Court of Appeals of Indiana | Opinion 21A01-1707-MI-1693 | January 16, 2018 Page 1 of 22

ATTORNEYS FOR APPELLANT

Kim E. Ferraro

Samuel J. Henderson

Hoosier Environmental Council

Valparaiso, Indiana

ATTORNEY FOR APPELLEE –

RESPONDENT

Grant M. Reeves

Barada Law Offices LLC

Rushville, Indiana

ATTORNEYS FOR APPELLEE –

INTERVENOR

Todd J. Janzen

Brianna J. Schroeder

Janzen Agricultural Law LLC

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

House of Prayer Ministries, Inc. 

d/b/a Harvest Christian Camp,

Appellant-Petitioner,

v.

Rush County Board of Zoning 

Appeals,

Appellee-Respondent,

Milco Dairy Farm, LLC,

Appellee-Intervenor.

January 16, 2018

Court of Appeals Case No.

21A01-1707-MI-1693

Appeal from the Fayette Circuit 

Court

The Honorable 

Hubert Branstetter, Jr., Judge

Trial Court Cause No.

21C01-1610-MI-607

Najam, Judge.
Court of Appeals of Indiana | Opinion 21A01-1707-MI-1693 | January 16, 2018 Page 2 of 22

Statement of the Case

[1] House of Prayer Ministries, Inc., d/b/a Harvest Christian Camp (“House of 

Prayer”), appeals from the trial court’s denial of its petition for judicial review 

from the decision of the Rush County Board of Zoning Appeals (“BZA”) to 

grant a special exception to Milco Dairy Farm, LLC (“Milco”)1in Milco’s 

construction and operation of a concentrated animal feeding operation 

(“CAFO”), which was a dairy operation consisting of 1,400 head of cattle. 

House of Prayer raises three issues for our review, which we restate as the 

following five issues:

1. Whether, in its decision to grant a special exception to 

Milco, the BZA failed to properly evaluate the public interest.

2. Whether the BZA’s decision failed to properly consider 

impacts on surrounding properties.

3. Whether the BZA failed to properly consider setback 

requirements.

4. Whether the BZA’s decision violated House of Prayer’s 

right to an impartial tribunal.

5. Whether the BZA’s grant of a special exception to Milco

violated House of Prayer’s religious rights under the federal 

Religious Land Use and Institutionalized Persons Act, 42 

U.S.C.A. §§ 2000cc to 2000cc-5 (West 2017) (“RLUIPA”);

Indiana’s Religious Freedom Restoration Act, Ind. Code §§ 34-

 

1

 Milco has joined in the BZA’s brief on appeal.
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13-9-1 to -11 (2017) (“RFRA”); or Article 1, Sections 2 and 3 of 

the Indiana Constitution.

[2] We affirm.

Facts and Procedural History2

[3] In November of 2015, Milco filed a permit with the BZA for a special exception 

to Rush County zoning ordinances in order to obtain local approval for the 

construction and operation of a new CAFO. Over two public meetings in 

March and April of 2016, the BZA heard evidence and testimony for and 

against Milco’s permit request. The evidence established that Milco sought to 

maintain 1,400 head of cattle at the proposed CAFO location. To 

accommodate the waste produced by the livestock, Milco proposed to construct 

on-site storage for 17.4 million gallons of waste in open-air lagoons. Milco’s 

plans further provided that no run-off would occur from the property. Milco

presented evidence of mitigation efforts it planned to take to reduce noxious 

odors from its proposed CAFO, and its plans were approved by both the 

Indiana Department of Environmental Management and the local drainage 

board. 

[4] House of Prayer appeared at those meetings as a remonstrator against Milco’s 

permit request. House of Prayer operates a religious summer youth camp 

certified by the Indiana Department of Health. House of Prayer can host up to 

 

2

 The statement of facts in House of Prayer’s brief on appeal is not consistent with our standard of review. 

See Ind. Appellate Rule 46(A)(6)(b).
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768 children per summer at its camp, which consists of several “multi-day or 

week long overnight programs for children and teens over eight years old.” 

