrary and capricious.” (Id. at 16.)

[21] Hulsbosch Dairy argues, in contrast, that section 7.11.3 is meant to cover only when a CFO permit may be issued without the need for BZA to issue a special exception. The text of section 7.11.4 does not include a limit on the number of livestock a CFO may house, and Hulsbosch Dairy asserts that section 7.11.3's requirements are more restrictive than section 7.11.4's requirements because “without a special exception, there is no public notice or public hearing and no opportunity for the BZA to consider the project on a fact-specific basis or to add conditions to the approval (as the BZA here did).” (Appellee's Br. at 38-39.) Thus, Hulsbosch Dairy claims, a plausible purpose of section 7.11.3's size limitation is that, rather than imposing a limit on the size of all CFOs, it ensures that permits authorizing larger CFOs are subject to enhanced public scrutiny before they are issued.

[22] Because the text of Zoning Ordinance supports multiple interpretations, it is ambiguous. See, e.g., FMG Indianapolis, LLC, 217 N.E.3d at 515 (holding term “relocate” as used in zoning ordinance was an ambiguous term because it was susceptible to competing interpretations). Accordingly, we interpret the ambiguity in favor of Hulsbosch Dairy because Hulsbosch Dairy owns (or will own) the property where the Dairy CFO is to be built. See, e.g., id. at 515-16 (interpreting ambiguous zoning ordinance in favor of property owner).

[23] Moreover, we conclude Hulsbosch Dairy's interpretation of Zoning Ordinance aligns with the intent of the County Commissioners. See Siwinski v. Town of Ogden Dunes, 949 N.E.2d 825, 828-30 (Ind. 2011) (interpreting zoning ordinance by applying rules of statutory construction to ascertain the intent of the drafter). Zoning Ordinance and the Rush County Comprehensive Plan specifically promote the building of CFOs in Rush County. Section 7.11 of Zoning Ordinance emphasizes the promotion of agricultural uses, including CFOs, in the district where Hulsbosch Dairy wishes to build the Dairy CFO:

This district has been created to encourage the continuation of agricultural uses of land while discouraging the addition of single family housing by property owners who are not engaged in those agricultural activities. Larger livestock operations, including CFO's [sic] and other [IDEM] regulated activities may be permitted in this district as well [as] crop production and other traditional agricultural operations.

(Appellant's App. Vol. 2 at 205.) The Rush County Comprehensive Plan provides that “[a]griculture is a mainstay of the county” and lists “[a]dd more confined feeding operations” as one of the “[o]bjectives for future development in the County[.]” (Appellee's App. Vol. 2 at 87 & 93.) An interpretation of section 7.11.3 that imposes a hard limit on the total number of animals a CFO may house is inconsistent with this stated policy. In addition, after Petitioners filed their petition for judicial review, the Rush County Commissioners amended Zoning Ordinance to clarify that there is not a limit on the number of animals a CFO may house if the CFO receives a special exception from BZA. Presumably, the County Commissioners were aware of the controversy surrounding the Dairy CFO when they passed that amendment to Zoning Ordinance. See Rogers Group, Inc. v. Tippecanoe Cnty, 52 N.E.3d 848, 853 (Ind. Ct. App. 2016) (“[W]e presume that when our legislature amends a statute, it is aware of the history of the statute, including court decisions construing it.”), trans. denied. Therefore, we conclude BZA did not err when it interpreted Zoning Ordinance to allow the Dairy CFO.

3.2. Sufficiency of Evidence Supporting Special Exception

[24] Petitioners also assert BZA's finding that the special exception will not adversely affect the public interest was not supported by substantial evidence. “When analyzing whether an administrative decision is supported by substantial evidence, the reviewing court must determine from the entire record whether the agency's decision lacks a reasonably sound evidentiary basis.” Tipton Cnty. Bd. of Zoning Appeals v. Hope for the Hurting, 230 N.E.3d 322, 330 (Ind. Ct. App. 2024). A decision is supported by substantial evidence if there “is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. This means “substantial evidence ‘must be more than speculation and conjecture.’ ” Id. (quoting Terra Nova Dairy, LLC v. Wabash Cnty. Bd. of Zoning Appeals, 890 N.E.2d 98, 104 (Ind. Ct. App. 2008)).

