Community Assistance for
Sustainable Livestock Farming:
A Citizen Guide for Reducing Community Impacts from
Industrial Livestock Operations
The goal of the Hoosier Environmental Council's Community Assistance for Sustainable Livestock
Farming (CASLF) project is to promote livestock production in Indiana that supports ecological,
human and animal health, local sustainability, community viability and an informed and engaged
citizenry. This Citizens' Guide was developed as part of the CASLF project to help groups and
individuals address local concerns about industrial livestock operations (ILO's) in their communities.
In addition to providing information about the adverse impacts of industrial livestock
production on public health, the environment, and rural economies, this Guide discusses how and
where to obtain relevant information, and how to utilize federal, state, and local regulations to protect
the environment, quality of life, and address community concerns.
We hope you find the information helpful.
The HEC Team
Published in September 2013 by:
The Hoosier Environmental Council
3951 N. Meridian, Suite 100
Indianapolis, IN 46208
317/685-8800
[email protected]
1
Table of Contents
WHAT IS AN INDUSTRIAL LIVESTOCK OPERATION?
I.
II.
AFOs, CFOs, CAFOs
What is an Animal Unit?
3
3
5
INDIANA'S INDUSTRIAL LIVESTOCK OPERATIONS (ILO's)
6
ENVIRONMENTAL, PUBLIC HEALTH AND COMMUNITY IMPACTS
9
I.
II.
III.
IV.
Threats to Water Quality and Human Health
Quality of Life Concerns
Air Quality and Human Health
Antibiotic Resistance
ECONOMIC IMPACTS
I.
II.
III.
9
10
10
11
12
Do ILOs Bring Jobs?
Do ILOs Generate Tax Revenue?
Do ILOs Increase Economic Development?
12
13
13
FACTS ABOUT ILO’S IN KOSCIUSKO COUNTY
14
WHAT'S THE ALTERNATIVE?
15
SOURCES OF INFORMATION
18
I.
II.
III.
IV.
Local Sources and Authorities
State Sources and Authorities
Federal Sources and Authorities
Additional Resources
18
18
19
20
UNDERSTANDING THE LEGAL FRAMEWORK
I.
II.
State and Federal Environmental Regulations
Zoning and Land Use Law
PROTECTING YOUR LEGAL RIGHTS
I.
II.
III.
IV.
V.
VI.
VII.
22
22
24
30
Hierarchy of Indiana Courts
Judicial Review
Declaratory Judgment
Action for Mandate
Citizen Enforcement Suits
Nuisance Actions
Actions for Trespass
30
30
31
32
32
33
34
2
WHAT IS AN INDUSTRIAL LIVESTOCK OPERATION?
I. AFOs, CFOs, and CAFOs
Traditional farms are increasingly becoming obsolete giving
way to industrial livestock operations (ILOs) where
livestock animals are raised in confinement at high stocking
densities to produce the highest output at the lowest cost.
Depending on their size, ILOs may also be called animal
feeding operations (AFOs), confined feeding operations
(CFOs), or concentrated animal feeding operations
(CAFOs) for federal and state regulatory purposes. These
terms are defined as follows:
Animal Feeding Operation
Under federal and state law, an AFO is defined as a livestock facility that raises animals in confinement for 45 days
or more during a 12-month period, and does not grow crops or other vegetation during the normal growing season
on more than 50% of the facility. The 45 days of animal confinement do not have to be consecutive, and the 12
month growing period need not correspond to the calendar year. In addition, the existence of crop growth is evaluated
during the season when the animals are confined. For example, a facility that operates as a winter feedlot, which then
grows crops during the summer months when animals aren’t confined, would still be considered an AFO because
crops or vegetation are not present when animals are in confinement. The number of animals confined is irrelevant
to the question of whether a facility is an AFO and, with few exceptions, AFOs are not subject to environmental
regulations.
Confined Feeding Operation
In Indiana, a CFO is as an AFO that confines at least 300 cattle, 600 swine or sheep, 30,000 poultry, or 500 horses.
In addition, an AFO that violates Indiana's water pollution control laws will be considered a CFO, subject to
regulation and enforcement for the violation.
Concentrated Animal Feeding Operation
CAFOs are CFOs that confine a greater threshold number of animals including: 700 mature dairy cows; 1,000 veal
calves; 1,000 cattle other than mature dairy cows or veal calves (heifers, steers, etc.); 2,500 swine when each weigh 55
pounds or more; 10,000 swine when each weigh less than 55 pounds; 500 horses; 10,000 sheep / lambs; 55,000
turkeys; 30,000 laying hens or broilers if the AFO uses a liquid manure handling system1; 125,000 chickens (other
than laying hens), if the AFO uses something besides a liquid manure handling system; 82,000 laying hens if the AFO
uses something besides a liquid manure handling system; 5,000 ducks if the AFO uses a liquid manure handling
system; OR 30,000 ducks if the AFO uses something besides a liquid manure handling system. As will be discussed,
1
In a liquid manure handling system, barns have a slotted floor for the manure to fall through, either into a gutter or a concrete storage
pit. The waste may either stay in the concrete holding pit located directly under the slotted floor, or may be periodically pumped into
to a larger outside storage pit. If an outside storage pit is used, it may be constructed in the earth as a “lagoon” or as an above ground
“pit” made of commercial steel or concrete.
3
CAFOs with demonstrated pollutant discharges to waterways are subject to federal regulation under the
Clean Water Act (CWA).
Table 1: Threshold Number of Animals in CFOs or CAFOs
Livestock
CFO
CAFO
Mature dairy cows
Calves
All other cattle (heifers,
steers)
Swine (55 pounds or
more)
Swine (less than 55
pounds)
Laying hens or broilers2
with liquid manure
system
Laying hens without
liquid manure system
All other chickens
without not liquid
manure system
300—699
300—699
300—699
700+
1,000+
1,000+
600—2,499
2,500+
600—2,499
10,000+
30,000
30,000+
30,000—81,999
82,000+
30,000—124,999
125,000+
How Many ILO's Are There?
The U.S. Department of Agriculture estimates that there are slightly more than one million farms with livestock in
the U.S. Roughly 212,000 of those farms are likely to be ILOs where animals are kept and raised in confinement.
Although the number of ILOs has declined since 2003, the total number of animals housed per operation has
continued to grow because of expansion and consolidation of the industry. According to U.S. EPA, approximately
20,000 ILOs are CAFOs, but only 8,000 of these are subject to federal regulation.
2
Chickens farmed for eggs are called laying hens or layers. Chickens farmed for meat are known as broilers.
4
5
II.
What is an "Animal Unit?"
The relative sizes of all animal farms can be compared regardless of their different types by calculating their equivalent
animal units. An "animal unit" is a calculation based on the average live weights of different livestock species. Table
1 summarizes animal units for 17 farm animals by designating the value of "1.000" to represent 1,000 pounds of live
weight. Based on this system, a farm with 350 mature dairy cattle would be the equivalent "size" of a facility with
3,000 finishing pigs and 2,000 nursery pigs.
Table 2: Equivalent Animal Units Based on Live Weights
6
INDIANA'S INDUSTRIAL LIVESTOCK OPERATIONS (ILO'S)
Livestock raised in Indiana includes approximately 870,000
cows and calves, 3 million hogs and pigs, and more than 42
million birds (chickens, turkeys, and ducks) per year.
Approximately 80% of these animals are raised on industrial
livestock operations. In Indiana, there are roughly 2,500
regulated CFOs and CAFOs, as well as scores of AFOs that
are not regulated at all.
According to USDA Census data, Indiana ranks at the top of
the charts in many categories of animal production. Our state
is one of the leading poultry producers, coming in third
nationally for egg production with 24 million laying hens, 22
million of which are raised on industrial livestock operations.
We also lead the country in hog production, ranking fifth
nationally with more than 3 million hogs raised in Indiana. At
least 2 million of these hogs are raised on industrial livestock operations. Other top categories include pullets and
turkeys for which we are the fifth and seventh largest producer in the country, respectively.
Table 3: Largest Production Categories in Indiana
Livestock
Layers
Hogs and Pigs
Pullets3
Turkeys
Quantity Raised in
Indiana
Quantity raised on ILOs
in Indiana
U.S. Rank
24,238,513
3,669,057
6,928,062
5,971,548
22,540,590
1,904,805
Not documented4
Not documented
3
5
5
7
Like most states, the trend in Indiana agriculture is to move away from small diverse farms toward large industrial
operations. For example, in 2007, the number of CAFO/CFO permits approved in Indiana was roughly the same as
it was ten years prior, but the number of animal units included in these permits was more than twice what it had been
ten years ago.5 Indeed, the size of a typical livestock facility today often exceeds 10,000 animal units, but prior to 1991,
