Agriculture, it seems, has a zoning problem. On top of the various state or federal permits a farm or agribusiness may be required to obtain, local zoning ordinances can create yet another layer of red tape. This is particularly true in the case of zoning moratoria. But is it legal for a county or town in Indiana to decide overnight to completely prohibit something like a livestock barn? No! We recently secured a victory for a poultry producer facing an illegal moratorium.

A zoning moratorium is a ban on development. A moratorium is often deployed to temporarily block the construction of any new confined feeding operations while a county or town presumably works on a new permanent zoning ordinance to regulate these structures. The essence of a moratorium is to preserve the status quo. This Is an act of zoning and must comply with Indiana zoning statutes.

To pass any new zoning ordinance—including a moratorium—the county or town must follow specific steps laid out by statute. The plan commission must hold a public hearing. The commission must give notice of the hearing by publication at least 10 days before the hearing, including the time and date of meeting, the geographic area to which the proposal applies, a summary of the proposal, the place where a copy of the proposal is on file for review, and instructions on how to submit oral or written comments on the proposal. The planning commission must also give notice to interested parties. A plan commission can argue it “substantially complied” with these requirements, but only if the essential purpose of these rules is accomplished. For example, if notice was given 9 days in advance instead of 10, the “substantial compliance” argument might work. If the planning commission complies with these requirements and gives the proposal a favorable recommendation after the public hearing, the proposal moves on to the legislative body (county commissioners, town council, etc.). The legislative body also must give notice of its intention to consider the proposal at a meeting. The county commissioners or town council then can either adopt, reject, or amend the proposal at a public meeting. Covid-19 legislation allows e-meetings in certain circumstances, but the notice provisions all still apply.

If the plan commission or legislative body violate these rules, the moratorium is likely invalid. Unfortunately, there are multiple examples of Indiana zoning bodies attempting to rush through a moratorium to block a CFO or processing facility from being built. Officials may hear rumors of proposed barns or facilities, realize their zoning ordinances do not address those uses, and try to prevent construction with a hastily prepared moratorium. But if the officials do not comply with the Indiana zoning statutes, the moratorium is likely invalid.

Counties, towns, and other municipalities with zoning authority should ensure they comply with Section 600 of the Indiana zoning statutes, even when passing a temporary moratorium. Producers and applicants facing a rushed zoning moratorium should submit a completed building permit application and then consider whether the moratorium is valid. Contact legal counsel for help in analyzing the ordinance and strategizing next steps.