Land application of biosolids was “normal agricultural operation,” triggering right-to-farm protections

by Hannah Dankbar and Gary Taylor

Gilbert v. Synagro Central
Pennsylvania Supreme Court, December 21, 2015

Appellees are thirty-four individuals who own or reside on properties next to a 220-acre farm in York County, Pennsylvania. The farm contracts with two companies who recycle biosolids to be used as fertilizer.

Between March 2006 and April 2009 approximately 11,635 wet tons of biosolids were applied to the farm. Appellees claimed that when the biosolids were applied there were strong, unpleasant odors that impacted their daily lives and made some residents ill.

Appellees complained to local officials, the biosolid companies and state officials with no response. In 2008 they filed two three-count complaints, which were consolidated. One of the complaints was that the appellants’ biosolids activities created a private nuisance.

Appellants argued that § 954(a) of the Right to Farm Act (RTFA) barred the nuisance claim. The relevant part reads:

No nuisance action shall be brought against an agricultural operation which has lawfully been in operation for one year or more prior to the date of bringing such action, where the conditions or circumstances complained of as constituting the basis for the nuisance action have existed substantially unchanged since the established date of operation and are normal agricultural operations.

The trial court determined that land application of biosolids is a “normal agricultural operation” under the RTFA. They found that land application of biosolids was not a substantial change in the farm business, and that farms have used different types of fertilizer for centuries. Also, appellees failed to identify what duty appellants owed them, which is an essential part to their claim.

On appeal the Superior Court reversed and remanded the nuisance claim. The court identified three requirements of the RTFA that must be met for a nuisance action to be barred: (1) the agricultural operation has an established date of operation at least one year prior to the filing of the action; (2) the conditions or circumstances constituting the basis of the action have been substantially unchanged since the established date of operation; and (3) the conditions are a “normal agricultural operation.” The court found that the first two requirements were met, but the third was not because there was no factual finding that application of biosolids was a “normal agricultural operation.” Regarding the second requirement, the court determined that a substantial change can reset the clock on the one-year allotment to file a claim. However, application began in 2006 and the complaint was not filed until 2008.

On appeal, the Supreme Court agreed with the Superior Court’s decision on the first two requirements. It then further addressed the question of whether the trial court correctly concluded that land application of biosolids as fertilizer is a “normal agricultural operation.” In addressing this question the court made extensive inquiry into the history of the land application of biosolids as fertilizer, related statutes and regulations, case law and executive agencies’ views.  At the conclusion of this inquiry the Court found support to determine that the application of biosolids falls under “normal agricultural operations.” Because the RTFA is meant to protect farmers from nuisance claims, the definition of normal agricultural operations must reflect accepted changes in agricultural practices, including the increased use of biosolids.  The result was that  the farm was protected from the nuisance claim.

 

Town properly used its police powers to build roads and levy special assessments after developer failed obligations

First State Bank v Town of Omro
Wisconsin Court of Appeals, November 11, 2015

Barony subdivision is a 74 lot subdivision that received plat approval in 2004. Only 9 lots were developed over the course of the next 5 years, and in 2009 First State Bank took control of the remaining 65 lots in lieu of foreclosure. At the time of foreclosure, sections of the roads in the subdivision were not paved. In 2013 Omro authorized the roads to be finished and specially assessed all the lots within the subdivision for the cost of completing the roads, which was $219,641.60. The Bank challenged Omro’s authority to levy the special assessments.  The issue on appeal was whether a municipality may use its police powers to build roads and levy special assessments against the land after a developer fails their obligation to build the roads.

The Bank claimed that the assessment was improper because: (1)the development agreement required the developer to pay for the roads; (2) the Ordinance prohibited the road work because 70% of the subdivision was not developed; (3) at the time the special assessments were imposed the subdivision’s roads were privately owned; (4) three lots were not specially benefited because they do not abut Omro’s roads; and (5) the wording of the preliminary and final resolutions did not conform with § 66.0703. The circuit court provided summary judgment to Omro.

The first two arguments asked whether Omro acted outside of their authority granted by the legislature. The Bank argued that the Ordinance says that the money for paving roads “will come directly from the developer, from a special assessment on the development, or another method approved by the Town Board” and that “the development agreement will dictate the method of payment for the paving.” The Bank argues that the developer is the only recourse for payment based on this language in the Ordinance and in the developer agreement. However, the language in these documents does not limit Omro’s power to levy special assessments. Just because the agreed upon payment did not work out does not mean alternatives are not allowed as long as Omro follows the appropriate procedures in state law permitting special assessments.

