The Journal Gazette
Thursday, April 06, 2017 1:00 am

County gives animal feedlot cease-desist order


An Allen County judge has issued a cease-and-desist order against an east Allen County farm operation accused of illegally constructing buildings for a confined animal feeding operation to house more than 1,000 pigs.

The structures – two barn expansions and a house – went up at 2007 N. Roussey Road, New Haven, without required permits, according to Robert Eherenman, attorney for the Allen County Department of Planning Services.

He said the buildings required improvement location permits, which were never secured by the owner, WR Farms LLC.

WR Farms, which lists a Spencerville address on Van Zile Road, continued to use the premises in violation of the county's zoning ordinance, despite being notified “on numerous occasions” of the problem, according to court documents.

The planning department's website says improvement location permits are required as the first step in making improvements on vacant land. They are needed to build decks, sheds, new buildings, additions to existing buildings and swimming pools, the site says. 

Typically, improvement location applications are reviewed by planning staff members and sent to the county building department as a condition of issuing building permits. Other county agencies also may be notified, according to the website.

WR Farms and its registered agent, David Witmer Jr., are listed with the Indiana Department of Environmental Management as having a confined feeding operation permit for the Roussey Road site. The permit allows for up to 1,063 sows, or female pigs, 272 sows with litters and 160 adult pigs known as finishers for being in their last stage before market.

The permit was renewed in June.

Barry Sneed, IDEM spokesman, said confined feeding permits last for five years, indicating the operation has been allowed since at least 2011, when it was transferred to Witmer.

Sneed said IDEM would have had to be notified before the buildings were constructed and would have inspected them when finished for compliance with standards.

However, IDEM compliance is different from local zoning compliance, he said.

“Someone can have our permit, but that doesn't mean they can build without going through local zoning,” Sneed said, adding the farm is in good standing with IDEM.

Eherenman said the structures were built around 2012, but the department recently received and investigated a complaint. The suit was filed Jan. 27. Allen Circuit Court Judge Thomas Felts issued the cease-and-desist order March 16. 

John Caywood, Allen County building commissioner, said the order does not mean the farming operation must get rid of its animals or tear down the buildings.

He said the farm's agent must take action within 30 days to secure the improvement location permits to comply with zoning regulations. At that point, the process to obtain other needed building permits could begin, but the agent may face significant penalties, Caywood said. However, county officials are willing to work with the farm, he said.

“We're trying to gain compliance,” Caywood said, noting his and other county departments, including the planning and health departments, had been struggling for several months with how to deal with the situation.

“We chose to attack it holistically instead of department by department,” he said. “We decided to take it to court first for the (improvement location) permit, and then the rest would be resolved,” issue by issue.

Caywood said the farm's agent may have been confused by which rules applied.

The state has a Log Cabin Rule, which exempts individuals who build a house on property they own from some building code requirements, so long as the owners do the work without paid help and live in the house. The rule often comes into play in Amish communities, Caywood said.

And, under county zoning law, new buildings used for farming on agriculturally zoned land do not always need permits and may not be subject to building code inspections, he said.

Witmer may have believed those provisions applied to the farm, but they did not because it is corporately owned, Caywood said.

Witmer could not be reached for comment. Calls to a number listed to WR Farms were not returned.

Caywood said people wanting to build under the Log Cabin Rule or agricultural buildings typically get a no-fee improvement location permit to prevent later confusion. The permits also protect future buyers by being a record that the buildings may not have been built to building code standards, he said. 

Under the order, along with complying with the improvement location permit, the farm's agent must pay $1,200 in attorney fees. In turn, the county's zoning administrator will waive fines.

“If he doesn't come in or refuses to apply for the permit, we would have to go back to court, and that would be our last resort,” Eherenman said.

Eherenman said the farm operator would need to seek a special use from the Allen County Board of Zoning Appeals for the buildings and perhaps development standards variances if the structures do not conform with other aspects of the ordinance, such as setbacks.

Caywood said the department got an anonymous telephone complaint June 6 and an inspector could find no history of permits after a staff member visited the property June 7. The staff member condemned a barn because a second floor was balancing only on posts and electricity was not properly installed, department records show.

Property records show a previous home on the property was apparently demolished without permits, Caywood said, and there are also questions about whether the property has a proper septic permit allowing it to be occupied.

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