the combined size of all CFOs approved in a year was less than 10,000 animal-units.
As indicated in the following map and chart, most CAFOs and CFO's are concentrated in the north-central region of
the state with the highest concentrations in Carroll, Decatur, Jay, Kosciusko, Randolph, Wabash and White counties.
Collectively, these seven counties are home to 769 of Indiana’s 2,500 CAFO and CFOs or 30 percent of the state’s
permitted industrial livestock operations. Based on recent Census data, that means the mere .03 percent of Indiana’s
population who live in these seven counties are exposed to a disproportionate amount of pollution coming from 1/3
of the state’s regulated industrial livestock operations.
3
A pullet is a young female chicken.
The 2007 USDA Agriculture Census data does not include data in the pullet or turkey category that is broken down by size of
operation.
5
Indiana Business Research Center, IU Kelly School of Business, Major Livestock and Poultry Operations across Indiana: a Census
of CFOs and CAFOs (2008) available at http://www.incontext.indiana.edu/2008/march/1.asp.
4
7
8
9
ENVIRONMENTAL, PUBLIC HEALTH AND COMMUNITY IMPACTS
I. Threats to Water Quality and Human
Health
Based on government data, we know that the leading
source of water contamination in Indiana is E. coli,
which indicates that animal waste is present in our
water bodies. The presence of E. coli is due, in part, to
releases of human waste from combined sewer
overflows (CSOs), sanitary sewer overflows (SSOs)
and failed septic systems, but most of the
contamination is from the state's industrial-scale
livestock operations. This is evidenced by the sheer
volume of waste generated by livestock in Indiana, as
much untreated manure as that produced by 87 million
people — nearly 14 times the population of Indiana.
This is not unusual as livestock typically produce at
least three times the amount of waste generated by humans. Indeed, a single ILO with 5,000 pigs is estimated to
produce the same amount of raw sewage as a town of 20,000 people.
Waste from ILOs can enter a water body in a variety of ways: typically as runoff, or as a discharge or spill. For
example, it is well understood that farms can apply manure to crops as fertilizer, but the amount of manure that
CAFOs and CFOs generate will typically exceed the fertilizer needs of the operation. Any excess manure applied to
crops washes away with rain or melting snow and runs off into a nearby waterway, contaminating it with raw sewage.
Similarly, the large volume of manure produced on these operations must be stored until it can be used as fertilizer.
When the storage pits leak, leach or overflow, untreated animal waste washes into a nearby waterway or leaches
directly into ground water. This is especially dangerous given the many Hoosiers that rely on groundwater in untreated
private wells for their primary source of drinking water. In addition, in Indiana many drinking water utilities rely on
surface water intakes or reservoirs to supply the resources for urban and suburban drinking water, so the risk from
contaminated water is not limited to rural residents.
10
It is well known that animal waste contains high levels of phosphorus and nitrogen as well as pathogens like E. coli
and parasites which is why human waste is treated. Yet, under current
policies, livestock waste does not have to be treated, is minimally
controlled, and rarely monitored causing it to contaminate the water
bodies it enters. For example, in 2009 a massive spill of 4.5 million
gallons of raw, untreated animal waste from a large hog CAFO
contaminated the Mississinewa River and resulted in wide-spread fish
kills and hundreds of thousands of dollars in clean up fees. Another
example, in 2010, a hog producer in Randolph County land applied
more than 232,000 gallons of untreated animal waste to a farm field
adjacent to Beaver Creek. The field was never planted and after heavy
rains, the manure was swept into Beaver Creek and finally to the
Mississinewa River. This spill resulted in another fish kill of over
100,000 fish.
The effects of water contamination from animal waste are widespread.
As a result of continued discharges, spills and runoff of untreated
livestock waste, more than 7,000 lake acres are impaired for excess
phosphorus which can cause exponential algal growth, and more than
16,000 acres of Indiana’s lakes are already impaired from excess algal
growth. In water, contaminants like phosphorus are known to cause
eutrophication and toxic blue-green algae blooms which kill fish and
other aquatic life, and can be harmful to human health. In fact, the Indiana State Department of Health (ISDH)
closes numerous beaches each summer due to high concentrations of blue-green algae, and generally cautions
Hoosiers recreating on any of Indiana’s lakes or reservoirs to avoid contact with visible algae or swallowing water
while swimming. This is because exposure to blue-green algae can lead to rashes, skin and eye irritation, nausea,
stomach aches, and numbness in fingers and toes, and can also be very dangerous for pets.
Other health risks associated with our waste-contaminated waters are equally serious. The numerous pathogens and
parasites, such as fecal coliform (E.coli) and other forms of coliform bacteria found in manure are easily communicable
to human populations. When these pathogens contaminate drinking water they can cause gastrointestinal illnesses,
kidney damage or failure, and in extreme cases, death. Currently, more than 12,000 stream miles in Indiana are
impaired with unsafe concentrations of pathogens. Nitrate contamination of drinking water, also caused by animal
waste, has been associated with hyperthyroidism, methemoglobinermia in infants, insulin-dependent diabetes,
increased incidence of stomach and esophageal cancers, and a risk of spontaneous abortions.
II. Quality of Life Concerns
In addition to this data linking Indiana's ILO's to water contamination, we have heard from Hoosiers who live in
communities with high numbers of ILO's that their traditional, rural way of life has been dramatically disrupted by
the stench of thousands of animals housed nearby. Some families who rely on well water as their primary source of
drinking water report that it smells like manure and is undrinkable. Several have reported that nearby streams often
have a “murky” or “frothy” look and smell like animal waste. Particularly ghoulish, some residents report that their
homes are infested with flies and permeated by the horrific smell of rotting, dead animals. Unfortunately, close
proximity to a factory farm also renders many homes uninhabitable, and substantially less valuable, thereby effectively
forcing families to live with these unbearable conditions.
III. Air Quality and Human Health
11
The health threats from industrial livestock production are
largely due to the tremendous amount of manure generated in
one place by a large number of animals -- waste is often
collected in anaerobic pits that, lacking oxygen, putrefy the
waste quickly. As the manure decomposes, gases are formed
which can spread to the neighboring community either from
large fans that pull these gasses out of the confinement barns
and disperse them into the air, open air manure lagoons or pits
that allow perpetual off-gassing, or when manure is sprayed
onto fields as fertilizer. Gasses produced include hydrogen
sulfide, ammonia, inhalable particulate matter and endotoxin.6
The resulting stench from these gasses can be unbearable, but
more concerning are the serious health effects they can create.
For instance, one of the most dangerous gasses produced,
hydrogen sulfide, can be harmful even at low levels. It is a
potent neurotoxin that can cause damage to the
brain and nervous system. People exposed to
concentrations of even 0.1-1 parts per million (ppm)
display neurobehavioral dysfunction, including
abnormal balance and delays in verbal recall.7 Its
effects are irreversible and can also include skin
rashes, seizures, comas, and even death.
Actual effects from the gasses produced on ILOs are
well-documented. In addition to nausea, headache
and vomiting, more than 30% of employees working
in CAFO facilities report serious respiratory
problems.8 One study found that Iowans living
within a two-mile radius of a 4,000-hog unit reported
more respiratory and other symptoms than a control
group of Iowans not living near a CAFO.9 Another
study showed that people living near North Carolina
hog CAFOs reported more confusion, tension, depression, and fatigue than did those not living nearby.10Also
concerning, a June 2006 study found that children who attend school near CAFOs may be at higher risk for asthma.
Students at the study school, located 1/2 mile from a CAFO showed a prevalence of physician-diagnosed asthma in
19.7% of cases; whereas only 7.3% exhibited asthma from the control school more than 10 miles away.11