[25] Petitioners contend BZA disregarded their concerns related to water availability and other “substantial evidence regarding the many negative impacts to the community including health problems, environmental problems, water contamination, and the negative impact on property values.” (Appellant's Br. at 19.) However, this argument is simply a request to reweigh the evidence, which we will not do. See, e.g., Melton v. Ind. Athletic Trainers Bd., 156 N.E.3d 633, 665 (Ind. Ct. App. 2020) (holding Board's findings were supported by substantial evidence and rejecting petitioner's argument “that the Board's decision was made without consideration of the facts she felt were important”) (emphasis in original), trans. denied.

[26] At the BZA hearing, Hulsbosch Dairy's counsel, Glen Hulsbosch, and an engineer all spoke in favor of granting the special exception. They estimated the Dairy CFO would pay approximately $400,000 in property taxes and create dozens of jobs. It will also create a market for local farmers to sell their products and be a source of organic fertilizer. In addition, Hulsbosch Dairy presented evidence related to the various measures it intended to institute to manage odor and manure from the Dairy CFO. The Dairy CFO will also comply with IDEM regulations. Moreover, several citizens complimented Hulsbosch Dairy's existing operation in Decatur County. Substantial evidence also supported BZA's conclusion that the Dairy CFO was compatible with adjacent properties because a CFO already exists on the land where the Dairy CFO is to be built and that land is zoned for agricultural activity. Therefore, we affirm the trial court's conclusion that the decision to grant the special exception was supported by substantial evidence. See, e.g., Ind. State Ethics Comm'n v. Sanchez, 18 N.E.3d 988, 994 (Ind. 2014) (holding administrative agency's finding that petitioner violated rule prohibiting the unauthorized use of State property was supported by substantial evidence).

Conclusion

[27] The trial court erred by concluding that Petitioners lacked standing and that they failed to exhaust their administrative remedies. However, the trial court correctly concluded Petitioners’ petition for judicial review should be denied. Zoning Ordinance allowed for the construction of a CFO designed to house over 2,235 dairy cows if the CFO received a special exception from BZA, and substantial evidence supported BZA's grant of a special exception for the Dairy CFO. Accordingly, we affirm the trial court.

[28] Affirmed.

FOOTNOTES

1.   Indiana Code section 13-11-2-40 defines a confined feeding operation (“CFO”) as any confined feeding of at least 300 cattle, 600 swine or sheep, 30,000 fowl, or 500 horses.

2.   The Indiana Business Research Center is a unit within the Indiana University Kelley School of Business. Its “mission is to empower communities and their leadership to build equitable and thriving regions through strategic insights, data and practical research.” Perma | About IBRC: Indiana Business Research Center: Indiana University (emphasis removed).

3.   Section 10.2.5 of the Zoning Ordinance states:Before any Special Exception shall be issued, the Board shall make written findings certifying that all applicable restrictions of the district in which the Special Exception is to be located have been followed, as well as such additional restrictions which the Board may see fit to impose. The Board shall ascertain that satisfactory provision and arrangement has been made concerning the following, where applicable:(a) Ingress and Egress to property and proposed structures thereon with particular reference to automotive and pedestrian safety and convenience, traffic flow and control, and access in case of fire or catastrophe;(b) Off-street parking and loading areas where required, with particular attention to the items in (1) above and the economic, noise, glare, or odor effects of the special exception on adjoining properties generally in the district;(c) Refuse and service areas, with particular reference to the items in (1) and (2) above;(d) Utilities, with reference to locations, availability and compatibility;(e) Screening and buffering of objectionable or unsafe views, odors, noises, or vibrations, with reference to type, dimension, and character;(f) Signs, if any, and proposed exterior lighting with reference to glare, traffic safety, economic effect, and compatibility and harmony with properties in the district;(g) Required yards and other open space;(h) General compatibility with adjacent properties and other property in the district.(Appellee's App. Vol. 2 at 76) (emphasis removed).

May, Judge.

Mathias, J., and Bradford, J., concur.