Altice, Judge.
Martin Richard Himsel, Janet L. Himsel, Robert J. Lannon, and Susan M. Lannon (collectively, the Plaintiffs) filed a complaint, alleging nuisance, negligence, and trespass, against Samuel T. Himsel, Cory M. Himsel, Clinton S. Himsel, 4/9 Livestock, LLC, and Co-Alliance, LLP (collectively, the Defendants). Specifically, the Plaintiffs alleged in their complaint that the concentrated animal feeding operation (CAFO) placed on 4/9 Livestock’s property in 2013 created noxious odors that are so extreme as to greatly diminish the Plaintiffs’ quality of life, reduce their property values, and alter their daily activities. In their complaint, the Plaintiffs also challenged the constitutionality of Ind. Code § 32-30-6-9, which is commonly known as the Right to Farm Act (the RTFA), and Ind. Code § 15-11-2-6(a), which requires the Indiana Code to be construed to “protect the rights of farmers to choose among all generally accepted farming and livestock production practices, including the use of ever changing technology.”
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The trial court… entered summary judgment in favor of the Defendants on all claims. On appeal, the Plaintiffs challenge the entry of summary judgment.
We affirm.
Samuel Himsel has farmed in rural Hendricks County his entire life. His sons, Cory and Clinton, also make their living farming in the county. In 2012, the three decided to start a hog-raising operation, and, in January 2013, they formed 4/9 Livestock. The Individual Himsel Defendants are the sole members of 4/9 Livestock. The Individual Himsel Defendants decided to locate the 4/9 Livestock operation at 3042 North 425 West in Danville (the Farm), which property had been in their family for more than two decades. Samuel’s parents acquired this farmland in the early 1990s, and the land had been used for agricultural purposes since at least 1941. Between at least 1994 and 2013, the Farm had been used consistently for crops.
In February 2013, Samuel submitted a rezoning petition to the Hendricks County Area Plan Commission to rezone 58.42 acres of farmland on the Farm. The land was zoned agricultural residential (AGR), and Samuel petitioned for it to be rezoned agricultural intense (AGI), which allows for CAFOs. Following a public hearing on March 12, 2013, at which Richard Himsel spoke in opposition to the rezoning, the Plan Commission unanimously recommended approval of the requested rezoning. …
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On March 26, 2013, the County Commissioners unanimously approved the rezoning and adopted the Plan Commission’s findings. After the property was rezoned, it was transferred from Samuel to 4/9 Livestock. The Plaintiffs did not appeal the rezoning decision. Thereafter, before improvement location permits were granted, the Plan Commission held two public hearings regarding the siting, design, and construction plans for the Farm’s CAFO, which included the construction of two 4000-hog production buildings. Additionally, in May 2013, the Indiana Department of Environmental Management (IDEM) approved two permits to construct and operate the CAFO buildings on the Farm. The Plaintiffs did not appeal IDEM’s permit approvals.
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The Plaintiffs live in the immediate vicinity of the Farm. Richard and Janet Himsel (collectively, the Himsel Plaintiffs) moved into their home in 1994. Their home is on a farm where the Himsel Plaintiffs raised livestock and grew crops until 2000, when they retired and sold much of their farmland. Richard grew up on this farm, and the farmhouse has stood since 1926. Robert Lannon built his home in 1971 and married his wife Susan in 1974. They have never farmed on their property but are accustomed to the usual smells that come with living in farm country, having lived there for over forty years.
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On October 6, 2015, the Plaintiffs filed the instant action raising claims of nuisance, negligence, and trespass against the Defendants and seeking a declaratory judgment that the Agricultural Canon is facially unconstitutional. The Defendants’ answer raised the RTFA as an affirmative defense. The State of Indiana intervened to defend the constitutionality of the challenged statute. Thereafter, the Plaintiffs amended their complaint to add as-applied constitutional challenges to application of the RTFA as a defense in this case.