IV. Antibiotic Resistance
6
Iowa State University and University of Iowa, College of Public Health, Iowa Concentrated Animal Feeding Operations Air Quality
Study, available at www.ehsrc.uiowa.edu/CAFOstudy.htm.
7
KH Kilburn, Evaluating Health Effects from Exposures to Hydrogen Sulfide: Central Nervous System Dysfunction, Environmental
Epidemiology and Toxicology (1999).
8
KJ Donham, The Concentration of Swine Production: Effects on Swine Health, Productivity, Human Health and the Environment,
Veterinary Clinics of North America: Food Animal Practice (2000).
9
KM Thu, et al., A Control Study of the Physical and Mental Health of Residents Living Near a Large-Scale Swine Operation, Journal
of Agricultural Safety and Health (1997).
10
S. Wing and S. Wolf, Intensive Livestock Operations, Health and Quality of Life Among East North Carolina Residents,
Environmental Health Perspectives (2000).
11
J. Kline and S. Sigurdarson, School Proximity to Concentrated Animal Feeding Operations and Prevalence of Asthma in Students,
Chest (2006).
12
Surprisingly, agriculture uses vastly more antibiotics than human medicine, including drugs from every major class of
antibiotics used in human medicine. In 2011 the Food and Drug Administration (FDA) reported that 80% of
antibiotics in the U.S. are sold for agricultural purposes.12 These antimicrobial drugs are fed to non-diseased livestock
in order to promote growth and to ward off stress, disease and health risks to animals living in confinement.13
However, this widespread use of antimicrobials has contributed to the evolution and global increase of antibioticresistant bacteria in humans.14 In fact, some human infections now resist multiple antibiotics; one example, methicillinresistant Staphylococcus aureus (MRSA), is a pathogen responsible for taking more lives each year than AIDS.
Antibiotic resistant infections are problematic because they require multiple rounds of increasingly stronger
antibiotics, which allow the infection to progress further than it might otherwise, leading to serious health
consequences. Unfortunately, pharmaceutical companies are not producing new treatments fast enough, resulting in
few or no treatment options for certain kinds of infections.
The livestock industry asserts that there is not enough scientific evidence to ban sub-therapeutic uses of antibiotics,
but the evidence is clear. Several DNA analyses of antibiotic resistant bacteria have indicated livestock as their source.
In addition, the American Public Health Association, the American Medical Association, the American Academy of
Pediatrics, the Infectious Disease Society of America, and the World Health Organization have all issued statements
calling for restrictions on sub-therapeutic uses of antibiotics in livestock.15
ECONOMIC IMPACTS
ILOs are often promoted locally through claims that they will bring economic vitality to the area. However, the
research shows otherwise. Loss of jobs, depressed property values, loss of income for local businesses and a huge
drain on county resources often result from ILOs moving into a rural area. In addition, a significant cost to counties
lies in the road and bridge upgrades and repairs necessitated by increased livestock and manure transport traffic.
I.
Do ILOs Bring Jobs?
12
Food and Water Watch, Antibiotic Resistance 101: How antibiotic Misuse on Factory Farms Can Make You Sick (2012) available at
www.foodandwaterwatc.org
13
M. Mellon, et. al., Hogging It: Estimates of Antimicrobial Abuse in Livestock, Union of Concerned Scientists available at
www.ucsusa.org.
14
M. Barza and S.L. Gorbach, The Need to Improve Antimicrobial Use in Agriculture: Ecological and Human Health Consequences,
Clinical Infectious Diseases (2002) available at www.journals.uchicago.edu/CID/journal/contents/v34nS3.text.html.
15
Food and Water Watch, Antibiotic Resistance 101: How antibiotic Misuse on Factory Farms Can Make You Sick (2012) available at
www.foodandwaterwatc.org
13
Instead of being independent entrepreneurs, many farmers are now contract growers. Unfortunately, a farmer who
contracts with a corporation to build and operate a CAFO actually ends up being more like a facilities manager than
a farmer. Rather than create jobs for the local economy, this system tends to outsource work and reduce local jobs.
This is due primarily to the highly mechanized nature of the industrial livestock industry that requires less manual
labor. Indeed, studies show that every CAFO worker replaces nearly three independent family farmers.16 In addition,
what jobs do exist on ILOs typically come with low wages
and undesirable working conditions, leaving them staffed
by itinerant workers who spend little money in the
communities where they work.
Local businesses that support farming are also negatively
affected by the growth of ILOs in their community.
Indeed, a Congressional Research Report found that
communities with industrial animal facilities had higher
rates of unemployment.17 This is because ILOs tend to
purchase feed and supplies through the corporation for
whom they raise the livestock rather than local businesses.
Several studies have reported that large-scale livestock
operations were more likely than smaller livestock farms
to bypass local supplies for inputs like feed and
equipment.18 In fact, an Iowa study found that more than
two-thirds (70 percent) of smaller livestock operations bought feed locally, but only two out of five (43 percent) largescale operations bought local feed.19 In addition, the livestock raised on ILOs are often slaughtered and processed
outside of the community at a facility owned by the agriculture corporation. This further degrades the local economy
and eliminates jobs as independent slaughterhouses, regional processing firms, local grain elevators, and local feed
and farm equipment dealers provide employment opportunities and invest money locally.
This is in sharp contrast to locally owned and locally controlled farms which create an economic “multiplier effect”
that occurs when farmers buy their supplies locally and the money stays within the community. Indeed, independent
family farms create 10% more permanent jobs, 20% more local retail sales, and a 30% increase in per capita income.20
II.
Do ILOs Generate Tax Revenue?
The answer is no. In fact, ILOs actually appear to place a burden on county governments. Proximity to an ILO can
reduce the value of a home by as much as 40%. This loss in value affects tax assessments and therefore county tax
revenues. In addition, ILOs do not pay for the damage they cause to county roads and infrastructure -- or for the
health costs, accidents and environmental damage. Instead, these are all financial drains that must be supported by
the community’s tax revenue. Finally, ILOs are also eligible for tax write-offs that can decrease the amounts of taxes
they pay locally.
III.
Do ILOs Increase Economic Development?
16
J.E. Ikerd, Economic Fallacies of Industrial Hog Production, available at www.ssu.missouri.edu/faculty/jikerd/papers/EconFallacies-Hogs.htm.
17
Wing and Wolf, Intensive Livestock Operations, supra.
18
Food and Water Watch, Factory Farm Nation: How America Turned It’s Livestock Farms into Factories (2012) available at
http://www.factoryfarmmap.org/wp-content/uploads/2010/11/FactoryFarmNation-web.pdf.
19
Food and Water Watch, Factory Farm Nation: How America Turned It’s Livestock Farms into Factories (2012) available at
http://www.factoryfarmmap.org/wp-content/uploads/2010/11/FactoryFarmNation-web.pdf.
20
K. Hudson and GRACE, Factory Farming: A Health and Sanitation Nightmare available at
www.factoryfarm.org/docs/lagrangespeech3600.pdf
14
Not likely. Large corporate agribusiness giants are vertically integrated, traditionally owning the livestock animals
before birth to post-market. These companies often contract with (or own) meatpacking plants to take the animals
for slaughter, effectively shutting out the small family farmer from earning a living. Partly in response to this shift in
production, the number of independent small farmers has decreased dramatically in the last two decades. Considering,
CAFO operations with gross incomes in excess of $900,000 spend less than 20% locally, while farms with incomes
under $100,000 spend 95% locally, this dramatic decline in small farmers decreases revenue available for local
economic development. Also, the undesirable aspects of living close to CAFOs effectively preclude new businesses
from relocating to a county. Studies indicate that concentration and industrialization of agriculture are associated with
economic decline, both locally and regionally.21 Finally, the cost of cleaning up the pollution caused by CAFOs rests
on local tax-payers, not on the CAFO. Essentially, local economies seem to subsidize the operations of CAFOs and
their large out-of-state corporations.
FACTS ABOUT ILO'S IN KOSCIUSKO COUNTY

