August 27, 2013

Ind. judge recuses himself from lawsuit

Camp suing county board over rezoning for confined feeding project.

By The Associated Press

---- — DELPHI — Carroll Circuit Judge Benjamin Diener will not preside over a lawsuit filed in his court by YMCA Camp Tecumseh against the White County Board of Commissioners.

Diener filed a disqualification order last week, citing Indiana Trial Rule 79 in taking himself off the case.

The judge’s father, David Diener, is one of the three commissioners who voted for farmer John Erickson’s request to rezone 7 acres from general agriculture to agricultural industry.

Also, the judge’s wife, Abigail Diener, has served as legal council for the White County Area Plan Commission, which recommended the commissioners approve the rezoning.

In essence, Trial Rule 79 states a judge shall disqualify himself or herself whenever the judge or a close relation is a party to the legal proceeding in his or her court. Under the rule, the parties involved must choose an eligible special judge to preside over the case.

The rezoning approval cleared the path for Erickson to build a confined animal feeding operation capable of holding 9,240 pigs on land just north of White County Road 1000 South and just west of Springboro Road.

The site is roughly a half mile from the 600-acre camp, which has provided outdoor education and religious programming for youths and adults for 90 years.

The lawsuit contends the operation will interfere with Camp Tecumseh’s mission of providing outdoor education, recreation and worship areas for more than 35,000 youth and adults who visit the facility.

The camp is asking a judge to negate the vote and send the rezoning petition back with instructions to reject the petition, according to court documents.

The lawsuit also seeks a court order suspending the rezoning until a judge can determine whether the decision was illegal.

The camp states it is able to post a bond and will pay all court costs if the rezoning is found to be valid.