Appellant’s App. Vol. IV at 138. House of Prayer holds its summer camp 

outdoors on property that is one-half mile, and downwind, from Milco’s 

proposed CAFO. House of Prayer objected to Milco’s permit request on the 

basis that the waste produced by the CAFO would be dangerous to attendees at 

House of Prayer’s events and that the prevailing winds in the area would make 

the CAFO both a nuisance to House of Prayer and a risk to its attendees. 

House of Prayer also asserted that the construction of the CAFO would 

diminish House of Prayer’s property value.

[5] After all interested parties had presented to the BZA at the April 2016 hearing, 

the BZA called for a twenty-minute break before holding a vote on the permit 

request. During that break, Rush County Commissioner Mark Bacon 

approached BZA member Craig Trent and attempted to speak to Trent. But 

Trent promptly informed Bacon that Trent “couldn’t speak to him” and Trent 

directed Bacon to speak to the BZA’s attorney. Appellant’s App. Vol. VI at 

118. Trent later testified that he “d[id not] know” what Bacon had tried to say 

to him and that he “didn’t listen” to Bacon. Id. at 119. Rather, Trent “walked 

away.” Id. Bacon also later testified that he had no reason to doubt Trent’s 

statement that Trent did not hear what Bacon had attempted to say. Id. at 143. 

After the recess, the BZA held its vote and granted Milco’s petition for a special 

exception. In July of 2016, the BZA entered findings of fact in support of its 
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decision and granted the special exception subject to various conditions of 

approval.

[6] House of Prayer filed a petition for judicial review from the BZA’s decision and 

also sought declaratory judgment. The parties filed briefs for and against House 

of Prayer’s petition and designated evidence in support of their briefs. After 

argument to the court, the court entered findings of fact and conclusions 

thereon in which the court denied House of Prayer’s petition for judicial review 

and request for declaratory judgment. This appeal ensued. 

Discussion and Decision

Overview

[7] House of Prayer appeals from the trial court’s denial of its petition for judicial 

review.3 As our Supreme Court has explained:

A trial court and an appellate court both review the decision of a 

zoning board with the same standard of review. Crooked Creek 

Conservation and Gun Club, Inc. v. Hamilton County N. Bd. of Zoning 

Appeals, 677 N.E.2d 544, 547 (Ind. Ct. App. 1997), trans. denied, 

690 N.E.2d 1182 (Ind. 1997) (table). A proceeding before a trial 

court or an appellate court is not a trial de novo; neither court may 

substitute its own judgment for or reweigh the evidentiary 

findings of an administrative agency. Id. See also Equicor Dev., Inc. 

v. Westfield-Washington Twp. Plan Comm’n, 758 N.E.2d 34, 37 

(Ind. 2001). The appropriate standard of review, “whether at the 

trial or appellate level, is limited to determining whether the 

 

3

 House of Prayer does not appeal the denial of its request for declaratory judgment.
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zoning board’s decision was based upon substantial evidence.” 

Crooked Creek Conservation, 677 N.E.2d at 547.

St. Charles Tower, Inc. v. Bd. of Zoning Appeals of Evansville-Vanderburgh Cty., 873 

N.E.2d 598, 600 (Ind. 2007). Further:

When an aggrieved party seeks relief in court from an adverse 

administrative determination and attacks the evidentiary support 

for the agency’s findings, he bears the burden of demonstrating 

that the agency’s conclusions are clearly erroneous. Cundiff v. 

Schmitt Dev. Co., 649 N.E.2d 1063, 1066 (Ind. Ct. App. 1995). 

That standard requires great deference toward the administrative 

board when the petition challenges findings of fact or the 

application of the law to the facts. Id. But if the allegation is that 

the [agency] committed an error of law, no such deference is 

afforded and reversal is appropriate if an error of law is 

demonstrated. Id.