Kosciusko County is the number 1 producer of pullets in the state, producing 1,329,663 chickens.

There are 17 times as many chickens (pullets) in Kosciusko County as there are people.

Kosciusko County is also the number 1 producer of ducks in the state with a total of 534,099.

There are approximately 75 regulated ILOs in Kosciusko County, making it 5th in the state.

At least 2013 acres of Pike Lake, 290 acres of Palestine Lake, 102 acres of Silver Lake, 146 acres of Beaver
Dam Lake, and 84 acres of Goose Lake are impaired with phosphorus. This is over 825 acres of lakes that
are impaired by phosphorus, likely from industrial livestock operations.

At least 10 miles of the Tippecanoe River are impaired for swimming due to E. coli likely from industrial
livestock operations.
21
P. Durrenberger and KM Thu, The Expansion of Large Scale Hog Farming In Iowa: The Application of Goldschmidt's Findings
Fifty Years Later, Human Organization (1996).
15
Locations of Regulated CAFOs and CFOs in Kosciusko County
WHAT'S THE ALTERNATIVE?
This industrialized form of agriculture tends to become
disarticulated from surrounding communities, resulting
in social inequities, poverty and a rage of attendant
social, economic and environmental pathologies . . . A
whole generation of research has demonstrated that it is
simply better for the social and economic fabric of rural
16
communities to have more farmers providing food than to have production concentrated in the hands of a
few.22
_______________________________________________
Indiana has always been a key center of agriculture for the country. It is now time for us to look for a sustainable
solution that nourishes everyone over the long term -- the farmer, local residents, consumers, and the earth. The
answer -- moving away from a commodity based system and returning to a local food system.
The local food system is one of the fast-growing, most promising markets in agriculture today and is based on one
central idea: when food is grown, processed, and sold locally, it is better for farmers, better for communities, better
for the environment, and -- in both taste and nutrition -- better for people. This is not new. In the early 1900s, almost
all agricultural systems were local systems, but with innovations in technology over the 20th century, most of the local
facilities, transportation, delivery systems and marketing connections have disappeared. Much of what remains is
designed for agricultural scales well beyond the needs of local food.
Generally, local food implies that all production, processing, and retail of food occurs within a specific locality, and
all production, processing, and retail are locally owned. Compared to food processed in the corporate commodity
system, local food not only travels a shorter distance from farm to plate, it shortens the "social distance" between
farmers and consumers, and it puts consumers more closely in touch with the food they eat. Consequently, people
who participate in the local food system enjoy a wide variety of benefits:
A local food system offers fresher, tastier, and more nutritious food
For consumers, local food is an opportunity not only eat fresher, tastier food, it is an opportunity to "vote with
dollars" for a more transparent food system that aligns with values of sustainability and community. Indeed, market
studies indicate that a primary reason people buy local food is because it tastes better and is fresher than food bought
at a grocery store. That's because food at the grocery store routinely travels from Florida, California, Mexico and
overseas -- on average, 1,500 miles from farm to plate.23 When food travels that far, it can spend days or weeks in
transit and, therefore, must be bred for shelf life and durability and/or treated with chemicals and preservatives. This
not only reduces taste and freshness but has led to declines in nutrition value.24
In contrast, food bought from a markers' market, CSA or coop may be as fresh as this morning eliminating the need
for chemicals and preservatives. Because foods begin to lose nutritional value at the moment of harvest, fresher local
foods retain more nutritional value and the farmer producing it has greater flexibility in selecting more flavorful, and
often more nutritional, breeds and varieties.
22
K.J. Donham, et. al., Community Health and Socioeconomic Issues Surrounding Concentrated Animal Feeding Operations,
Environmental Health Perspectives (2007) quoting Kendall Thu, Ph.D., of Northern Illinois University who specializes in food
systems and their relationship to the health of rural communities.
23
Iowa State University Extension, Using Organic Agriculture and Sustainable Crops and Livestock in the Local Food System, (Nov.
2005) available at http://www.leopold.iastate.edu/sites/default/files/pubs-and-papers/2005-11-using-organic-agriculture-andsustainable-crops-and-livestock-local-food-system.pdf.
24
Id. at 4 (indicating that foods cultivated for longer shelf life and higher yields are less nutritious than many traditional breeds and
varieties).
17
A local food system supports local
farmers and the local economy
Aside from taste and freshness, another top
reason consumer cite for buying local food
is to support local farmers. In 2002, farmers
earned their lowest real net cash income
since 1940.25 Indeed, nearly 90% of farm
households rely on off-farm income just to
get by while corporate agribusiness profits
have nearly doubled since 1990.26 By choosing to buy local, consumers "vote with their dollars" for a food system
that aligns with their values -- values such as family farms, community, local economy and sustainability. In doing so,
consumers help both local farmers and the local economy.
Studies suggest that roughly one-third of consumers will pay a 5-20% premium for locally grown vegetables and
meats, indicating the potential profitability of a local food system. 27 Combined with more labor-intense practices, a
local food system can generate many times the net return per acre as common commodity crops. 28 Moreover, data
indicates that only 20% of the average consumer food dollar (in a commodity system) contributes toward the farm
value of the food.29 However, a local food system features direct farmer-to-consumer marketing making it is possible
for the farmer to capture more of the consumer food dollar while still offering a competitive price.
Local food purchases also have the effect of bolstering the local economy. A Minnesota study revealed that, despite
over $866 million in the sale of regional farm products in 1997, the region still lost as much as $800 million because
of non-local consumer food purchases and farm input purchases.30 Even if a local food system could capture as little
as 1% of that loss, that would be $8 million that stays in the region to support local farms, communities, and towns.
The same study estimates that local food dollars cycle 2.3 times through the local economy, while dollars spent at
large, industrial farms only cycle 1.9 times.
A local food system builds lasting relationships among farmers, processors, retailers, and
consumers which strengthens the social fabric of a community
In addition to the economic benefits, many social benefits are realized in a community with a robust local food system.
Key among these are the relationships that local food systems build -- relationships that connect people, establish
lasting business ties and create a sense of place and identity. When shoppers know the farm that produces their food,
when they know a chef, a nutritionist, a city official, and neighbors who buy locally, they feel a stronger connection
and greater pride in place. Not surprisingly, communities with a strong sense of place can -- through farmers' markets,
local festivals, and local character -- develop attractive and profitable agritourism possibilities.
25
Id. (citing USDA, Farm income and balance sheet statistics in constant U.S. dollars, 1929-2002. Economic Research Service.
http://www.ers.usda.gov/data/farmincome/finfidmu.htm).
26
Id.
27
Leopold Center for Sustainable Agriculture, Eco-label Value Assessment: Consumer and Food Business Perceptions of Local Foods
(2003) available at http://www.leopold.iastate.edu/pubs/staff/ecolabels/index.htm.
28
Id.
29
Elitzak, Howard, Food Marketing Costs: a 1990's Retrospective, Economic Research Service, Food Review 23 (2003) available at
http://www.ers.usda.gov/publications/foodreview/septdec00/FRsept00e.pdf.
30
Meter, Ken, Finding Food in Farm Country, Crossroads Research Center (2001) available at www.crcwords.org/ff/pdf.
18
For example, the Kosciusko County Farmers' Market connects local consumers to local farmers three days a week
from May to October,31 and small farm coops and buying clubs such as Purple Porch Co-Op,32 Homestead Heritage,33
and Seven Sons Meat Company34 connect local farmers to local consumers year-round. Finally, a local food system
boosts food security defined as the "ability of all people to obtain a safe, culturally acceptable, nutritionally adequate
diet through a sustainable food system that maximizes community self-reliance and social justice.35"
A local food system is better for the environment
A clear environmental benefit from a local food system is the markedly reduced use of fossil fuels for transport. Foods
produced in a commodity system that travel across the country (or across oceans) before landing in a grocery store
aisle, require significantly more fossil fuels to transport them than to grow them. Indeed, a recent study found that
switching to a local food system would save 79-94% of the CO2 emissions from food transport versus non-locally
sourced foods.36 In addition, a local food system is typically correlated with organic and sustainable practices aimed
to provide cleaner water, soil conservation, odor reduction, and less pesticide and fertilizer use, wildlife diversity, and
respect for neighbors who live nearby.
A local food system success: Woodbury County, Iowa
In the middle of Iowa, the number-one hog producing state and hub of industrial agriculture, citizens have organized
to construct one of the nation’s most innovative and effective local foods programs. Their successful effort is
inspirational and provides a template for Indiana communities looking for a vibrant, economic development
opportunity. The community's story is told by Grist reporter, Tom Philpott in, In the farm belt, a look at the extremes of
agricultural production, which is available for download at http://grist.org/article/counties/.
31
Indiana's Agritourism and Farmers' Market Directory lists other examples of local foods opportunities in Kosciusko County at
http://www.in.gov/apps/ISDA_FarmersMarket/destination.aspx
32
123 Hill Street, South Bend IN -- offers online ordering with deliveries of milk, produce, eggs and meat when available.
33
5254 North 500 East, Kokomo IN 46901 -- a CSA which offers chicken, eggs, turkey, pork and dairy products including milk,
butter, yogurt and kefir.
34
15718 Aboite Road, Roanoke IN 46783 -- has several buying clubs in Indiana and the Chicago area and offers beef, chicken,
turkeys, pork with deliveries to these locations several times a year.
35
Community Food Security Coalition, What is Food Security? (2005) available at http://www.foodsecurity.org/views_cfs.faq.html.
36
Pirog, et. al., Food, Fuel and Freeways: an Iowa Perspective on HOw Far Food Travels, Fuel Usage, and Greenhouse Gas
Emissions, Leopold Center for Sustainable Agriculture (2001) available at http://www.leopold.iastate.edu/pubs/staff/ppp/index.him.
19
SOURCES OF INFORMATION
To be effective in communicating with decision-makers, you will need to understand details about proposed and
existing industrial livestock facilities of concern, all rules, regulations and laws that apply, as well as relevant economic,
social, geographic and environmental data. Also, the laws and policies of state and local government, including
incentives and regulations, play an integral role in promoting or discouraging a local food system. The following
resources will help you get started.
I.
Local Sources and Authorities



Land Title/Recorder of Deeds Offices
Municipal / County / Regional Government Offices including:
Planning Departments
Plan Commissions
Zoning Boards
Health Departments
Soil & Water Conservation Districts
Economic Development Offices
Make sure to find any local rules and ordinances for land use planning, zoning, health, manure management, and
natural resource management/protection. Also, request all public records maintained by these offices regarding the
at issue facility including permits, zoning/planning approvals, applications for permits and zoning approvals,
inspection reports, violation notices, appeals, and the like.
II.
State Sources and Authorities
Indiana Department of Environmental Management (IDEM)

Confined Feeding Control Law - Ind. Code § 13-18-10

Confined Feeding Operation Rule - 327 IAC 19

Concentrated Animal Feeding Operation Rule - 327 IAC 15-16

Manure Transport and Handling - 327 IAC 19-13-3

Spill Rule - 327 IAC 2-6.1

Open Dumping - Ind. Code § 13-30-2-1, Ind. Code § 36-9-30-35, and

329 IAC 10

Open Burning - Ind. Code § 13-30-2-1, Ind. Code § 13-17-9, and

326 IAC 4-1

IDEM's Guidance Manual for Indiana's Confined Feeding Program

IDEM's Virtual File Cabinet (VFC) available at http://www.in.gov/idem/6551.htm contains a
searchable database of public records maintained by agency on permitted facilities including permit
applications, inspection reports, violation notices, etc...
available at
http://www.in.gov/idem/4994.htm details the requirements of these regulations.
20

Indiana Office of the State Chemist
Fertilizer Applicator Certification Rule - 355 IAC 7-1-1 (applies to application of 4,000+ gallons of
manure from a CFO to land in Indiana)
http://www.isco.purdue.edu/fertilizer/index_fert.htm

Indiana Board of Animal Health
Disposal of Dead Animals Law - Ind. Code § 15-17-11 and 345 IAC 7-7
http://www.in.gov/boah/

Indiana Department of Natural Resources
Indiana's liability law - Ind. Code § 14-22-10-6 (allows for restitution for any release of pollutants
which results in the death of wild animals)
http://www.in.gov/dnr/

Indiana Department of Agriculture
Provides technical assistance to farmers to assess soil and water resource problems, recommend
solutions, develop conservation management plans, identify appropriate conservation practices,
supervise installation and maintenance of conservation practices. The ISDA also provides a directory
of Indiana agritourism and farmers' markets.
http://www.in.gov/isda/
http://www.in.gov/apps/ISDA_FarmersMarket/

Purdue University Extension
Provides information and expertise in agriculture, natural resources, and economic and community
development. A particularly useful resource is the Extension's Indiana Agritourism Resource
Guide which provides a list of available resources by county for organizations and agencies that offer
technical or financial assistance to persons wanting to start a new agribusiness.
http://www.extension.purdue.edu/extbusiness/stories/IN_Resource_Guide_2007.pdf (pages 1517 contain resource listings for Kosciusko County)
III. Federal Sources and Authorities

U.S. Environmental Protection Agency, Region V
Clean Water Act, Concentrated Animal Feeding Operation Rule - CWA § 502 and 40 CFR 122.23
See EPA's Technical Manual for CAFOs
available at http://cfpub.epa.gov/npdes/afo/info.cfm

U.S. Department of Agriculture
http://www.nrcs.usda.gov/wps/portal/nrcs/main/national/programs/