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Application of the RTFA
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Contrary to the Plaintiffs’ suggestion on appeal, we need not determine precisely when farming originally began on the Farm. The designated evidence establishes that the land had been used for row crops since at least 1941. Further, the record clearly establishes that the Plaintiffs’ non-farming use of their properties began well after 1941. The Lannons built their non-farming residence in 1971, and the Himsel Plaintiffs began using their home as a nonfarming residence in 2000 after deciding to retire and sell most of their acreage.
“The [RTFA], by its plain terms, was intended to prohibit nonarigultural land uses from being the basis of a nuisance suit against an established agricultural operation.” TDM Farms, Inc. of North Carolina v. Wilhoite Family Farm, LLC, 969 N.E.2d 97, 111 (Ind. Ct. App. 2012). It is essentially a codification of the doctrine of coming to the nuisance. Id. at 110; see also Shatto v. McNulty, 509 N.E.2d 897, 900 (Ind. Ct. App. 1987) (“People may not move to an established agricultural area and then maintain an action for nuisance against farmers because their senses are offended by the ordinary smells and activities which accompany agricultural pursuits.”).
This is not a case where the Plaintiffs moved to the nuisance as that expression is typically understood. Indeed, the Farm did not change from crop farming to pig farming until well after the Lannons built their home and the Himsel Plaintiffs moved into theirs. Prior to the 2005 amendment to the RTFA, this would have constituted a significant change in the agricultural operation making the RTFA inapplicable. See Wendt v. Kerkhof, 594 N.E.2d 795, 798 (Ind. Ct. App. 1992) (farm changed from decades of grain farming to hog farming five years after plaintiffs became adjacent landowners), trans. denied. As noted above, however, the Plaintiffs acknowledge that in light of the 2005 amendment, the change in the agricultural operation here from crops to hogs did not constitute a significant change in the type of operation. See Parker, 988 N.E.2d at 324 (“By specifying that a conversion from one agricultural operation to another is not a significant change, the Act removes claims against existing farm operations that later undergo a transition from one type of agriculture to another.”). Thus, the coming to the nuisance doctrine, as applied by the RTFA, now encompasses coming to the potential future nuisance.
Agricultural uses have dominated the landscape surrounding the Plaintiffs’ properties, with a number of farmers in the area owning or having owned livestock. Richard Himsel, prior to retiring from farming, even had livestock on his property. The county’s Plan Commission and County Commissioners recognized the well-established, longstanding agricultural community in which the Farm was situated and indicated the county’s ongoing desire to maintain the rural character of Hendricks County’s agricultural west side. Further, the Comprehensive Plan for the area in question expressly lists CAFOs as a recommended land use.
Robert Lannon knowingly built his residential home in the middle of farm country, and the Himsel Plaintiffs lived and farmed on their property for a number of years before selling off much of their land and changing the use of their home to purely residential. None of the Plaintiffs can now be heard to complain that their residential use of their property is being negatively impacted because the use of the Farm changed from crops to hogs, a use that would not have been a nuisance in or around 1941 when the agricultural operation began on the locality.
The Plaintiffs contend that applying the RTFA in this manner will “have the extraordinary effect of removing any evidentiary burden by allowing CAFOs of any size to be built anywhere there is any history of agricultural activity.” Appellants’ Brief at 27 (emphases in original). We are not so sure. Moreover, we observe that requiring a defendant farmer to establish that his or her particular CAFO (rather than hog farming or CAFOs generally) would not have been a nuisance when the agricultural operation began on the locality would eviscerate the protections of the RTFA.
The Plaintiffs’ argument also ignores the significant local and administrative hurdles a farmer must overcome before being allowed to build a CAFO. In this case, after a number of public hearings and notices to adjoining landowners, the Defendants obtained rezoning of the Farm and building permits from the county approving the specific siting, design, and construction plans for the CAFO’s two buildings. The Plaintiffs did not seek judicial review of these decisions by county officials. The Defendants also applied for permits from IDEM for the construction and operation of the CAFO. The Plaintiffs did not appeal issuance of these permits. The Plaintiffs were provided ample due process to challenge the size and/or placement of the CAFO buildings on the Farm, yet they decided instead to wait and file a nuisance action more than two years later. In light of the RTFA, they put their eggs in the wrong basket. Their general nuisance claim fails as a matter of law.