There is a presumption that determinations of a zoning board, as 

an administrative agency with expertise in the area of zoning 

problems, are correct and should not be overturned unless they 

are arbitrary, capricious, or an abuse of discretion. Id. A 

decision is arbitrary, capricious, or an abuse of discretion if it is 

not supported by substantial evidence. Rice v. Allen Cnty. Plan 

Comm’n, 852 N.E.2d 591, 597 (Ind. Ct. App. 2006), trans. denied.

MacFadyen v. City of Angola, 51 N.E.3d 322, 325-26 (Ind. Ct. App. 2016). 

Where, as here, the trial court has entered factual findings based only on a 

paper record, this Court will conduct its own de novo review of that record. 
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Cook v. Adams Cty. Plan Comm’n, 871 N.E.2d 1003, 1006 (Ind. Ct. App. 2007), 

trans. denied.

4

[8] House of Prayer raises a number of challenges to the BZA’s decision to grant a 

special exception to Milco. In particular, House of Prayer raises the following 

arguments on appeal: (1) the BZA did not properly evaluate the public interest

when it decided to grant a special exception to Milco; (2) the BZA did not 

properly consider the impact on surrounding properties; (3) the BZA did not 

properly consider setback requirements; (4) Trent’s participation in the BZA 

vote after the attempted ex parte communication with Bacon violated House of 

Prayer’s rights; and (5) the BZA’s decision violates House of Prayer’s religious 

rights under RLUIPA, RFRA, and the Indiana Constitution. We address each 

argument in turn.

Issue One: “Public Interest”

[9] We first consider House of Prayer’s argument that the BZA did not properly 

consider the public interest when it granted Milco the special exception. 

Pursuant to Rush County’s zoning ordinances: “[a] special exception shall not 

be granted . . . unless and until . . . [t]he Board of Zoning Appeals shall make a 

finding . . . that the granting of the Special Exception will not adversely affect 

 

4

 With respect to Bacon’s alleged interaction with Trent during the twenty-minute recess at the April 2016 

BZA meeting, the trial court received evidence that was not before the BZA. However, that evidence was 

only in paper form and was not produced at an evidentiary hearing in which the trial court acted as a fact 

finder. As such, our review of that evidence is de novo. Cook, 871 N.E.2d at 1006.
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the public interest.” Appellant’s App. Vol. VI at 24. In considering the public 

interest here, the BZA found as follows:

The BZA finds that the granting of the Special Exception will not 

adversely affect the public interest, subject to the additional 

conditions and restrictions placed on the project by the BZA. 

The public interest refers to the wellbeing of the Rush County 

community as a whole. While there may be some incidental 

nuisances associated with construction of the [CAFO] in the 

immediate area, as a whole[] the citizens of Rush County will 

benefit from the economic development opportunities this project 

brings. The evidence at the public hearing demonstrated that the 

[CAFO] project would provide economic benefits to the public 

through local property taxes and additional employment 

opportunities. Any nuisances involved are of the type expected 

from CAFO/CFO operations, which are clearly 

allowed/allowable uses under the Rush County Zoning 

Ordinance in the district where the proposed [CAFO] is to be 

located.

The BZA determined that the following were necessary 

additional conditions for such approval, all of which must be 

satisfied and will be placed on the project as a written 

commitment to run with the land:

1) All manure removed from the [CAFO] will be knifed in.

2) The truck entrance into the facility will be 100 feet wide and 

maintained for a distance of 200 feet back to the cul-de-sac/truck 

turn-around, as shown on the plans. There will also be a truck 

turn-a-round [sic] or cul-de-sac. The entrance and truck turnaround or cul-de-sac need not be paved, but [it] must be sufficient 

to support semi[-]truck traffic and equipment to allow for a space 

off of the roadway to prevent congestion on the roadway.
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3) The shelterbelt will include a minimum of 8 foot tall trees on 

all sides and shall be on top of a 6 foot berm on the eastern side 

of the project. The trees will initially be at least 2 feet tall.

