OPD v. Town of Argos: Court Blocks Moratorium on Confined Feeding Operations

We recently secured a major zoning victory for a poultry producer in Marshall County, Indiana resulting in a court order blocking a harmful CFO moratorium from going into effect and awarding attorneys’ fees for the producer.

Our client, Off Property Development (“OPD”) approached the county building department to begin the building permit application process for a regenerative egg production barn on a site just outside the Town of Argos in the early winter of 2020. After hearing local rumors about the proposed barn, the Town of Argos decided to impose a moratorium on any new construction for livestock barns. At a meeting on a Tuesday night in February 2021, the Argos Plan Commission suggested that the Town Council create and pass a moratorium on CFOs for a two-mile radius around the town. The actual language of the moratorium was not reduced to writing until Wednesday morning. On Wednesday night, the Town Council voted to enact the moratorium. When OPD went back into the county office, it was told that while it had submitted everything necessary for the building permit, the county would have to wait until the town’s moratorium was lifted to issue the permit since the site was within the two-mile buffer zone around Argos.

We filed suit on behalf of OPD and sought a preliminary injunction to have the moratorium declared void. The Court held a hearing and found in OPD’s favor. A moratorium is a new zoning ordinance and therefore must satisfy all the procedural requirements set forth by Indiana Code.

The Court ruled that the town violated Indiana law in numerous ways. First, to properly amend a zoning ordinance, a plan commission must hold an advertised public hearing. The notice must include the time and date of the hearing, the geographical area to which the new proposal applies, a summary of the subject matter of the proposed change, the place where a copy of the proposal is on file for examination prior to the public hearing, and how and when objections or comments can be made. The Town of Argos Plan Commission failed to meet any of these statutory requirements for its Tuesday night meeting. No advance notice of the moratorium was given to anyone and no members of the public were present to comment on the proposed moratorium. The Town Council likewise did not give proper notice of its intent to vote on the moratorium on Wednesday night. The Court found this process violated the Indiana statutory requirements and due process protections for a new zoning ordinance.

The Court rejected the town’s only witness’s suggestion that the zoning change was in the public’s “best interests”. The Court also rejected the town’s argument that it had “substantially complied” with the law because a member of OPD happened to attend the Wednesday night town council meeting. Since OPD had no idea the moratorium had been proposed (or even exactly what it was, since no text was made available), no one was prepared to speak against it at the meeting.

We asked the Court to award OPD’s attorneys’ fees since we believed the town’s actions were an obvious violation of Indiana law. In July, we sent a letter to the town, detailing the deficiencies in the plan commission and town council procedures with regard to the passage of the moratorium, and asking the town to voluntarily lift the moratorium. The town refused, requiring OPD to incur additional attorneys’ fees by filing suit in August. The Court held that the town’s defenses to be wholly without support in Indiana statutory and case law and held the town’s position was frivolous as a matter of law.

The Court awarded OPD its attorneys’ fees and ruled the moratorium was void and of no force or effect. The town did not appeal the October 29, 2021 decision and now OPD can finally obtain its building permit for the poultry barn. A copy of the decision is available here. This decision should be a reminder to county or municipality zoning bodies that new ordinances must be passed in compliance with the procedure set forth by our General Assembly in the Indiana Code. Producers and consultants facing zoning issues should contact their attorney for legal advice.