Another lawsuit filed in attempt to stop CAFO
by Rochelle Schlemmer

Another step has been taken by those opposing the Toll-Tail Dairy with the filing of a lawsuit seeking permanent injunction against Toll-Tail Dairy, LLC. 

Toll-Tail Dairy owners Art and Marion Venema recently announced that they have been cleared to begin construction on their 3,630-head dairy located south of SR 120 on the west side of CR 1100E in LaGrange County.

This step came following the Venemas’ announcement and is in the form of a lawsuit filed by adjacent property owner Jeffrey Wynn. Wynn is represented by Neal Lewis, who also served as representation in a previous lawsuit filed by the Hoosiers for Sustainable Agriculture.

Wynn has a right to a mandatory injunction and is entitled to pursue a private cause of action to prohibit violation of local zoning law, without resort to any administrative procedures or appeals.

Toll-Tail Dairy, LLC did not come into legal existence until April 23, 2007. Prior to that date, Toll-Tail was incorrectly represented to be an existing legal entity in all applications and filings with local and state agencies and officers, including the LaGrange County Zoning Department, according to the lawsuit.

Toll-Tail received its National Pollutant Discharge Elimination System (NPDES) permit from When/where did the info come from on having to remove the dead cows from the farm? When/where did the info come from on having to remove the dead cows from the farm?the Indiana Department of Environmental Management (IDEM) in May 2007.

Upon the announcement that the dairy was cleared to begin, it was stated that Toll-Tail was not required to abide by the amendments that were made to the LaGrange County Zoning Ordinance, which were passed on April 16, 2007, because they had already applied for their permits. By state law (Indiana Code 36-7-4-1109), an entity must comply with the laws in existence at the time application permits were filed and not by the laws in existence at the time permits are actually granted.

The basis of this lawsuit is that Toll-Tail Dairy, LLC., which is the name on all permits filed, was not in legal existence at the time that application permits were filed.

The plaintiff, Jeffrey Wynn, owns a residence that shares common boundaries with the CAFO as well as property where CAFO manure will be spread.

The suit states that, "As an adjoining landowner, Jeffrey Wynn will suffer special damages as a result of Toll-Tail’s violation of local zoning law."

The suit also states that Toll-Tail will violate the amendments to the LaGrange County Zoning Ordinance, particularly under use regulations and residential setbacks.

The amended LaGrange County Zoning Ordinance states that, "New CAFOs shall be set back at least 1,500 feet from any residence, other than the applicant."

The lawsuit states Lack of Grandfathering and names a 2005 decision of the Indiana Supreme Court, "the Indiana Supreme Court ruled that new amendments to zoning ordinances apply to any facility that has not completed substantial construction." It goes on to state that from the 2005 case in Marion County, the legislature enacted Indiana Code 36-7-4-1109 which will grandfather the rights of a "person" if that "person" has met legal requirements. Wynn and his counsel stand firm that Toll-Tail Dairy, LLC was not a "person" when application permits were filed.

Under Indiana Code 22-12-1-18, a "person" is "an individual, corporation, limited liability company, partnership, unincorporated association, or governmental entity."

Time will have to tell the fate of this controversy as many on both sides of the argument will have to await a decision on this most recent lawsuit.