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CAFO papers disqualified by BZA

By BOB HANSEN - bhansen@newsexaminer.com

At the end of the day, the Board of Zoning Appeals took the safe way out of a challenge on Wednesday: members voted unanimously to follow procedures spelled out in the Area Planning Commission’s bylaws.

The board voted to disallow evidence that had been submitted in early July about how approving a request for a special exception to zoning rules would hurt a plan for building a CAFO on a neighbor’s property. The decision will allow the special exception case to go to a hearing on Monday. 

Both the APC and BZA are scheduled to hear the special exception request. The APC goes first, starting at 7 p.m. Monday in the Robert Wise Center for Performing Arts at Connersville High School. The BZA will hear the same request immediately after the APC.

The BZA had twice postponed action on the special exception request by Mark J. and Dena J. Bills. They have asked for a special exception to the county zoning regulations that would allow them to categorize an area on their land at 5554 N. Co. Rd. 850 W as a public recreation facility. If granted, the classification would block construction of a CAFO on the land next door.

A public hearing about the special exception had been originally scheduled on July 8. At that meeting, Area Planning Director Bill MacDaniel asked the Area Planning Commission to delay the hearing for a month, saying he needed more time to study information that had been submitted in the days just precdeding the hearing by Andrew Dora, who wants to build the CAFO. Dora submitted a remonstrance, or objection, to the Bills’ request.

APC rules state that documents to be considered in a case must be submitted five celandar days before the public hearing. That would have been July 3.

On July 8, at MacDaniel’s request, the APC passed a motion to table the hearing. The word “table” became an issue.

Several days before the Aug. 12 meeting, MacDaniel issued his staff recommendation against approving the Bills’ request, noting that he had considered the information submitted by Dora.

The Bills’ attorney then filed a protest and the Aug. 12 APC hearing was cancelled until the protest could be heard by the Board of Zoning Appeals. The BZA met Wednesday to consider the appeal.

The Bills’ attorney, Scott K. Jones of Cincinnati, said on Tuesday that the APC’s rules state that tabling means that when a hearing resumes, evidence submitted after the original deadline could not be considered in making a decision.

After hearing from him and Dora’s attorney, Jeffrey C. Rocker of Columbus, Ind.,  the BZA voted 4-0 that Jones is correct and the late-submitted information cannot be considered.

However, the BZA interim attorney, Geoffrey Wesling, pointed out that in the APC rules of procedure, those who testify during a public hearing can present new evidence. Thus, he said, Dora or his representative could read the information into the record and the APC and BZA would then have it in front of them.

Cook agreed that would be legal.

Kari Steele, who presided in the absence of Bill Crawford, chairman, clarified that the papers submitted after the five-day deadline will not be considered. The BZA voted 4-0 to agree.

After the meeting, Rocker said it’s likely that the papers he submitted on behalf of Dora will be read during Monday’s public hearing about the Bills’ special exception.

MacDaniel and the attorneys agreed that MacDaniel will prepare an email for board members stating which documents can be considered in their decision.