4) Signed land agreements with area farmers adequate to allow 

for the disposal of all manure shall be turned in to the Rush 

County/Rushville Joint Planning and Zoning Office prior to the 

issuance of any improvement location permit.

5) No more than 1400 head of dairy cattle and no other livestock 

of any kind shall be permitted at this time at the [CAFO]. Any 

additional livestock of any kind will require an additional special 

exception subject to the same rules as an initial CAFO/CFO 

special exception application under the Rush County Zoning 

Ordinance.

The BZA finds that the granting of this special exception, subject 

to the additional conditions above, will not adversely affect the 

public interest.

Appellant’s App. Vol. V at 106.

[10] House of Prayer asserts that the BZA’s assessment of the public interest with 

respect to the “Rush County community as a whole” is inconsistent with a 

recent position the BZA took before this Court in Flat Rock Wind, LLC v. Rush 

County Area Board of Zoning Appeals. In Flat Rock, the BZA granted a special 

exception for the construction of a wind farm subject to setback requirements 

that were in excess of the minimum setback requirements under the relevant 

ordinances. We concluded that the BZA’s imposition of the additional setback 

requirements was consistent with the BZA’s broad authority under the zoning 
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ordinances to consider “the life, health, and safety of the surrounding 

landowners.” 70 N.E.3d 848, 861 (Ind. Ct. App. 2017), trans. denied. 

[11] House of Prayer asserts, in effect, that because the BZA imposed additional 

setback requirements in Flat Rock it was required to impose additional setback 

requirements against Milco. We cannot agree. Nothing in our opinion in Flat 

Rock suggests that the BZA must always impose additional setback 

requirements. Rather, in Flat Rock, we affirmed the BZA’s broad discretion 

under the zoning ordinances to consider the impact on other property owners in 

deciding whether, and under what conditions, to grant special exceptions, 

which is not inconsistent with the BZA’s decision in the instant appeal. 

Further, the BZA’s position in Flat Rock was not premised on a particular 

definition of “public interest,” nor did we hold that the BZA may not consider, 

in its discretion, the local economic impact on a case-by-case basis.5 In essence, 

House of Prayer’s argument on this issue seeks to have this Court reweigh the 

evidence in House of Prayer’s favor and to deny the BZA its discretion, which 

we cannot do. Accordingly, we cannot say that the BZA’s consideration of the 

“public interest” here was contrary to law.

 

5

 House of Prayer further asserts that there was “no such evidence” before the BZA of the CAFO’s economic 

impact “other than the self-serving statement of Milco’s owner . . . .” Appellant’s Br. at 21 & n.6. House of 

Prayer’s assertion is facially inconsistent—a self-serving statement is evidence. See Hughley v. State, 15 N.E.3d 

1000, 1003-04 (Ind. 2014).
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Issue Two: Surrounding Properties

[12] House of Prayer next asserts that the BZA failed to properly consider the 

impact of Milco’s CAFO on surrounding properties when it granted the special 

exception. According to the zoning ordinances, before it may issue a special 

exception the BZA “shall make written findings” and “shall ascertain that 

satisfactory provision and arrangement has been made concerning . . . [g]eneral 

compatibility with adjacent properties and other property in the district.” 

Appellant’s App. Vol. VI at 24-25. On this issue, the BZA’s written findings 

state: “Given that this parcel is located in an A-3 zoning district, where 

agricultural development is expected, the BZA finds that this use is compatible 

with the adjacent properties.” Appellant’s App. Vol. V at 108. 

[13] House of Prayer’s entire argument on this issue is premised on its assertion that 

“extensive evidence was presented to the BZA that the proposed CAFO will 

adversely affect both neighbors’ health and property values . . . . The BZA 

wholly disregarded this evidence.” Appellant’s Br. at 25. But we agree with the 

BZA that House of Prayer “just ignores any evidence that does not support its 

case and asks this Court to do the same, which is the opposite of what the 

standard of review requires.” Appellee’s Br. at 22. In particular, House of 

Prayer does not cite or discuss the substantial evidence that supports the BZA’s 

decision to grant the special exception to Milco. 