U.S. Geological Survey
http://water.usgs.gov/owq/

U.S. Centers for Disease Control
http://www.cdc.gov/nceh/ehs/Topics/CAFO.htm
21
IV. Additional Resources
The Omnivore's Dilemma
by Michael Pollan
In his book, Pollan asks, "What should we have for dinner?" He takes the reader on a journey defined by four
meals produced through four production systems: industrial, big organic, beyone organic, and hunter-gatherer.
Pollan's answers have profound political, economic, psychological, and even moral implications for all of us.
Foundations of Sand: Considering the Rationale for Factory Farming
by Dr. Bill Weida
Factory Farms have spread across the landscape of Canada and the U.S. on a string of claims that have misled
many communities. Weida reveals why the purported benefits of factory farms do not add up.
Pollution Shopping in Rural America and Canada: The Myth of Economic Development in Isolated
Regions
by Dr. Bill Weida
www.factoryfarm.org/docs/PollutionShopping_Update.pdf
Dr. John Ikerd's Papers
Dr. Ikerd is Professor Emeritus of Agricultural Economics at the University of Missouri. He has written many
accessible papers about rural communities and sustainable agriculture. Make sure to read, The Questions Rural
Communities Should Ask About CAFOs and Top Ten Reasons for Rural Communities to Be Concerned About Large-Scale,
Corporate Hog Operations
www.ssu.missouri.edu/faculty/jikerd/papers/default.htm
Cesspools of Shame
by the Natural Resources Defense Council and Clean Water Network
Documents how animal waste from factory farms threatens human health and our nation's rivers. A concise
handbook for activists.
www.nrdc.org/water/pollution/cesspools/cessinx.asp
Understanding CAFOs and Their Impacts on Communities
by the National Association of Local Boards of Health
A comprehensive report to assist local boards of health that have concerns about industrial animal farms in
their communities.
http://www.cdc.gov/nceh/ehs/Docs/Understanding_CAFOs_NALBOH.pdf
Putting Meat on the Table: Industrial Farm Animal Production in America
by the Pew Charitable Trust and Johns Hopkins Bloomberg School of Public Health
Provides a comprehensive analysis of the economic, environmental, human health and community impacts
of industrial livestock production, examines current policy and recommends specific policy change.
http://www.ncifap.org/
Concentrated Animal Feeding Operations (CAFOs): Assessment of Impacts on Health, Local
Economies and the Environment With Suggested Alternatives
by the Institute of Science, Technology and Public Policy, Maharishi University of Management
This report examines the impact of CAFOs on health, the economy and the environment by highlighting how
factory farms have impacted a rural community in Iowa. It also presents viable alternatives to farmers and
22
communities that allow the livestock industry to prosper while safeguarding and sustaining a community's
health, economic vitality and environmental resources.
http://istpp.org/pdf/istpp_cafo.pdf
Using Organic Agriculture and Sustainable Crops and Livestock in the Local Food System
by the Iowa State University Extension
Provides a comprehensive analysis of the benefits of a local food system compared to an industrialized system.
http://www.leopold.iastate.edu/pubs-and-papers/2005-11-using-organic-agriculture-and-sustainable-cropsand-livestock-local-food-sys
Sow What?: On Food and Farming -- A Journey Into the Heart of Industrial Agriculture
by Grist
A series of articles that venture to the Farm Belt to talk with farmers, economists, and chefs, leading writers
like Michael Pollan and Elizabeth Royte, and folks at Sustainable Table, a national group that connects
shoppers with local suppliers. Several articles take a close look at confined-animal feeding operations and at a
sustainable/local-food revolution in Iowa.
http://grist.org/series/sow-what-on-food-and-farming/
EatWild
For a fairly comprehensive list of Indiana's local/sustainable farmers and ranchers check out the EatWild
listing for Indiana at http://www.eatwild.com/products/indiana.html#seven. For local food restaurants,
stores, markets, coops, and buying clubs in Indiana, check out EatWild's Beyond the Farm list at
http://www.eatwild.com/products/indianaresources.htm
Local Harvest
A great website for finding farmers' markets, family farms, and other sources of sustainably grown food in
your area.
http://www.localharvest.org/
The Meatrix (video)
This is an award winning flash animation short video on the internet that outlines the key issues of factory
farming through a take-off on the science fiction film, The Matrix.
www.themeatrix.com
Frankensteer (documentary)
This is a disturbing documentary that reveals how the ordinary cow has been turned into an antibioticdependent, hormone-laced potential carrier of toxic bacteria, all in the name of cheaper food. Frankensteer
exposes the harsh and sometimes frightening realities of how our beef gets to our tables. For Frankensteer
DVD orders email: [email protected].
23
UNDERSTANDING THE LEGAL FRAMEWORK
I.
State and Federal Environmental Regulations
A. Water Quality Protection
AFOs that meet the definition of CAFO under federal regulation,
are considered "point sources" and subject to permitting
requirements of the Clean Water Act's National Pollution Discharge
Elimination System (NPDES).37 In Indiana, the Indiana
Department of Environmental Management ("IDEM") has
authority to implement and enforce the federal NPDES permitting
programs including those requirements applicable to CAFO's.
Generally, under EPA regulation, a CAFO is defined to include any
AFO that confines more than a specified number of animals or,
regardless of the animal threshold, is designated a “significant
contributor of pollutants” to waters of the U.S. by the NPDES permitting authority.38 However, a livestock operation
that does not qualify as an AFO, such as a pasture or rangeland operation without confinement areas, may not be
designated as a CAFO, even if it is a significant contributor of pollution. Such an operation would instead be
considered part of the large, unregulated universe of non-point source pollution from agriculture.
Further limiting the number of AFOs that are designated as CAFOs, a federal appeals court vacated the provision
requiring CAFOs that “propose to discharge” to apply for NPDES permits. Consequently, only discharging CAFOs
can now be required to apply for an NPDES permit. Consequently, IDEM updated its CAFO rule which was adopted
by Indiana’s Water Pollution Control Board on November 9, 2011. The new rule removes the requirement that any
CAFO that “proposes to discharge” pollutants into waters of the state – but does not actually discharge – obtain an
NPDES permit. As a result, many of Indiana’s largest industrial livestock facilities have since left the federal NPDES
program and entered Indiana's less protective CFO program.
Indiana’s CFO rule was updated and became effective on July 1, 2012.39 IDEM's Guidance Manual for Indiana's
Confined Feeding Program is available for download at http://www.in.gov/idem/4994.htm and details the new
rule requirements. In summary, IDEM's new CFO rule contains phosphorous-based application limits rather than
nitrogen-based application limits, to be phased in over the next six years, prohibitions against manure application in
the winter months or on frozen/snow covered ground, and a "bad character" provision requiring permit applicants
to disclose any past environmental violations.
However, CAFOs previously permitted under the NPDES program with only 120 days of manure storage capacity
(as opposed to the required 180 days) can apply for a variance and land apply during the winter months and in
“emergency situations.” Also, manure storage structures can be built in karst terrain and located 100 feet from on-site
water wells and property lines, 300 feet from surface waters, drainage inlets, sinkholes and off-site water wells, 400
feet from adjacent homes and buildings, and 1,000 feet from a public water supply or intake structure.
Finally, a CFO/CAFO operator seeking approval under the new CFO rule must make only a “reasonable attempt”
to provide notice to those living within a half-mile of any manure or livestock/poultry production structures which
40 CFR 122.23
Id.
39
See IC § 13-18-10, 327 IAC 19 and 327 IAC 15-16
37
38
24
then triggers a 33-day public comment period. Also, a public meeting may be held at the discretion of IDEM. IDEM’s
approval decisions are subject to administrative review. However, all required operating records are kept by the
CFO/CAFO owner and subject only to IDEM review upon the agency’s request. In essence, the rule lacks any
meaningful mechanism for transparency, public accountability, or enforcement.
Under Indiana law, a decision by IDEM to approve, deny, revoke, amend, require an approval, or impose additional
requirements on an animal feeding operation is subject to administrative review under the Administrative Orders
and Procedures Act (AOPA).40 Under I.C. § 13-15-6-1 a "person aggrieved" by IDEM's decision has "not later
than fifteen (15) days after being served with notice" (of the decision) by IDEM to file an Administrative Review
Petition with the Office of Environmental Adjudication.
B.
The "Spill Rule"
The spill rule41 imposes reporting, containment and response requirements on spills of hazardous substances,
petroleum, and "objectionable substances" that damage waters of the state. "Objectionable substances" include
livestock waste. For permitted CAFOs/CFOs, compliance with an approved "Emergency Response Plan" will
constitute compliance with the spill rule. However, for unpermitted AFOs, the spill rule applies and requires:
immediate response using the most effective containment action possible; report of the spill to IDEM within 2 hours
of discovery; and notification of neighbors and downstream water users. Moreover, such a spill by an unpermitted
AFO would likely be considered an unpermitted discharge subject to citizen enforcement under the Clean Water Act
and Indiana's citizen suit provision. A CAFO/CFO's failure to comply with an approved Emergency Response Plan
may also be enforceable under citizen suit provisions.42
C.
Gaps in Environmental Regulation - No Protection of Air Quality
Air emissions from factory farms usually come from one of three main sources: the ventilation stacks of the barns,
the manure lagoon, and from the manure spread on fields. In addition to odor, factory farms release dangerous and
toxic compounds into the air, such as hydrogen sulfide, ammonia, methane and volatile organic compounds.
However, agriculture is exempt under the Clean Air Act from have to comply air quality standards. Consequently,
some counties in Indiana, including Wabash County, have established setback distances from residences and
community buildings and parks. Nevertheless, research shows that odor plumes can travel well over 3 miles,
depending on the atmospheric conditions. In addition, the nitrous oxide and methane emitted by factory farms are
powerful greenhouse gases that contribute to climate change.
To assess what kind of impact a particular factory farm will likely have on air quality, it is useful to determine: the
direction and speed of prevailing winds in the area; the frequency and occurrences of air inversions; if the manure
storage facility will be covered and the type of cover; if bio-filters will be installed on the stacks of the barn; if liquid
manure will be injected into the soil and incorporated; how often will the barns be washed; and if the operation
will utilize any advanced technologies (bio-gas recovery).
40
IC § 4-21.5-3-7
327 IAC 2-6.1
42
Later Sections in this Guide provide a more detailed discussion of citizen suits.
41
25
II.
Zoning and Land Use Law
Zoning law is the process of regulating land use within a town, city or county. Indiana's zoning law follows traditional
“Euclidean zoning” wherein land is divided into use districts that restrict where industrial, commercial, agricultural,
residential and other defined land uses will be allowed. This style of zoning was upheld as constitutional in 1926 in
the United State Supreme Court case of Village of Euclid v. Ambler Realty Company43 under the states' police power for
protection of the public health, safety, welfare and morals.
In Indiana, zoning and land use law is codified in Title 36 (Local Government), Article 7(Planning & Development),
Chapter 4 (Local Planning & Zoning) of the Indiana Code. Broad discretion is afforded to local governments to
regulate land use within their jurisdictions ("Home Rule") but all local land use and zoning decisions must be
made in accordance with the statutory requirements set forth in I.C. § 36-7-4.
In Indiana there are four different organizational structures under which local governments may direct the planning
and zoning of land in their jurisdictions. They include Area, Advisory, Metropolitan and Joint planning with the
majority of local governments falling within the "Area" and "Advisory" planning structures. "Metropolitan" planning
currently applies only to Indianapolis-Marion County, while Edinburgh/Bartholomew County/Columbus follow a
Joint planning system. As of November 1, 2011, seven counties in Indiana had not formed plan commissions
including Clay, Crawford, Dubois, Gibson, Lawrence, Orange and Sullivan.
A.
Plan Commissions
Kosciusko County follows the "Area" planning law. That means the county's Plan Commission reflects a cooperative
agreement between county government and at least one municipality within the county. As such, the Plan Commission
has jurisdiction over all unincorporated territory as well as areas within participating municipalities which include
Pierceton, Claypool, Milford, Silver Lake, North Webster, the Town of Syracuse and the Town of Etna Green.
Participating and non-participating municipalities within the county cannot exercise extraterritorial jurisdiction.
Under Indiana statute, the purpose of a plan commission is "[t]o improve the health, safety, convenience, and welfare
of citizens and to plan for the future development of communities to the end that: (1) highway systems be carefully
planned; (2) new communities grow only with adequate public way, utility, health, educational, and recreational
facilities; (3) the needs of agriculture, forestry, industry, and business be recognized in future growth; (4) residential
areas provide healthful surroundings for family life; and (5) the growth of the community is commensurate with and
promotive of the efficient and economical use of public funds.44”
B.
The Comprehensive Plan
Before an Area Plan Commission can exercise zoning authority, a comprehensive plan must be prepared.45 "The plan
at a minimum must provide: 1) a statement of objectives for the future development of the jurisdiction; 2) a statement
of policy for the land use development of the jurisdiction; and 3) a statement of policy for the development of public
ways, public places, public lands, public structures, and public utilities.46 In addition to these elements, the Plan may
also include "information, locations, extent, and character" of "[a]reas needing redevelopment and conservation; [a]ir,
43
272 US 365 (1926).
IC § 36-7-4-201.
45
IC § 36-7-4-501
46
IC § 36-7-4-502
44
26
land, and water pollution; [l]and utilization, including agriculture, forests, and other uses; and [c]onservation of energy,
water, soil, and agricultural and mineral resources" among other concerns.47
Other common names for a comprehensive plan include: Growth Policies Plan, Master Plan, and Community-wide
Strategic Plan. As these names suggest, a comprehensive plan is not law but, rather, a collection of ideas, policies,
strategies, designs, and guiding principles for the purpose of maintaining and improving the general health, safety,
convenience, and welfare of a community's citizens. It is also the guiding policy for future development and land use
within the county. Therefore, the adopted zoning ordinance and all zoning decisions must be consistent with
the stated policy goals and objectives of the comprehensive plan.
Kosciusko County's Comprehensive Plan is available
http://www.kcgov.com/department/division.php?structureid=45
C.
for
download
here:
Zoning Ordinance
Any zoning ordinance adopted by the legislative body (the County Commissioners) must serve the purposes of:
"securing adequate light, air, convenience of access, and safety from fire, flood, and other danger; lessening or avoiding
congestion in public ways; promoting the public health, safety, comfort, morals, convenience, and general welfare;
and otherwise accomplishing the purposes of [ IC § 36-7-4].48 " The ordinance may also regulate how real property
is developed, maintained, and used including: requirements for site conditions; restrictions on development in
areas prone to flooding; restrictions on the kind and intensity of uses; and performance standards for the
emission of noises, gases, or particulate matter into the air or ground or across lot lines.49
When a zoning ordinance is initially adopted, zone maps must also be prepared to indicate the districts into which the
incorporated areas and unincorporated areas, if any, are divided and must follow the procedures for adoption set forth
in IC. § 36-7-4-606.
Kosciusko County's Zoning Ordinance is available
http://www.kcgov.com/department/division.php?structureid=50
for
download
here:
The Kosciusko County Zoning Ordinance broadly defines the term "Agriculture" to include:
Any use of land or structure for farming, dairying, pasturage, agriculture, horticulture, floriculture,
arboriculture, or animal or poultry husbandry. Acessory uses permitted in connection with an
agricultural use may include barns, stables, corncribs, silos, and other uses or structures that are clearly
a part of an agricultural operation.50
The Ordinance establishes nine use "districts" including two Agricultural Districts -- "A" and "AII" -- as well as an
"Environmental" district" which allows agriculture, and three "Industrial" use districts which also allow agriculture as
an "exception use" meaning that application to the BZA for a special use permit would be required. 51 The stated
purpose of the "A" district is to "protect prime agricultural land and related uses from undesirable urban growth, and
establish a quarter (1/4) mile (1,320 feet) protective zone for livestock operations, to protect such operations from
urban development that is not compatible.52" The stated purpose of the "AII" district is "to allow the development
47
IC § 36-7-4-503
IC § 36-7-4-601
49
Id.
50
Kosciusko County Zoning Ordinance, Article 9, Definitions
51
Kosciusko County Zoning Ordinance, Article 2, Section 2.2; see also the following section on the BZA and Special Uses.
52
Id. at Section 2.6.
48
27
of some tracts of marginal agricultural ground into low density, rural atmosphere residential subdivisions ('minifarms'), allowing a mixing of the Residential and Agricultural uses.53" The "E" district is "limited to agriculture,
recreation, and certain other open land uses" and its stated purpose is "to prevent intensive development of land that
is unsuitable for development due to topography, soil conditions, periodic flooding, or other natural features.54"
D.
Adopting/Amending a Zoning Ordinance
IC. § 36-7-4-602 governs the process for adopting or amending the text of ordinances and making changes to a zoning
map as follows:

To adopt an ordinance, the plan commission first initiates the proposal which must be consistent with:
the comprehensive plan, current conditions and the character of current structures and uses, the most
desirable use for which the land in each district is adapted, the conservation of property values throughout
the jurisdiction and responsible development and growth.55 Then, the plan commission must give public
notice and hold a public hearing in accordance with Ind. Code § 36-7-4-604. The plan commission
must certify the proposal with a favorable recommendation to the County Commissioners.56 The County
Commissioners then adopt, reject or amend the proposal at the first regular meeting of the County
Commissioners held after plan commission certification or may decide to further consider the proposal
in which case it may be scheduled for further hearing, after providing public notice under IC §5-14-1.5-5,
at any regular or special meeting of the County Commissioners within 90 days after certification. In any
event, the County Commissioners shall vote on the proposal within 90 days of plan commission
certification.57 The plan commission’s recommendation must be made publicly available for at least 10
days before any scheduled hearing. If the proposal is adopted, the plan commission must print and publish
the ordinance under section 610.

To amend or partially repeal the text (not zone maps) of the zoning ordinance, the proposal to
amend may be initiated by the Plan Commission, County Commissioners, or a participating town council.
However, the proposal must first be referred to the commission for consideration and recommendation
before any final action is taken by the County Commissioners. On receiving or initiating the proposal, the
plan commission shall hold a public hearing in accordance with IC. § 36-7-4-604. Within ten (10)
business days after the plan commission determines its recommendation (if any), it must certify the
proposal in accordance with IC. § 36-7-4-605. The legislative body shall then vote on the proposal within
ninety (90) days after the plan commission certifies the proposal.
If the proposal receives a favorable recommendation from the plan commission, the County
Commissioners may adopt, reject, or amend the proposal after giving public notice under IC 5-14-1.5-5
of its intent to consider the proposal at a public meeting. If they adopt (as certified) the proposal, it takes
effect as other ordinances. If the County Commissioners fail to act on the proposal within ninety (90)
days after certification by the Plan Commission, the proposal takes effect as if it had been adopted (as
certified) ninety (90) days after certification. If the legislative body rejects or amends the proposal, it shall
be returned to the plan commission for its consideration, with a written statement of the reasons for the
rejection or amendment. The plan commission has forty-five (45) days in which to consider the rejection
or amendment and report to the legislative body in accordance with IC. § 36-7-4-607.
53
Id. at Section 2.7.
Kosciusko County Zoning Ordinance, Article 2, Section 2.4
55
Ind. Code § 36-7-603.
56
Ind. Code § 36-7-605(1)
57
Ind. Code § 36-7-606(b)(1).
54
28
If the proposal receives either an unfavorable recommendation or no recommendation from the plan
commission, the County Commissioners may adopt, reject, or amend the proposal. However, they must
first give public notice under IC 5-14-1.5-5 of the intention to consider the proposal at that meeting. If
the County Commissioners adopt (as certified) the proposal, the ordinance takes effect. If the County
Commissioners reject the proposal or fail to act on it within ninety (90) days after certification, it is
defeated.
*
To amend zoning maps, a proposal may be initiated by the plan commission, county commissioners,
or a petition signed by at least 50% of property owners of the land involved. The procedures for plan
commission certification, public notice, and the county commissioners’ consideration must be in
accordance with Ind. Code §§ 603, 604, 605, 608 and 610.
It is important to know that plan commissions and county commissioners must follow the statutory procedures for
amendment or change in zoning ordinances and failure to do so renders the ordinance void.58 However, the motives
of a legislative body, (county commissioners), in making decisions to re-zone or make zoning changes, are irrelevant
to the question of whether such decisions are reasonable and relate to the public health, safety, morals or convenience
of the general welfare.59
E.
County Commissioner/Plan Commission Member Conflict of Interest
I.C. § 36-7-4-223 prohibits "[a] member of a plan commission or a legislative body from:
*
Participating as a member of the plan commission or legislative body in a hearing or decision
of that commission or body concerning a zoning matter in which the member has a direct or
indirect financial interest; (The commission or body shall enter in its records the fact that its
member has such a disqualification.)
*
Directly or personally representing another person in a hearing before that commission or
body concerning a zoning matter; or
*
Receiving any mileage or compensation for attendance at a meeting if the member is
disqualified during any part of the meeting.
A "zoning matter” as referred to in I.C. § 36-7-4-223 does not include the preparation or adoption of a
comprehensive plan.60 However, proposals to amend the zoning ordinance and applications for DPUD's and zoning
map changes are considered zoning matters for purposes of the conflict of interest prohibition. In determining
whether to disqualify a member of a plan commission or legislative body for having a conflict of interest, Indiana
courts are not limited to ascertaining whether the member actually exercised improper influence over other members
or whether the prohibited interest actually affected the member's vote.61 Rather, courts may find a conflict of
interest upon consideration of "whether the situation is one reasonably calculated to weaken public
confidence and undermine the public's sense of security for protection of individual rights in exercise of
58
Krimendahl v. Common Council of city of Noblesville, 267 N.E.2d 547 (1971).
Penn v. Metropolitan Plan Commission of Marion County, 228 N.E.2d 25 (1967).
60
IC 36-7-4-223(a).
61
Fail v. LaPorte County Bd. of Zoning Appeals, 355 N.E.2d 455, 458 (Ind.App. 1976).
59
29
zoning authority.62" When a biased plan commission member participates in a zoning decision, the decision may
be vacated by the reviewing trial court.63
F.
County Boards of Zoning Appeals and Special Exceptions
Kosciusko County has a Board of Zoning Appeals ("BZA") established under I.C. § 36-7-4-900, et. seq, and charged
with approving or denying requests for special exceptions from the terms of the respective zoning ordinances. It is
important to understand that a BZA can only approve or deny special exceptions “in the classes of cases or in the
particular situations specified in the zoning ordinance” and “may impose reasonable conditions.64” In other words, if
a proposed use is not specifically defined and identified as a permitted use in a particular use district, the BZA may
not grant a special exception for the proposed use.
The procedure for obtaining a special exception is governed by several provisions set forth in I.C. § 36-7-4
including requirements for a public notice and hearing in accordance with IC § 36-7-4-920. Section 920 requires
the BZA to: fix a "reasonable time" for the hearing; provide public notice and notice to all interested parties at least
ten (10) days prior to the hearing date; and allow plan commission staff and other persons to appear at the hearing
and present evidence in support of or in opposition to the granting of the special exception.
Communications with any member of the BZA before the hearing "with intent to influence the member's action
on the matter on the the application for a special exception is prohibited except that "[n]ot less than five (5) days
before the hearing, plan commission staff may file "a written statement setting forth any facts or opinions relating to
the matter" and the BZA may require any adverse party "to enter a written appearance specifying the party's name
and address." If the written appearance is entered more than four (4) days before the hearing, the board may also
require the petitioner to furnish each adverse party with a copy of the petition and a plot plan of the property
involved.65
Before approving a special exception, a BZA must find that certain basic conditions as detailed in the ordinance have
been met. Under Indiana law, "the burden of demonstrating satisfaction of the relevant . . . criteria rests with
the applicant for a special exception.66 Significantly, those opposed ("remonstrators"), are not required to negate
or come forward with evidence to contradict evidence submitted by an applicant.67 Rather, a BZA may deny an
application for a special exception on the grounds that the applicant failed to carry its burden of proving with
"substantial evidence" that the proposed use complies with the relevant criteria.68 Evidence will be considered
substantial if it is more than a scintilla and less than a preponderance.69 In other words, "substantial evidence is
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.70" Finally,
the BZA must keep minutes of its proceedings and record the vote on all actions taken; file all minutes and records
in the BZA office as public records; and in all cases heard, make written findings of fact.71 The BZA must also file
a copy of its decision with the BZA office within five (5) days after making its decision.72
62
Id.
See Couch v. Hamilton County Bd. of Zoning Appeals, 609 N.E.2d 39, 42 (Ind.App. 1993).
64
Ind. Code § 36-7-4-918.2.
65
IC § 36-7-4-920
66
Midwest Minerals Inc. v. Board of Zoning Appeals of Area Plan Dept./Com'n of Vigo County, 880 N.E.2d 1264,
1269 (Ind.App.2008).
67
Id.
68
Id.
69
Id.
70
Id.
71
IC § 36-7-4-915
72
IC § 36-7-4-919.
63
30
G.
BZA Members - Conflict of Interest
As with a Plan Commission member, a BZA member "may not participate in a hearing or decision of [the BZA]
concerning a zoning matter in which he [or she] has a direct or indirect financial interest.73 If a BZA member has
such a conflict, the BZA "shall enter in its records: (1) the fact that a regular member has such a disqualification; and
(2) the name of the alternate member, if any, who participates in the hearing or decision in place of the regular
member.74"
A reviewing trial court is not limited to ascertaining whether the member actually exercised improper influence over
other members or whether the prohibited interest actually affected the member's vote.75 Rather, the trial court may
find a conflict of interest upon consideration of "whether the situation is one reasonably calculated to weaken public
confidence and undermine the public's sense of security for protection of individual rights in exercise of zoning
authority.76" If a conflicted BZA member participates in a hearing and decision on a special exception, the decision
may be vacated by the reviewing trial court.77
73
IC § 36-7-4-909 (emphasis added).
Id.
75
Fail v. LaPorte County Bd. of Zoning Appeals, 355 N.E.2d 455, 458 (Ind.App. 1976)
76
Id.
77
See Couch v. Hamilton County Bd. of Zoning Appeals, 609 N.E.2d 39, 42 (Ind.App. 1993)
74
31
PROTECTING YOUR LEGAL RIGHTS
There are a variety of ways to use the law, the courts and the legal system
to protect your rights. However, the decision to take legal action must be
made very carefully. Legal battles can be costly and require a high degree
of commitment over a long period of time. The following section is not
intended to be legal advice but merely some considerations and
information you might find useful.
I. Hierarchy of Indiana Courts
Indiana has three primary levels of courts: 1) the trial courts (called Circuit
and Superior Courts); 2) the intermediate appellate courts (the Indiana
Court of Appeals); and 3) the Indiana Supreme Court.
Trial Courts. Each of Indiana’s 92 Counties has a Circuit Court and at least one Superior Court that typically have
overlapping jurisdiction. Both may review and have “original jurisdiction” over land use and zoning decisions.
Court of Appeals. After a trial court has reached its decision in a case, the parties to the dispute may appeal it to the
Court of Appeals. Judges at this level usually limit their review to matters of law and fact arising from the trial court
record. Appellate decisions are final unless the Indiana Supreme Court grants further review.
Supreme Court. To challenge a Court of Appeals’ decision, a party must ask the Indiana Supreme court to take the