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Constitutional Claims
The Plaintiffs contend that the RTFA is unconstitutional as applied to them because it violates the Open Courts Clause, the Takings Clause, and the Equal Privileges and Immunities Clause of the Indiana Constitution, as well as the federal Takings Clause. In sum, they assert that application of the RTFA has deprived them of their ability to enforce their long-vested property rights in their homes. The Plaintiffs also assert a facial challenge to the Agricultural Canon.
Open Courts Clause
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Here, the legislature has exercised its broad discretion and modified the substantive law of nuisance by eliminating a nuisance cause of action against agricultural operations except where the alleged nuisance is the result of negligent operation or where the conditions of I.C. § 32-30-6-9(d) are not met. The RTFA is rational and falls comfortably within the legislature’s legitimate constitutional authority.
Takings Clauses
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… the Plaintiffs have not been deprived of all or substantially all economic or productive use of their properties. The designated evidence reveals that the Plaintiffs’ properties have retained significant economic value. Indeed, their own expert valued the Lannons’ property at $51,500 (at an estimated 60% loss in value) and the Himsel Plaintiffs’ property at $181,2000 (at an estimated 49.5% loss in value) with the CAFO nearby. Cf. Penn. Cent., 438 U.S. at 131 (with respect to land-use regulations, reasonably related to the promotion of the general welfare, diminution in property value, standing alone, does not establish a taking); Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) (75% diminution in value caused by zoning law not found to be a taking). Moreover, they continue to reside in their residences, making valuable use of their properties, and have alleged no distinct, investment-backed expectations that have been frustrated by the CAFO. Finally, with respect to the character of the governmental action, we do not agree with the Plaintiffs that the RTFA has permitted a physical invasion of their property. While their property rights are clearly affected by application of the RTFA, the Plaintiffs cannot dispute that the regulation is reasonably related to the promotion of the common good. In sum, we conclude that the odorous emissions from 4/9 Livestock’s CAFO do not effect a taking.
Privileges and Immunities Clause
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Indeed, the RTFA affords preferential treatment to farmers, under certain statutory conditions, by conferring immunity from nuisance suits that are not based on operational negligence. The RTFA, itself, explains the policy behind this disparate treatment:
The general assembly declares that it is the policy of the state to conserve, protect, and encourage the development and improvement of its agricultural land for the production of food and other agricultural products. The general assembly finds that when nonagricultural land uses extend into agricultural areas, agricultural operations often become the subject of nuisance suits. As a result, agricultural operations are sometimes forced to cease operations, and many persons may be discouraged from making investments in farm improvements. It is the purpose of this section to reduce the loss to the state of its agricultural resources by limiting the circumstances under which agricultural operations may be deemed to be a nuisance.
I.C. § 32-30-6-9(b). This rationale provides a reasonable basis for treating farmers differently than their non-farming neighbors. Cf. KS&E Sports, 72 N.E.3d at 906-07 (“One explanation may be that the legislature … perceived that recent lawsuits against the firearms industry threatened its stability and jeopardized the continued availability of firearms even to law-abiding citizens wishing to exercise their Second Amendment. This rationale would provide a reasonable basis for treating sellers of firearms, which face such litigation threats, differently than sellers of knives, which do not.”). With respect to the second prong of the Collins test, we conclude that the RTFA’s preferential treatment is uniformly and equally available to all agricultural operations and although agricultural operations are treated differently under the RTFA than industrial operations, the two are not similarly situated and the express intent of the RTFA is to protect agricultural land. The RTFA does not violate Article 1, Section 23.
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Conclusion
We hold that the Plaintiffs’ nuisance and repackaged negligence and trespass claims are barred by the RTFA. Further, the Plaintiffs’ various claims that the RTFA is unconstitutional are unavailing, and we do not reach the question of the constitutionality of the Agricultural Canon due to judicial restraint. The trial court properly granted summary judgment in favor of the Defendants on all claims.
Judgment affirmed.
Brown, J. and Tavitas, J., concur