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State Law Protections Granted to Religious Groups Don't Provide Challenging Special Use Exception

Updated: Apr 6, 2021

Image by Edwin Remsberg.  Aerial image of Glade Haven Farms LLC, showing dairy barns, grain silos, and pastures.
Image by Edwin Remsberg. Aerial image of Glade Haven Farms LLC, showing dairy barns, grain silos, and pastures.

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In this post, I want to highlight a state court decision out of Indiana. In House of Prayer Ministries v. Rush County Board of Zoning Appeals, the Indiana Court of Appeals found that the county’s zoning authority board did not violate House of Prayer’s religious rights under state and federal protections when granting a special exception for Milco Dairy to build a new dairy facility in the county.


In 2015, Milco sought a special exemption to a Rush County ordinance to build and operate a new concentrated animal feeding operation (CAFO) in the county. The proposed CAFO was to be a dairy with 14,000 head of cattle with open-air lagoons to hold 17.4 million gallons of waste, and the dairy would have no run-off. Milco included plans on how the dairy would mitigate and reduce its noxious odors, plans which had been approved by the Indiana Department of Environmental Management and local officials.

The county held two hearings in 2016 on this permit request. At the hearings, House of Prayer appeared to protest the permit request formally. House of Prayer operates a church camp on a property one-half mile and downwind from the proposed dairy. The camp argued that the waste would produce odors which would make the dairy a nuisance to the camp, create a risk for campers, and reduce the camp’s property values.

After the hearings, the county granted the special exception subject to conditions. After the approval, House of Prayer filed for judicial review of the decision. The district court denied this petition and House of Prayer appealed to the state Court of Appeals.

Case Before Indiana Court of Appeals

While House of Prayer argued five points on appeal, we are going to focus on only one of those points. That point is the argument that the county zoning board’s decision violated House of Prayer’s religious rights under federal Religious Land Use and Institutionalized Persons Act (RLUIPA), the state’s Religious Freedom Restoration Act (RFRA), or the state’s Constitution.

Religious Land Use and Institutionalized Persons Act

The RLUIPA is a federal law restricting governments from imposing a substantial burden on the religious exercise of individuals and religious assembly or institutions unless the government meets a burden of proof. The government can impose a substantial burden on religious exercise by showing the restriction furthers a compelling government interest and is the least restrictive means of furthering the compelling state interest.

A party must raise a claim that the RLUIPA substantially burdened the religious exercise of a person or organization with a property interest in the regulated land. In this case, the party with a property interest in the regulated land was Milco, not House of Prayer, according to the court of appeals. House of Prayer argued that RLUIPA required “regulated land” to be any land affected by a regulation. The court of appeals disagreed with this argument because it would give every citizen in the county a FLUIPA claim. The court denied this argument on appeal.

State’s Religious Freedom Restoration Act

Indiana’s RFRA required the county to hold a hearing on House of Prayer’s religious-exercise claim. The state’s RFRA allows all persons in Indiana in any judicial or administrative hearing to assert their exercise of religion as a claim or defense against a government action. The RFRA is not a defense in certain claims of discrimination or claims against a private employer.

Under the state’s RFRA, a government entity cannot substantially burden a person’s exercise of religion. An exception to this rule is if the government entity can show a compelling government interest and using the least restrictive means to further that interest.

House of Prayer argued that the special exception substantially burdened House of Prayer’s exercise of religion and this burden was not furthering a compelling government interest. House of Prayer presented expert testimony at the hearings that the construction of the dairy would harm the health of campers at its summer camps from the noxious odors and waste run-off.

In reviewing this argument, the court of appeals pointed out that the county weighed this evidence of impact on House of Prayer when granting the special exception. In doing so, the county required the dairy to mitigate noxious odors and avoid waste runoff from the property. By requiring these mitigation practices, the granting of a special exception would not substantially burden House of Prayer’s exercise of religion. The court denied the RFRA claim because mediation would mean no substantial burden.

Indiana Constitution Claims

Finally, House of Prayer argued that granting the special exception would violate House of Prayer’s constitutional rights to free exercise of religion. The court rejected this argument based on the earlier findings that the county’s having supported the decision to grant the special exception would not substantially burden House of Prayer religious rights.

Why Care?

The House of Prayer’s claims are novel claims that the permitting of a dairy could violate the religious rights of a neighboring landowner, and the Indiana Court of Appeals did not buy this claim in this case. Maryland and Delaware do not have similar religious freedom restoration acts, but Virginia does. All three states have some form of religious protection in their individual state constitutions. Currently, no similar challenge has been filed in Delaware, Maryland, or Virginia.

With all that said, this case is worth reviewing because it shows a new approach a neighboring landowner may take in challenging the building or expanding of an existing animal operation. A religious youth camp neighboring could potentially utilize a similar argument to stop an animal operation. County zoning or state law will have limitations on an animal operation built close to a school, church, and possibly other land uses depending on the language used in the law or ordinance.

In Wicomico County, for example, the county code requires a minimum setback from neighboring residential dwellings, schools, places of religious assembly, nursing homes, daycare centers, manufactured home parks, or subdivisions with 10 or more houses. A religious youth camp may fall under these zoning requirements depending on the view of “place of religious assembly.”

We will have to wait and see if this type of challenge comes up in other states. For those curious, the Indiana Supreme Court recently denied an appeal in this case, so it appears the issue is settled for now in Indiana.


House of Prayer Ministries, Inc. v. Rush County Board of Zoning Appeals, 91 N.E.3d 1053 (Ind. Ct. App. 2018).

Wicomico County Zoning Regulations § 225-106 (2018).


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