Thomas v. BLACKFORD CTY. AREA BD. ZONING AP.

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Robert G. Forbes BLACKFORD COUNTY AREA
Hartford City, Indiana BOARD OF ZONING APPEALS
William V. Hughes
Muncie, Indiana

ATTORNEYS FOR APPELLEE
OOLMAN DAIRY, LLC
Jason M. Kuchmay

FILED
James A. Federoff
Fort Wayne, Indiana
________________________________________________________________________
Jun 16 2009, 12:04 pm

In the CLERK
of the supreme court,

Indiana Supreme Court court of appeals and
tax court

_________________________________

No. 05S04-0902-CV-90

ELIZABETH THOMAS,
Appellant (Petitioner below),

v.

BLACKFORD COUNTY AREA
BOARD OF ZONING APPEALS,
Appellee (Respondent below),

and

OOLMAN DAIRY, LLC

Appellee (Intervenor below).
_________________________________

Appeal from the Blackford Circuit Court, No. 05C01-0609-PL-178
The Honorable Joel D. Roberts, Special Judge
_________________________________

On Petition to Transfer from the Indiana Court of Appeals, No. 05A04-0711-CV-731
_________________________________

June 16, 2009
Boehm, Justice.

We affirm the trial court’s conclusion that a property owner lacked standing to challenge
a Board of Zoning Appeals ruling, and we address the procedural steps available to raise
standing issues.

Facts and Procedural History

Oolman Dairy sought a special exception to build and operate a confined animal feeding
operation (“CAFO”) in an agricultural district in Blackford County. The proposed CAFO would
keep 2,000 cows on an approximately 27-acre site. Following a public hearing, the Blackford
County Area Board of Zoning Appeals (“BZA”) ruled that Oolman had met the criteria for a
special exception.

Elizabeth Thomas owns her residence whose property line is approximately a third of a
mile from the nearest point of the proposed CAFO. Thomas sought a writ of certiorari from the
Blackford Circuit Court challenging the special exception. Oolman intervened and moved to
dismiss Thomas’s petition under Indiana Trial Rule 12(B)(6), arguing that Thomas was not an
“aggrieved party” within the applicable statute and therefore lacked standing to challenge the
BZA’s ruling. The trial court denied that motion, noting that Thomas’s petition alleged that she
was an “aggrieved party,” and ordered an evidentiary hearing on the standing issue. After
hearing testimony and receiving evidence, the trial court found that Thomas had failed to
establish standing and dismissed her petition.

The Court of Appeals reversed. Thomas v. Blackford County Area Bd. of Zoning
Appeals, No. 05A04-0711-CV-731, slip op. at 2 (Ind. Ct. App. July 25, 2008), reh’g denied. The
Court of Appeals noted that the trial court heard evidence outside of the pleadings and treated
Oolman’s motion to dismiss as a motion for summary judgment. Id. at 5. Because the evidence
introduced at the hearing conflicted, the Court of Appeals held that summary judgment was
inappropriate. Id. The Court of Appeals remanded “to afford the parties an opportunity to
complete their presentation of evidence, if they have not done so already, and to render a
decision on the merits.” Id. at 6. We granted transfer.

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 Procedural Posture and Standard of Review

Motions to dismiss for lack of standing may be brought under Trial Rule 12(B)(6) for
failure to state a claim on which relief can be granted. Huffman v. Ind. Office of Envtl.
Adjudication, 811 N.E.2d 806, 813 (Ind. 2004). If the motion is presented under Rule 12(B)(6),
the allegations of the complaint are required to be taken as true. Id. at 814. A successful
12(B)(6) motion alleging lack of standing requires that the lack of standing be apparent on the
face of the complaint. Id. at 814. If affidavits or other materials are attached to the 12(B)(6)
motion, it is treated as one for summary judgment under Rule 56. Ind. Trial Rule 12(B). Neither
of these principles applied here. The trial court therefore correctly denied Oolman’s 12(B)(6)
motion because Thomas’s complaint alleged that she was “aggrieved,” and no factual backup
was supplied to convert the motion to one under Rule 56.

This appeal is from the trial court’s order that included findings and conclusions and
dismissed Thomas’s petition after an evidentiary hearing on the standing issue. A hearing on
standing at which evidence is heard is not a hearing on a motion to dismiss for failure to state a
claim. Rather, like a hearing on a motion to dismiss for lack of personal jurisdiction, it is a
hearing at which factual issues may be resolved and factual determinations are reversed on
appeal only if clearly erroneous. Bagnall v. Town of Beverly Shores, 726 N.E.2d 782, 786 (Ind.
2000) (reviewing the trial court’s factual findings regarding standing for clear error); cf.
LinkAmerica Corp. v. Albert, 857 N.E.2d 961, 965 (Ind. 2006) (“[P]ersonal jurisdiction turns on
facts, . . . and findings of fact by the trial court are reviewed for clear error.”).

Standing

This case is governed by the framework set out in Bagnall. Indiana Code section 36-7-4-
1003(a) requires that a person be “aggrieved” to seek judicial review of a board of zoning
appeals’s decision. In Bagnall, we explained that
To be aggrieved, the petitioner must experience a substantial grievance, a denial
of some personal or property right or the imposition of a burden or obligation.
The board of zoning appeals’s decision must infringe upon a legal right of the
petitioner that will be enlarged or diminished by the result of the appeal and the
petitioner’s resulting injury must be pecuniary in nature. A party seeking to
petition for certiorari on behalf of a community must show some special injury
other than that sustained by the community as a whole.

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Id. at 786 (quotations and citations omitted). The petitioner has the burden of proving that it is
“aggrieved.” Bagnall, 726 N.E.2d at 786 (requiring the petitioner to show that it was aggrieved);
see also Robertson v. Bd. of Zoning Appeals, 699 N.E.2d 310, 315 (Ind. Ct. App. 1998) (holding
that a petitioner must demonstrate that it is aggrieved); Union Twp. Residents Ass’n v. Whitley
County Redev. Comm’n, 536 N.E.2d 1044, 1045 (Ind. Ct. App. 1989) (holding that a petitioner
lacked standing when it “failed to demonstrate” that it was aggrieved).

Thomas’s contention that she was aggrieved hinged on her claim that the proposed
CAFO would significantly impair the value of her home. Thomas testified that she drove by
other CAFOs at various distances and on some found odors and on some did not. Both Thomas
and Oolman presented evidence on the effect of CAFOs on residential property values. Thomas
testified to her visits to CAFOs in five other counties. She also presented an expert who
testified, based on studies of other CAFOs, that Thomas’s property would lose seventy percent of
its value. The expert also presented articles concluding that residential properties near CAFOs
suffered substantial losses in value. On cross-examination, Oolman demonstrated that the
expert’s articles were from 1999 and 2001 and relied on data from other states relating to much
denser operations involving swine. Oolman also presented evidence that the expert’s opinions
and the publications did not account for increases in property values resulting from economic
activity attributable to CAFOs. Finally, Oolman presented expert testimony that real estate
within two miles of the four dairy CAFOs in nearby Huntington County sold faster and at a
higher price per square foot than other properties in that county.

The trial court evaluated this conflicting evidence and concluded that Thomas had not
established that she was an “aggrieved party.” We cannot say this conclusion was clearly
erroneous and therefore affirm the trial court.

Because we affirm the trial court’s finding that Thomas lacked standing, the remaining
issues on appeal are moot and we do not address them.

Conclusion

The judgment of the trial court is affirmed.

Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ., concur.

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