[14] In other words, House of Prayer asks this Court to consider only the evidence 

House of Prayer considers worthy of credit and the conclusions House of 

Prayer has reached from that evidence, which we cannot do. We also disagree 
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with House of Prayer’s assertion that the BZA’s findings on this issue “are 

merely a general replication of the requirements of the ordinance.” Appellant’s 

Br. at 25. We cannot say that the BZA’s decision on this issue is contrary to 

law.

Issue Three: Setback Requirements

[15] House of Prayer next asserts that the BZA erred when it permitted Milco’s 

CAFO to be located one-half mile, rather than one full mile, from House of 

Prayer’s property.6 According to the relevant zoning ordinance: “[s]eparation 

distance from an existing CFO/CAFO structure or school shall be a minimum 

of one (1) mile which shall be measured from the nearest CFO/CAFO structure 

to the school.” Appellant’s App. Vol. V at 220. But the ordinance does not 

define “school” for purposes of the CAFO setback. As such, House of Prayer 

asserts that a broad definition that captures its summer camp must apply. 

Appellant’s Br. at 27 (asserting that “school” in the zoning ordinance must 

mean any “organization that provides instruction” to or “the teaching of 

children”). 

[16] But we cannot say as a matter of law that the BZA was required to adopt such a 

broad definition of “school” over a more limited definition that applies to 

entities more “traditionally thought of and known as ‘school.’” See, e.g., John 

Doe v. Boone Cty. Prosecutor, 85 N.E.3d 902, 909 (Ind. Ct. App. 2017). A BZA’s 

 

6

 We address House of Prayer’s argument that not applying the one-mile setback provision to it violates 

RLUIPA in Issue Five.
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interpretation of a zoning ordinance, which it is charged with the duty of 

enforcing, “is entitled to great weight,” unless that interpretation “would be 

inconsistent with the [ordinance] itself.” St. Charles Tower, 873 N.E.2d at 603 

(quotation marks omitted). We conclude that the omission of a definition of 

“school” within the ordinance rendered that language ambiguous, which placed 

the interpretation of that language within the reasonable discretion of the BZA. 

And we cannot say that the BZA’s decision that “school” does not include 

House of Prayer’s summer camps was an interpretation inconsistent with or 

contrary to the ordinance itself.

[17] Still, House of Prayer asserts that the BZA’s interpretation of “school” violates 

the Equal Privileges and Immunities Clause under Article 1, Section 23 of the

Indiana Constitution.7 In particular, House of Prayer states that applying the 

one-mile setback to “other types of schools, but not youth camps,” is disparate 

treatment that is not reasonably related to inherent characteristics that 

distinguish the unequally treated classes. Appellant’s Br. at 29 (footnote 

omitted). House of Prayer further asserts that the BZA’s preferential treatment 

is not uniformly applicable and equally available to all persons similarly 

situated. See, e.g., Collins v. Day, 644 N.E.2d 72, 78-79 (Ind. 1994).

 

7

 In its brief, the BZA suggests that House of Prayer lacks standing to raise a claim under Art. 1, § 23 because 

House of Prayer is an incorporated entity rather than a “citizen.” Appellee’s Br. at 25 n.12; see Ind. Const. 

art. 1, § 23. But the Indiana Supreme Court has applied Art. 1, § 23 to businesses. See, e.g., Whistle Stop Inn, 

Inc. v. City of Indianapolis, 51 N.E.3d 195, 202-03 (Ind. 2016). Thus, we are not persuaded by the BZA’s 

suggestion.
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[18] As our Supreme Court has stated, we apply a two-part test for determining a 

statute’s validity under Article 1, Section 23:

First, the disparate treatment accorded by the legislation must be 

reasonably related to inherent characteristics which distinguish 

the unequally treated classes. Second, the preferential treatment 

must be uniformly applicable and equally available to all persons 

similarly situated.

