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First test of ag rules erupts in conflict

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GREENFIELD — Hancock County’s executive branch is starting to think twice about an agribusiness ordinance they signed off on earlier this year, saying now it’s being interpreted too strictly.

The ordinance was drafted to provide guidelines to farmers looking to expand their businesses beyond simply selling what they can grow. The ordinance allows for new types of activities, known as agribusiness or agritourism, that are intended to generate more revenue and attract more visitors to Hancock County farms.

It was drafted at the request of the county after one such operation, Fortville’s Piney Acres, expanded into activities beyond what the county’s zoning code addressed.

After a year and a half of discussion and revision, the ordinance was signed by commissioners in May.

Piney Acres’ owner, Rex Zenor, was the first to apply for permits under the new rules.

Over the course of several months, Zenor presented a business plan that included dozens of activities that would take place at varying times throughout the year on his 70-acre Christmas tree farm. The majority for which Zenor required county permission were approved; several were denied.

Last Thursday, Zenor, asked the Hancock County Board of Zoning Appeals to re-examine one of those denied requests: permission to operate a haunted loft.

Mike Dale, county planning director, previously denied the request for a temporary permit, due to a concern for neighbors and no obvious tie to the promotion of agriculture.

Dale has sole discretion over those activities, but applicants who disagree can appeal the decision to the BZA. The BZA turned down Zenor’s appeal, 4-1.

Tuesday, three people complained about Thursday’s decision to the Hancock County Commissioners, saying the agribusiness ordinance is being interpreted too strictly and that government should not prohibit business owners from bringing events to the county.

“The man’s trying to pull people into his property for the purpose of trying to get people to (come back) to buy Christmas trees later in the year,” said George Langston, a tea party member who says the new law is limiting the property owner’s rights.

Doubts over the agribusiness ordinance have been brewing for more than a week. Though the ordinance makes clear that the BZA has final say on all decisions regarding all so-called Type 2 (temporary) and Type 3 (long-term) agribusiness activities, Zenor approached the Hancock County Commissioners last Tuesday about appealing Dale’s decision. Out of their jurisdiction, the commissioners sent him back to the BZA.

But Commissioners President Tom Stevens said he invited Zenor to the commissioners’ meeting last week with the hope that they could do something to allow the haunted loft and firearms for re-enactments. The ordinance, however, does not give commissioners a final vote on an appeal.

“There is a process that was correctly followed,” Dale said. “I do the best job I can to interpret the letter and intent of the ordinance; then, if the petitioner or applicant disagrees, they can appeal my decision to the BZA.

“In this case, we followed that procedure, and two of the commissioners are not happy with the outcome.”

Stevens also thinks the law is being interpreted too strictly, and that it’s not a matter of how the ordinance is written but rather how Dale and the BZA are interpreting its intent.

Stevens said he signed off on the law as a way to expand businesses and bring tourists to the county.

“It’s being interpreted by the plan director as a restricting ordinance,” Stevens said. “It’s a reason to deny things that in my opinion shouldn’t be denied.”

However, the ordinance has given farmers more options when it comes to expanding their businesses. Prior to the passing of the agribusiness ordinance, Hancock County’s zoning code allowed only for farmers to sell things grown on their land.

All other activities required an annual temporary permit. Now, farmers have the opportunity to apply for two types of permits that allow for other activities on their land, so long as they promote agriculture.

“I don’t think the ordinance was intended to give unrestricted approval to do whatever they may want to do,” Dale said. “It gives the county some discretion in determining what types of uses are appropriate that would promote agriculture in the county.”

Though the ordinance was discussed and refined for more than a year before the commissioners signed it, they are now finding fault with that interpretation.

Commissioner Brad Armstrong said he, too, wants businesses to be able to bring events to the county.

“When we passed this ordinance, my intention was to promote events like this,” Armstrong said. “I guess I would say I’m on a pro-Easter egg hunt and pro-haunted house agenda.”

Dale said, however, that just because something like a haunted loft was denied for Zenor’s property does not mean the same activity would be denied elsewhere.

“It depends on how that permit would impact surrounding property owners,” he explained. “We take a look on a case-by-case basis for every type of permit.”

Earl Smith, who played host to the Rebel Race obstacle course and mud run that brought thousands of visitors to his farm last month, said he, too, is worried about new restrictions. Smith applied for a temporary permit before the agribusiness ordinance was signed into law, but now he worries the strict interpretation could mean the race wouldn’t be allowed next year.

Smith is also a Democratic candidate for Hancock County Council, a member of the county’s tourism commission and president of the Hancock Harvest Council, a group that helped write the agribusiness ordinance.

John Priore, also a tea party member, said perhaps the ordinance should be suspended temporarily so language can be changed.

Armstrong said perhaps a commissioner will go to an upcoming meeting of the BZA to express the board’s views.

The uproar over Dale and the BZA’s interpretation of the ordinance is coming after just the first test of the ordinance. So far, no other residents have approached Dale’s office about applying for Type 2 or Type 3 agribusinesses.

“We’ve only had one test case so far,” Dale said. “I think the ordinance is working the way it should. It’s OK that there’s disagreement. It seems unlikely that we’d have it nailed down perfectly the first time out of the box.”

The ordinance is the first of its kind in the state. Dale said because the committee drafted the ordinance completely from scratch, tweaks are bound to be needed over time.

“I think it’s always appropriate to go back any time, regardless of how old or new, to see if we can do a better job,” he said.

Dale said now, the commissioners, BZA and planning office need to decide where the problem lies. Is it the ordinance itself? Is it the interpretation? Is it a misunderstanding of the ordinance’s intent?

Stevens says he doesn’t know what a good solution is.

He said it’s a Republican philosophy that the smaller the government is, the better. Property owners’ rights shouldn’t be taken away as long as it’s not adversely affecting a neighbor, he said.

That’s the sticking point.

Zenor’s neighbors argue that allowing a haunted loft and gunfire would adversely affect them.

Claudia Pope is Zenor’s nearest neighbor. Her home sits just several hundred feet from the Piney Acres property line. She said allowing things like a haunted loft and gunfire during historical re-enactments would take away from her family’s right to enjoy their own property.

“The noise would affect my family,” Pope said. “He wants to have it open until midnight, so (visitors) would be leaving the area around midnight.

“I have a family, and we don’t really want to be disturbed at midnight or late hours, after my daughter goes to bed.”

Striking a balance between those two interests – farmers looking to increase the profitability of their land and rural residents with a right to enjoy the peace and quiet of a rural lifestyle – has been at the heart of discussion around this ordinance since the planning stages started nearly two years ago.

“The general discussion is to what extent do individual property owners’ rights supersede those of their neighbors’ right of use and enjoyment of their own property?” Dale said.

With a new ordinance, Dale said he has been erring on the side of caution when making decisions so far, with the knowledge that petitioners who disagree with his decision could always take their appeal to the BZA.

“I feel I owe caution to the surrounding landowners,” he said. “I think that’s a fair precaution, to protect he interests of surrounding property owners.”

That has been especially true in the case of Piney Acres, where tempers have flared and emotions have run high at times between Zenor and his neighbors. The vitriol surrounding the case has only complicated the debate.

“It just seems like you have two neighbors that really hate each other,” Armstrong said. “We don’t want in the middle of that.”

“There’s not a perfect solution,” Stevens added.

Despite the ongoing discussion, Dale said he does not feel the ordinance is too restrictive.

“I think we’re on the right track,” he said. “Over time, we may find it to be too restrictive or too liberal, but right now I think it’s OK.”

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