The Bank argued that because 70% of the subdivision was not developed the special assessment could not be levied.  The court pointed out, however, that there is language in the Ordinance that allows for a different schedule if Town Engineer and the Town Board recommend a different action, which they did.

The last three arguments asked whether Omro failed to follow the requirements of Wis. Stat. §66.0703.  The Bank argued that because the lots were privately owned, the special assessment was not for public improvement.  This argument missed the point that the roads within the subdivision were public property.  State law provides that all roads or streets shown on a final plat are dedicated to the public unless clearly marked as private, which these were not.  Therefore, the assessments were clearly for a public improvement.

Next, the Bank argued that three of the lots do not receive “special benefits” from the project because they do not abut the newly paved roads and should not be specially assessed because of this. The Bank demonstrated a genuine issue of fact. The circuit court erred in granting summary judgment on this issue.

The court affirmed the decision ratifying the special assessment of the lots that benefit from the road project, but reverse the decision that found that the lots that do not abut the roads received special benefits and remanded that issue to the lower court.

Judge rules MN township must allow Islamic cemetery

A follow up to a story posted here in November: A Dakota County District Court Judge has ordered Castle Rock Township to issue a conditional use permit for an Islamic cemetery.

Agstar Financial Services submitted an application to the township in March 2014 for a proposed Islamic cemetery and funeral home on property it owned.  In June 2014, Castle Rock Township’s planning commission recommended the approval of the application without the plan to build a funeral home on the property; however, the Castle Rock Township board rejected the application in August 2014, expressing concerns of potential loss of a “lot of tax base” and that the property “would not be open to the public for burials.”

When Al Maghfirah Cemetery Association closed on the sale of the property with Agstar, it submitted its own conditional use permit to the township on Nov. 17, 2014, and agreed not to build a funeral home on the property, but three days later, the board of Castle Rock Township denied Al Maghfirah Cemetery Association’s application.

The Dakota County District Court Judge wrote that he wrote that Al Maghfirah Cemetery Association “is entitled to free use of its property, subject to reasonable zoning restrictions….That right was denied to them by the arbitrary decision of the Castle Rock Township Board of Supervisors, which was later framed as a concern over the loss of tax base.”

The full Minnesota Public Radio article is here

Intro to Planning and Zoning workshop brochure now available

You can now download a brochure describing the Intro to Planning and Zoning workshops by following this link and going to the top of the page.  For those in your city/county/office who may be interested in the workshops but are not readers of this blog (shame on them!) please print a copy and distribute.  Reminder of the dates and locations:

Monday, March 21 – Okoboji – Arrowwood Resort, 1405 Highway 71

Tuesday, March 22 – Clear Lake – Best Western Holiday Lodge, 2023 7th Ave North

Tuesday, April 5 – Decorah – Hotel Winneshiek, 104 East Water Street

Wednesday, April 6 – Cedar Rapids – Clarion Hotel & Convention Center, 525 33rd Ave. SW

Monday, April 11 – Sioux City – Bev’s on the River, 1110 Larsen Park Road

Tuesday, April 19 – Creston – Supertel Inn & Conference Center, 800 Laurel Street

No need to make specific finding that building qualified as accessory building when granting special exception

by Hannah Dankbar

Hasanoglu v Town of Mukwonago and Town of Mukwonago Plan Commission
Wisconsin Court of Appeals, October 14, 2015

The Hasanoglus appealed a circuit court decision upholding a decision of the Town of Mukwonago Plan Commission to grant a special exemption to the Hollerns to build an accessory building on their property. The Hasanoglus argue that the Plan Commission does not have jurisdiction to grant this exception and that the exception was arbitrary and unreasonable.

The Hollerns applied for a zoning permit to build a riding arena on their property in rural Mukwonago. Mukwonago determined that the arena would be in “substantial compliance” with the town ordinances, except for the height and square footage of the building. The Plan Commission met and approved the proposal by granting a exception to the zoning ordinance. Their neighbors, the Hasanoglus, filed a certiorari action which sustained the decision.

On appeal, the Hasanoglus argued that according to the Town of Mukwonago Municipal Code §82-25(a)(2)(b)(2) the Town Board could grant this exception, but the Plan Commission does not have jurisdiction to do so in this case. While it is true that this section of the code gives this power to the Town Board, a different part of the code gives the same power to the Plan Commission (Town of Mukwonago Municipal Code §82-25(b)(3)). The court determined that §82-25(b)(3) is the appropriate subsection because there was no finding of a rural accessory building on the Hollerns’ property as is required by §82-25(a)(2)(b)(2).