Whistle Stop Inn, Inc. v. City of Indianapolis, 51 N.E.3d 195, 198 (Ind. 2016) 

(citation omitted). We presume an ordinance to be constitutional, and the 

burden is on the challenger to “negate every conceivable basis which might 

have supported the classification.” Id. (quotation marks and alterations 

omitted).

[19] As to the first part of our Article 1, Section 23 test, we agree with the BZA that 

the disparate treatment is reasonably related to inherent characteristics that 

distinguish schools from summer camps. Among other reasons, schools are 

highly regulated by the Indiana Department of Education; the school year lasts 

180 full instructional days; and, generally, children under eighteen years of age 

in Indiana must attend school. See, e.g., I.C. §§ 20-30-2-3, -33-2-6. Voluntary, 

week-long summer camps do not have such characteristics. And a one-mile 

setback, rather than a one-half mile setback, is reasonably related to those 

inherent characteristics.

[20] We also agree with the BZA’s assessment under the second part of our Article 

1, Section 23 test. The one-mile setback requirement for schools and one-half 
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mile setback for other entities treats all schools the same and it treats all 

summer camps the same. Thus, the ordinance is “uniformly applicable and 

equally available to all persons similarly situated.” Whistle Stop, 51 N.E.3d at 

198. House of Prayer has not met its burden to demonstrate that the BZA’s 

application of the ordinance is contrary to Article 1, Section 23.

Issue Four: Alleged Ex Parte Communication

[21] We next consider House of Prayer’s argument that Bacon’s attempt to 

communicate with Trent during the twenty-minute recess at the April 2016 

BZA meeting violated House of Prayer’s rights. In particular, House of Prayer 

asserts that Bacon’s attempt to communicate with Trent violated House of 

Prayer’s right to an impartial hearing before the BZA, which right is secured by 

statutory and constitutional provisions. See, e.g., City of Hobart Common Council 

v. Behav. Inst. of Ind., LLC, 785 N.E.2d 238, 250-51 (Ind. Ct. App. 2003).

[22] Although the parties dispute the proper standard to be applied to this issue, we 

conclude that the dispositive question is whether House of Prayer presented any 

evidence to show that an ex parte communication between Bacon and Trent 

actually occurred. Despite House of Prayer’s strident assertions to the contrary 

on appeal, our review of the record demonstrates that there is no such evidence. 

Rather, the record is clear that Bacon attempted to speak to Trent but that Trent 

did not listen to Bacon, did not know what Bacon had tried to say to him, told

Bacon to talk to the BZA’s lawyer, and walked away. Bacon also testified that 

he had no reason to doubt Trent’s testimony that Trent did not hear him. The 
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undisputed evidence thus shows that there was no ex parte communication in 

the first instance. As such, House of Prayer’s argument on this issue must fail.

Issue Five: House of Prayer’s Religious Rights

[23] Finally, House of Prayer asserts that the BZA’s grant of the special exception to 

Milco violates House of Prayer’s religious rights. In particular, House of Prayer 

asserts that the BZA’s decision violates the following: RLUIPA, RFRA, and 

the Indiana Constitution. We address each of the House of Prayer’s religious 

arguments in turn.

RLUIPA

[24] We first consider House of Prayer’s argument that the BZA violates House of 

Prayer’s rights under RLUIPA. Under RLUIPA, “[n]o government shall 

impose or implement a land use regulation in a manner that imposes a 

substantial burden on the religious exercise of a person, including a religious 

assembly or institution, unless the government demonstrates that imposition of 

the burden” is both “in furtherance of a compelling government interest” and 

“the least restrictive means of furthering that compelling government interest.” 

42 U.S.C.A. § 2000cc(a)(1). RLUIPA further provides that “[n]o government 

shall impose or implement a land use regulation in a manner that treats a 

religious assembly or institution on less than equal terms with a nonreligious 

assembly or institution.” 42 U.S.C.A. § 2000cc(b)(1). RLUIPA defines a “land 

use regulation” in relevant part as “a zoning . . . law, or the application of such 

a law, that limits or restricts a claimant’s use . . . of land . . . , if the claimant 
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has . . . [a] property interest in the regulated land . . . .” 42 U.S.C.A. § 2000cc-5(5) 

(emphasis added).

