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FOR PUBLICATION

ATTORNEY FOR APPELLANTS: NEAL R. BLYTHE Mefford & Weber, P.C. Auburn, Indiana

ATTORNEY FOR APPELLEE: JEREMY W. BROWN Burry, Herman, Miller & Brown, P.C. Decatur, Indiana

IN THE COURT OF APPEALS OF INDIANA
RICK COOK & DANIEL FUNK, Appellants, vs. ADAMS COUNTY PLAN COMMISSION, Appellee. ) ) ) ) ) ) ) ) )

No. 01A04-0611-CV-646

APPEAL FROM THE ADAMS CIRCUIT COURT The Honorable Frederick A. Schurger, Judge Cause No. 01C01-0605-PL-9

August 15, 2007 OPINION - FOR PUBLICATION

RILEY, Judge

STATEMENT OF THE CASE Appellants-Respondents, Rick Cook and Daniel Funk (the Appellants), appeal the trial court's Order, denying their Verified Petition for Writ of Certiorari in favor of Appellee-Respondent, the Adams County Plan Commission (the Plan Commission). We reverse. ISSUE The Appellants raise one issue on appeal which we restate as follows: Whether the trial court erred when it found that a one-year lease for real estate which contained provisions for an annual automatic renewal and a notice of cancellation, constituted a long term lease in accordance with the Adams County Zoning and Land Use Ordinance Regulation of Intensive Livestock Operations. FACTS AND PROCEDURAL HISTORY On March 1, 2006, Jonas L. J. Hilty (Hilty) submitted an application to the Plan Commission, requesting a permit to construct a hog finishing facility capable of holding a thousand hogs at any given time. Along with his application, Hilty submitted drawings of the finishing unit as well as drawings of the waste storage system. Pursuant to the Adams County Zoning and Land Use Ordinance Regulation of Intensive Livestock Operations (the Ordinance), Hilty's proposed livestock operation required ownership or a long term lease of at least one acre of land per ten hogs, or one hundred acres, for spreading the hogs' manure. See Ordinance 2-16-3(C) and 2-162(B)(3). Hilty only owned twenty acres upon which he could spread some of the waste. Therefore, prior to the submission of his application, he entered into a lease for an 2

additional one hundred and twenty-five acres with Ruth Wilder (Wilder). The terms of this lease, provide in pertinent part: The term of this Lease shall be for a period of 1 year from the date hereof and shall be automatically renewed for each successive year thereafter unless notice of cancellation is given by certified mail at least 180 days before the anniversary date hereof, which is the expiration date of this agreement, and a copy of this notice of termination forwarded to the [Plan Commission]. The purpose of this Lease is to comply with the "Intensive Livestock Ordinance" of Adams County, Indiana. [Hilty] herein is conducting or proposes to conduct an intensive livestock operation on his real estate near to the real estate subject of this Lease and the purpose of this Lease is to provide [Hilty] with sufficient application lands as defined in section 14(h) of such "Intensive Livestock Ordinance." The parties recognize that this is a condition precedent to the granting of a permit to [Hilty] to conduct an intensive livestock operation on his real estate and it is the intention of both parties that the Lease be executed and presented to the Administrators of the [Plan Commission] to promote and induce the [grant] of such a permit to [Hilty]. It is understood and agreed that this Lease shall not be cancelled, altered or amended without the consent of the Administrator of Zoning in Adams County, Indiana. It is further understood and agreed that an executed copy of this Lease shall at all times be kept on file with the Administrator of Zoning in Adams County, Indiana, and that such Administrator shall be provided with a copy of all notices of termination of this Lease as and when the same are [served] upon a party hereto and that the Administrator of Zoning in Adams County, Indiana shall be provided with a copy of all proposed renewal leases and alterations thereunto prior to the execution of the same. (Appellants' App. p. 69). On April 20, 2006, the Plan Commission conducted a public hearing on Hilty's application. Appellants, together with several other neighbors, attended the hearing and expressed their concern with Hilty's proposal. As homeowners proximate to Hilty's hog farm, they encouraged the Plan Commission to deny Hilty's application based on the 3

smell of the hogs, the decrease in property values, the hauling of manure on county roads, flies, and the possibility of contaminated well water. At the end of the hearing, the Plan Commission unanimously approved Hilty's application to erect a hog finishing facility. On May 19, 2006, Appellants filed a Verified Petition for Writ of Certiorari alleging that the Plan Commission issued Hilty's permit illegally as his application did not fully comply with the Ordinance. On June 7, 2006, the Plan Commission filed its response and Motion to Dismiss. On September 25, 2006, the trial court heard arguments and, on October 10, 2006, the trial court entered its Order dismissing Appellants' Petition for Writ of Certiorari. In its Order, the trial court held, in pertinent part: 7. That [Appellants] argue that said lease is not a long term lease and that said lease is for a period of one year only and is not being policed by the [Plan Commission]. 8. That [the Plan Commission] argues that said lease was prepared by the Plan Commission Office and was prepared for the purpose of complying with the [] Ordinance. [The Plan Commission] further argues that the language in the lease provides that it can only be canceled with at least a 180 day notice before the anniversary of the covenants and conditions of the lease shall immediately subject [Hilty] to a revocation of his permit to conduct an intensive livestock operation on his real estate. *** 12. The [c]ourt having reviewed the Lease Agreement attached as Exhibit F to the [Appellants'] Verified Petition for Writ of Certiorari is not "illegal" as provided by [I.C.

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