Next, the Hasanoglus argued that: (1) the Hollerns did not follow the correct procedure to apply for the special exception; (2) that the Plan Commission agenda was not specific enough to give notice of the Hollerns’ request; and (3) the Plan Commission did not conduct a sufficient inquiry into whether the proposed riding arena qualified as an accessory building.

First, the question of whether the Hollerns followed the correct procedure was not raised in circuit court and the section of the municipal code that the Hasanoglus cite is only for property owners seeking exceptions for setbacks. This argument was not considered on appeal.

Second, the Plan Commission’s agenda states, “ACCESSORY BUILDING HEIGHT AND SIZE INCREASE FOR S64W27645 RIVER ROAD, MICHAEL AND LAURA HOLLERN PROPERTY OWNER.” The minutes show approval of the request. The Plan Commission is not obligated to be any more specific than that.

Lastly, The Plan Commission is not required to record a specific discussion and determination in its minutes that a building qualifies as an accessory structure.  The Plan Commission placed multiple conditions on the approval of the exception (an example being that there can be no commercial use) which demonstrated that it considered the issue and exercised its judgment.

These arguments failed, so the decision was upheld.

Marquette, IA mayor and council member resign over zoning dispute

A man in Marquette has been living in a mobile home on his property while constructing a brand new house on the same property.  But it’s illegal, according to city ordinance, to have a mobile home on that property, because it isn’t properly zoned for it.  After refusing to issue a variance, the city was taken to court, where a magistrate judge ruled the city must issue the variance.

Although the Mayor received legal advice that the city would most likely win if they appealed the decision, Marquette’s City Council voted 3-1 to not pursue any more legal action.  That didn’t sit will with the Mayor, a City Council Member or a member of the city’s board of adjustment, all of whom resigned last week.

Full story here courtesy of KWWL.com

“Providing” fire services means creating and operating a fire district, not making a fire call

by Hannah Dankbar

Town of Hoard v Clark County
Wisconsin Court of Appeals, November 12, 2015

The Town of Hoard is located in Clark County. The County operates a medical center within the town. The issue in this case is whether an ordinance that imposes an annual charge on property owners to cover the cost of fire protection is legal (Town of Hoard Ordinance No. 091113). In 2014 Hoard charged Clark County $3,327.68 for fire protection of the medical center. The County did not pay the charge. Hoard sued the County for not paying and was granted summary judgment. The County appealed.

Under the 2013 ordinance Hoard uses a formula to determine the annual charge for fire protection. The charge is based on the property’s use and square footage to calculate the “domestic user equivalent” (DUE). The medical center was assigned 1.5 DUE units per 1,000 square feet. Hoard divides its annual contribution to the fire district that they share with other communities by the number of DUE units to determine a dollar amount per DUE unit. This dollar amount determines the charge for each property owner.

Hoard argued that Wis. Stat. §60.55(2)(b) allows them to set “a fee on property owners in the Town for the cost of fire protection, as set according to a written schedule that was adopted by the town board.” The pre-1988 version of the statute allowed a town to charge for the cost of “fire calls made to the property”, but the new statute broadened the ability of a town to charge for fire protection to all properties who are protected.

The County argued: (1) the charge to the County under the ordinance is a tax, not a fee, which the County is exempt from under state law, or alternatively (2) if the charge is a fee, the ordinance is not valid under state law because the statute only allows fees for fire protection services that are actually provided. Because the medical center did not receive any services (i.e., no fire calls) they should not have to pay the fee.

There is a distinct difference between a fee and a tax. A tax is to gather revenue for the government. A fee is to cover the expense of providing a service, regulation or supervision. In this case, the charge is to cover the expense of providing fire protection, so it is a fee.

Regarding the second argument, the Court determined that “providing” fire protection services includes joining with other municipalities to create and operate the fire district.  The court determined that the medical center was “provided” fire protection from the Town.

The judgment of the lower court was affirmed.

Three chickens do not constitute an agricultural use in a residential district

This post comes courtesy of Patricia Salkin and her Law of the Land blog.  I love chicken litigation…

 

Plaintiff, City of Sparta, a municipal corporation, brought an ordinance violation action against defendant, Tim Page, alleging that Page was conducting an unpermitted use in a residential district, contrary to the provisions of the local zoning ordinance. Defendant Page resides on a one and one-half acre tract of land within the city limits in an R–4 residential district as established by plaintiff’s zoning ordinance. He had been raising chickens for approximately four years on his property and considered his three chickens as pets, and did not use them for any commercial enterprise. The trial court found that raising pet chickens was not prohibited by the city code; because Page’s activities were not commercial in nature, they did not constitute agricultural use. Plaintiff appealed contending that the court’s decision was against the manifest weight of the evidence and contrary to law.