[25] House of Prayer asserts that the BZA’s decision is a substantial burden on 

House of Prayer’s religious exercise that does not pass the strict scrutiny test 

articulated in RLUIPA and that the BZA’s decision with respect to the setback 

requirement does not treat House of Prayer on equal terms with nonreligious 

entities. However, we conclude, as a matter of first impression, that RLUIPA 

is not available to House of Prayer. By its plain terms, RLUIPA may be raised

only by a claimant who has a “property interest in the regulated land.” Id. 

That is, RLUIPA applies to land use regulations imposed by a government 

directly on religious groups. 

[26] The land regulated by the special exception here is wholly owned by Milco. 

House of Prayer has no property interest in that land. As such, House of Prayer 

may not rely on RLUIPA. See id.

[27] Nonetheless, House of Prayer asserts that “regulated land” in RLUIPA must 

mean any land that is affected by a regulation, even if the regulation is 

specifically directed to land in which the claimant has no interest. Appellant’s 

Br. at 41-45. We decline House of Prayer’s request to disregard the plain 

language of RLUIPA and, in its place, to apply an expansive and vague 

requirement that RLUIPA instead be available to any property owner whose 

interests might be affected by a given regulation. Indeed, the special exception 

here contemplates the CAFO’s effect on the entire “Rush County community.” 
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Appellant’s App. Vol. V at 106. Under House of Prayer’s reading of RLUIPA, 

then, every citizen in Rush County would potentially have a RLUIPA claim 

against the special exception. That would be an absurd result, and if the statute 

were ambiguous we would be obliged to avoid interpreting it in a way that led 

to that result. See, e.g., Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575 

(1982). In any event, the plain language of RLUIPA speaks for itself, and the 

judiciary has no discretion to substitute different language for that of the statute. 

E.g., Carcieri v. Salazar, 555 U.S. 379, 392 (2009). Accordingly, House of 

Prayer’s RLUIPA claims must fail.

RFRA

[28] We next turn to House of Prayer’s arguments under Indiana’s RFRA. We 

initially note that there is no dispute that RFRA entitled House of Prayer, as a 

remonstrator against Milco’s request for a special exception, to a fact-finding 

hearing on its religious-exercise claim, which was held here by the BZA. I.C. §§ 

34-13-9-1, -2, -10(a).8 Indeed, by its plain terms, Indiana’s RFRA expressly 

permits all persons9in Indiana in any “judicial or administrative proceeding,” 

other than actions based on certain claims of discrimination or claims against 

private employers, to assert their exercise of religion as a claim or defense 

 

8

 The only published opinion in Indiana that applies our RFRA is Tyms-Bey v. State, in which we held that 

the State’s authority to collect taxes due or to prosecute the failure to pay taxes due is uniquely exempt from 

the application of RFRA. 69 N.E.3d 488, 492 (Ind. Ct. App. 2017), trans. denied. As the instant appeal is not 

a tax case, Tyms-Bey is not instructive authority here.

9

 Indiana’s RFRA defines “person” broadly, and that definition includes various businesses and other 

organizations. I.C. § 34-13-9-7. There is no dispute in this appeal that House of Prayer is a “person” under 

Indiana’s RFRA.
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against government action, regardless of whether the government is a party to 

the proceeding. I.C. § 34-13-9-9.

[29] Similar to RLUIPA, Indiana’s RFRA prohibits “a governmental entity” from 

“substantially burden[ing] a person’s exercise of religion, even if the burden 

results from a rule of general applicability.” I.C. § 34-13-9-8(a). However, “[a] 

governmental entity may substantially burden a person’s exercise of religion” 

when the burden “is in furtherance of a compelling governmental interest” and 

“is the least restrictive means of furthering that compelling governmental 

interest.” I.C. § 34-13-9-8(b). That is, in order to substantially burden a 

person’s exercise of religion, the government must show that “it lacks other 

means of achieving its desired goal without imposing” that burden, which

requires a “focused inquiry” that “scrutinizes the asserted harm . . . to particular 

religious claimants.” Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2779-

80 (2014) (discussing the federal version of RFRA); see also I.C. §§ 34-13-9-5, -7 

(adopting the holdings of Burwell under Indiana’s RFRA).

