Arguments were heard Tuesday morning (June 5) in S&S Farms’ petition for judicial review of the Newton County Board of Zoning Appeals’ denial of its special exception application to build a confined animal feeding operation in Lincoln Township. The petition comes after the BZA denied the application by a 4-1 vote at an Aug. 22 public hearing. S&S Farms proposed to build a CAFO for the purpose of raising specialty swine to meet the needs and requirements of nationally recognized medical research facilities.

S&S Farms through its attorney Mark Van Der Molen argued that the decision of the BZA was arbitrary, capricious, an abuse of discretion, and not in accordance to the law.

“The board’s decision was not supported by substantial evidence,” said Van Der Molen. “The BZA needed to look at the evidence and not opinions, they failed to do that.”

Van Der Molen went on to argue that the BZA stated in its findings that the application provided adequate screening and buffering to outside properties, and the majority of the board ruled that the setbacks and development standards met the Newton County Zoning Ordinance requirements.

“The board then went and contradicted itself by stating that the location is too close to residential areas,” said Van Der Molen. “The board rendered its final decision based on hearsay, opinions and statements unrelated to the petitioner’s project itself.”

Newton County Attorney Pat Ryan argued the case for the Newton County Board of Zoning Appeals.

“For a special exception request there are additional conditions that need to be met that require a certain amount of discretion from the board,” said Ryan. “What is substantial evidence? The state law is very clear, all that is needed is a scintilla or just a hint of evidence for the board to justify its ruling. The applicant did not meet their burden to receive a special use permit.”

“The members of the BZA were appointed to the board for a reason,” added Ryan. “They are from this county, they know the area and the soil types. They know what areas are prone to flooding. They don’t check their common sense at the door and they use it when they make their findings.”

Ryan went on to add that concerns regarding the fears of odors, effects on water, and possible water contamination, and loss of property values that were brought up at the Aug. 22 hearing are reasonable for the board to consider when making its decision.

“The totality of all of these concerns are very reasonable,” said Ryan. “The case law and the record speak for itself. The biggest issue is the safety and welfare of the residents in that area.”

Van Der Molen countered by saying that Ryan’s argument only enhances his stance that the BZA put more weight on speculative opinions instead of evaluating the actual evidence that was presented.

“I am still waiting to hear that scintilla or any actual evidence the board used to support its decision,” said Van Der Molen. “The board made a mistake and it needs to be reversed.”

Newton County Superior Court Judge Daniel Molter listened to the arguments and explained why he is the judge sitting over the case.

“The petition was filed in Circuit Court and I am serving as the special judge for the case because Circuit Court Judge excused himself from it,” said Molter. “I could have ran from this case since it is an election year. I could have played the political game, but I took the case because I am looking out for the people and for the law. I am deeply offended by anyone who has or will suggest that I am in the pocket of anyone. I will look over the evidence and the case law that has been presented and make my ruling.”

Molter gave both attorneys 60 days to turn in all of the evidence in their findings.

S&S Farms is asking the court to issue an order directing the BZA to approve their application for special exception to allow for the building of the confined feeding operation.