cause by filing a “petition to transfer.” The Court’s five justices have discretion whether or not to accept the case. If
they decline transfer, the litigation is ended. If it accepts transfer, the Court of Appeals decision is automatically
vacated.
II.
Judicial Review
Generally, a person aggrieved by a local land use decision has a right to challenge that decision by seeking a court’s
review of the decision. In order to determine what, if any, appeal rights exist, the person must first identify the type
of land use decision at issue (e.g. rezoning, variance, special exception, etc…). The type of land use decision at issue
often determines the process to be followed and the substantive rules to be applied by a court during the review.
I.C. § 36-7-4-1600 et. seq. allows persons who are aggrieved or adversely affected by a final zoning decision of
a BZA, plan commission or legislative body to file with the appropriate court within the judicial district where
the land affected by the zoning decision is located, a verified petition setting forth specific grounds why the person
is prejudiced by the decision and why the decision is illegal. The petition for judicial review must be filed with the
court within thirty (30) days after the date of the decision of the BZA. IC § 36-7-4-1608 imposes stringent Notice
requirements in filing the writ petition that if not strictly followed will result in dismissal of the Petition.
A person must be "aggrieved or adversely affected" by a BZA decision in order to have standing to seek judicial
review of that decision.78 Traditionally, standing was demonstrated by a remonstrator' showing that he experienced
78
IC § 36-7-4-1603 sets for the "standing" requirements for seeking judicial review. See also Bagnall v. Town of Beverly Shores, 726
N.E.2d 782, 786 (Ind.2000).
32
"a substantial grievance, a denial of some personal or property right, or the imposition of a burden or obligation.79
However, this is no longer sufficient under IC § 36-7-4-1603 which now requires a remonstrator to also demonstrate
that he "participated in the board hearing that led to the decision, either by appearing at the hearing in person,
by
agent,
or
by
attorney
and
presenting
relevant
evidence;
or
by filing with the board a written statement setting forth any facts or opinions relating to the decision."
As held by the Indiana Appellate Court in Benton County Remonstrators v. Board of Zoning Appeals of Benton County, 80
adjacent landowners can validly claim to be aggrieved parties. However, in the case of a proposed CAFO,
neighboring property owners who can demonstrate that the value of their property will decrease if the CAFO
is constructed, regardless of whether their property is adjacent to the proposed CAFO, may be able to demonstrate
standing,81 as long as they also meet the rigid requirements of IC § 36-7-4-1603.
Finally, it is important to note that when a trial court is asked to review a BZA decision, the court may only examine
the board's decision to determine if it was incorrect as a matter of law.82 The trial court's review is not a trial de
novo and it may not substitute its decision for that of the board absent such a showing of illegality. 83 Consequently,
if there is sufficient evidence to support the board's decision which is otherwise legal, it must be upheld.
III. Declaratory Judgment
Under the Uniform Declaratory Judgments Act, any person whose rights, status, or other legal relations are
affected by a statute or ordinance may have determined any question or construction or validity arising under the
statute or ordinance, and obtain a declaration of rights, status, or other legal relations thereunder.84 A person is so
"affected" by the challenged ordinance or statute only if the person has a "substantial present interest in the relief
sought, such as there must exist not merely a theoretical question or controversy but a real or actual controversy, or
at least the ripening seeds of such a controversy, and that a question has arisen affecting such right which ought to be
decided in order to safeguard such right.85”
As a general rule, a declaratory judgment suit to challenge an ordinance may be allowed where it is clearly or patently
illegal, where a waste of public funds is present or imminent, where the action is taken without jurisdiction over the
subject matter, or where there is an unmistakable abuse of discretion.86 Upon filing such an action, "all persons" who
have or claim any interest that would be affected by the declaration must be made parties to the action.87 In addition,
if the validity of an ordinance is at issue, the local government body must be made a party. Finally, if the statute or
ordinance is alleged to be unconstitutional, the Attorney General of Indiana must be served and be entitled to be
heard.88
79
Id.
905 N.E.2d 1090, 1097-1098 (Ind.App.,2009).
81
Sexton v. Jackson County Bd. of Zoning Appeals, 884 N.E.2d 889 (Ind.App.2008)
82
Metropolitan Bd. of Zoning Appeals, Div. II, Marion County v. Gunn, 477 N.E.2d 289, 294 (Ind.App. 1985)
83
Id.
84
IC § 34-14-1, et. seq
85
Stokes v. City of Mishawaka, 441 N.E.2d 24, 27 (Ind.App.1982)
86
Montagano v. City of Elkhart, 271 N.E.2d 475 (Ind.App. 1971)
87
IC § 34-14-1-11
88
Id.
80
33
IV. Action for Mandate
Many of the foregoing statutory and ordinance provisions impose non-discretionary duties on the state or local
government body. Use of the words "shall" and "must" when describing the required actions or duties of a
government body in a statute, regulation or zoning ordinance indicate that such activities or duties are likely mandatory
or non-discretionary in nature and, therefore, must be performed by the government body.
When a government body does not perform a non-discretionary duty, an action for mandate may be filed with the
trial court to force the government body to perform the required action. Specifically, IC § 34-27-3-1 allows an action
for mandate to be prosecuted "against any inferior tribunal, corporation, public or corporate officer, or person to
compel the performance of any: (1) act that the law specifically requires; or (2) duty resulting from any office,
trust, or station."
An action for mandate is "an extraordinary remedy of an equitable nature and is generally viewed with disfavor" by
Indiana courts. Accordingly, mandamus will be granted only where the petitioner establishes a clear and
unquestioned right to relief and that the government body has failed to perform a clear, absolute, and
imperative duty imposed by law. Mandamus should not be used to establish a right or to define and impose a duty
as with actions for declaratory judgment.89
When bringing such an action, the complaint and summons should be filed in the circuit or superior court, in the
manner that other civil actions are filed. The complaint should identify the action as an “Action for Mandate” and all
standing requirements apply.
V.
Citizen Enforcement of Environmental Laws
Section 505(a)(1) of the Clean Water Act authorizes any person or persons having an interest which is or may be
adversely affected to commence a civil action on his own behalf to enforce the Act or to enforce certain requirements
promulgated pursuant to the Act including NPDES permit limits and conditions.90 Because the NPDES program is
part of the CWA, it is subject to this federal citizen suit provision as well as the Indiana citizen suit provision set forth
in I.C. § 13-30-1, et. seq.
Notwithstanding the foregoing federal and state citizen suit provisions, under Indiana's permit program, if a CFO has
a valid permit approval under Indiana regulation, a violation of the permit's operational requirements, or land
application of manure requirements, may not be subject to an enforcement action pursuant under IC 13-30-1
(citizen suit) or IC 13-14-2-6 (agency enforcement) if the violation: (1) has not caused a discharge to waters of the
state; or a release of manure that has crossed a property boundary; (2) is corrected immediately or within a reasonable
time frame as specified in a written notification of the violation by an IDEM representative; (3) is not the same type
of violation as a violation that occurred within the previous five (5) years; and (4) is not one of multiple concurrent
violations that represent a threat to the environment.
As with most citizen enforcement provisions under major environmental statutes, the CWA has detailed Notice and
Service requirements.91 Notably, among other requirements, a citizen suit cannot be filed "prior to sixty days after
89
Perry v. Ballew, 873 N.E.2d 1068 (Ind. App. 2007)
33 U.S.C. § 1365; 40 C.F.R. § 135.1
91
40 C.F.R. §§ 135.1, 135.2 and 135.3
90
34
the plaintiff has given notice of the alleged violation to the EPA Administrator, the EPA Region V Administrator,
the Indiana Attorney General, the Commissioner of IDEM and the alleged violator.92 Following the sixty day notice
period, if EPA or IDEM has commenced and is "diligently prosecuting a civil or criminal action" in federal or state
court to require compliance, any citizen may not file a citizen suit but may intervene in the agency's enforcement
action "as a matter of right.93"
VI. Nuisance Actions
Under Indiana law, a nuisance is defined as that which is "injurious to health, indecent, offensive to the senses, or an
obstruction to the free use of property so as essentially to interfere with the comfortable enjoyment of life or
property.94" Indiana law also provides that a lawsuit to abate or enjoin a nuisance may be brought by any person whose
property is injuriously affected or personal enjoyment is lessened by the nuisance.95 A trial court may award injunctive
relief to enjoin or abate the nuisance and may award damages proximately caused by the nuisance.96
Unfortunately, as it applies to agricultural operations including CAFO's, Indiana's nuisance law is tempered by
Indiana's Right to Farm Act97 which provides that:
An agricultural or industrial operation or any of its appurtenances is not and does not become a
nuisance, private or public, by any changed conditions in the vicinity of the locality after the
agricultural or industrial operation, as the case may be, has been in operation continuously on the
locality for more than one (1) year if the following conditions exist:
(1) There is no significant change in the type of operation. A significant change in the type of
agricultural operation does not include: the conversion from one type of agricultural operation to
another type of agricultural operation; a change in the ownership or size of the agricultural operation;
the enrollment; or reduction or cessation of participation of the agricultural operation in a government
program; or the adoption of new technology by the agricultural operation.
(2) The operation would not have been a nuisance at the time the agricultural operation
began on that locality.
Significantly, the RTFA "does not apply if a nuisance results from the negligent operation of an agricultural or
industrial operation or its appurtenances.98" However, even a negligently operated CAFO may enjoy the protections
of the RTFA if the negligent operation or activity is not the proximate cause of the nuisance.99 In other words, it is
not enough that the CAFO is operated in a negligent manner, the negligence must also be the cause of the complained
of nuisance conditions to avoid application of the RTFA.
92
33 U.S.C. § 1365
Id.
94
IC § 32-30-6-6
95
IC § 32-30-6-7
96
IC § 32-30-6-8
97
IC § 32-30-6-9
98
Id.
99
Lindsey v. DeGroot, 898 N.E.2d 1251, 1260 (Ind.App.,2009)
93
35
VII. Actions for Trespass
Indiana defines trespass as “the doing of an unlawful act or of a lawful act in an unlawful manner to the injury of
another's person or property.100” The intent required for the tort of trespass is not intent to commit the tort of trespass,
but simply the intent to commit the act that results in the trespass. Liability may be found even where the trespasser
was not aware that he committed the tort of trespass.101
Plaintiff in an action for trespass to real property must prove that the plaintiff was in possession of the land; and that
the defendant had no right to enter the land. Unauthorized entry onto the land of another will constitute trespass.
Where a defendant does not trespass in person but projects something onto the land of another, this will
constitute trespass as well. Plaintiff bears the burden of proof as to the elements of trespass; and every trespass is
presumed to result in a legal injury that allows plaintiff to be awarded at least nominal damages. Compensatory
damages may be awarded for actual injury.102
100
23 INPRAC § 3:29
Id.
102
Id.
101
36