[30] Here, House of Prayer asserts that the grant of the special exception 

substantially burdens House of Prayer’s exercise of religion by “imperiling the 

health of the children” at House of Prayer’s summer camp. Appellant’s Br. at 

48. House of Prayer further asserts that the imposition of that burden is not in 

furtherance of a compelling government interest.10 In response, the BZA asserts 

 

10

 House of Prayer does not assert that the BZA was required, as a matter of law, to enter findings that 

specifically addressed House of Prayer’s RFRA claim. Accordingly, as noted above, our review is limited to 
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that House of Prayer presented no evidence that its exercise of religion has been 

or will be substantially burdened by the grant of the special exception.

[31] We do not agree with the BZA that House of Prayer presented no evidence of a 

substantial burden on the exercise of its religion. House of Prayer presented 

expert testimony to the BZA that the construction of the proposed CAFO 

would harm the health of attendees at House of Prayer’s summer camp through 

both noxious odors and waste run-off. An obvious and reasonable inference 

from that evidence is that fewer people would, as a consequence, attend House 

of Prayer’s camp, which in turn would adversely affect House of Prayer’s ability 

to provide religious guidance to those who might be interested in it. We also 

agree with House of Prayer that an obvious and reasonable inference from that 

evidence is that the ability of attendees to focus could be adversely affected. 

[32] But the BZA acted as a fact finder on the evidence before it, and it did not credit 

House of Prayer’s evidence. Rather, the BZA credited Milco’s evidence with 

respect to mitigation efforts Milco intended to take to abate noxious odors and 

avoid waste run-off from Milco’s property. The BZA further imposed various 

other mitigation requirements on Milco as a condition of granting the special 

exception. In other words, the BZA found, as a matter of fact, that House of 

Prayer would not be substantially burdened in the exercise of its religion by the 

grant of the special exception.

 

determining whether the BZA’s decision was based upon substantial evidence. St. Charles Tower, 873 N.E.2d 

at 600 (quotation marks omitted).
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[33] House of Prayer’s argument to the contrary on appeal is, in its effect, a request 

for this Court to reweigh the evidence that was before the BZA, which we 

cannot do. The BZA’s apparent assessment that House of Prayer will not be 

substantially burdened in the exercise of its religion by the grant of the special 

exception is supported by substantial evidence. Accordingly, we cannot say 

that the BZA’s decision on this issue is contrary to law.

Article 1, Sections 2 and 3 of the Indiana Constitution

[34] Finally, House of Prayer asserts that the grant of the special exception violates 

its religious rights under Article 1, Sections 2 and 3 of the Indiana Constitution. 

In particular, House of Prayer asserts that the grant of the special exception 

materially burdens its constitutionally protected religious rights. “A [state 

constitutional] right is impermissibly alienated when the State materially 

burdens one of the core values which it embodies.” Price v. State, 622 N.E.2d 

954, 960 (Ind. 1993). 

[35] However, having concluded that the BZA had before it substantial evidence to 

support its decision that House of Prayer’s exercise of religion has not been and 

will not be substantially burdened under Indiana’s RFRA, we likewise conclude 

that the BZA’s decision will not materially burden House of Prayer’s religious 

rights under Article 1, Sections 2 and 3 of the Indiana Constitution. Thus, 

House of Prayer’s argument under Article 1, Sections 2 and 3 of the Indiana 

Constitution must fail.
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Conclusion

[36] In sum, we affirm the trial court’s denial of House of Prayer’s petition for 

judicial review.

[37] Affirmed.

Mathias, J., and Barnes, J., concur.