Here, the court found that the primary use of Page’s property was residential since Page and his wife lived in the house on the property as part of their normal everyday life. Moreover, normal incidental uses of residential homes and property include having pets. While other provisions of the zoning code specifically prohibited swine, cattle, horses, mules or game birds within residential neighborhoods, the court noted that a chicken was not a game bird. Because chickens were not specifically prohibited, and no commercial agricultural use pertaining to the chickens was established, Page’s owning of and keeping three pet chickens on his property was held to not constitute agricultural use as contemplated by the zoning code. Accordingly, the chickens were found to be an incidental permitted use of the property, and the holding of the trial court was affirmed.

City of Sparta v. Page
Illinois Court of Appeals, October 22, 2015

 

MI conditional land transfer agreement improperly included contract zoning provisions

by Gary Taylor and Hannah Dankbar

Teridee LLC and Koetje Trust v. Charter Township of Haring and Township of Clam Lake
Michigan Court of Appeals, December 8, 2015

Teridee LLC and the Koetje-Trusts own 140 acres of vacant land in Clam Lake Township. They intended to create a mixed-use development on the land. The land was zoned by Wexford County, but because the County could not provide public water and sewer systems the landowners petitioned for the land to be annexed by the City of Cadillac. Charter Township of Haring and Township of Clam Lake opposed this petition.

For the purpose of economic development projects, two local governments are permitted to transfer property for the purpose of economic development projects by written agreement through a Conditional Land Transfer Agreement (aka a 425 agreement (1984 PA 425, MCL 124.21 Act 425). In 2011 the Townships used a 425 agreement to conditionally transfer several properties to the City of Cadillac, which included all of the plaintiffs’ property. When a 425 agreement is in effect, annexation cannot occur (MCL124.29). The landowners brought an action before circuit court challenging the agreement, but it was dismissed because the State Boundary Commission (SBC) had jurisdiction. SBC determined that the 425 agreement was invalid because it was not executed for economic development purposes, but rather to block Cadillac’s annexation attempt.  For other reasons, the SBC also did not approve of the landowners’ annexation petition.

The Townships entered into a new Act 425 agreement and the landowners submitted a new annexation petition. The landowners also filed this action seeking relief on two counts. The landowners asked a trial court to (1) declare the Act 425 agreement invalid because it was not for economic development purposes; and (2) declare the Act 425 agreement void against public policy because it binds the current and future zoning boards of Haring Charter Township to rezone the transferred area to the rezoning requirements assigned in the agreement, which strips the body of legislative authority.

The first count was dismissed, because SBC had primary jurisdiction. The second count required, (1) the Townships to carry out the agreement in a way that did not divest the township of its legislative zoning authority, and (2) to answer whether the Townships could sever the allegedly invalid rezoning provisions of the agreement to make the balance of the agreement enforceable.

The court found that the agreement did strip Haring of their legislative authority and made the agreement void. The Townships appealed.

On appeal the court concluded that the plain language of the agreement strips Haring’s zoning authority over the undeveloped property by determining in the agreement how the property must be zoned. This is evident in the language of the concurring resolutions the Townships passed.

The Townships argued that Act 425 allows for contract zoning, and therefore the zoning requirements in the 425 agreement were authorized by statute.  This argument did not stand up in court. Act 425 permits a 425 agreement to contain language concerning “the adoption of ordinances and their enforcement by or with the assistance of the participating local units.”  This language is not sufficiently specific to permit an interpretation that would allow for contract zoning.

The lower court decision was affirmed.

Fine for zoning violation can only be imposed “upon conviction” in court

by Hannah Dankbar and Gary Taylor

Claybanks Township v Paul and Tana Feorene
Michigan Court of Appeals, December 8, 2015

Paul and Tana Feorene own 40 acres of land in Claybanks Township. They built a greenhouse, gazebo and hay barn on their property without obtaining zoning permits according to the Claybanks Township Zoning Ordinance (CTZO). The Township sued the Feorenes and requested that the trial court order them to remove the structures, but the Township was ordered to issue the zoning permits at the standard fee for the three structures.

The Township argued that the trial court did not follow CTZO and Michigan Zoning Enabling Act (MZEA). CTZO §§ 203 and 207 require a zoning permit to be obtained before construction begins and that any construction before a permit is obtained is a nuisance and must be abated. There is no question that the Feorenes violated CTZO by building the structures without permits; therefore the issue becomes the abatement of the nuisance.  The abatement could be accomplished either by razing the buildings or issuing the permits, and courts have broad discretion in granting relief appropriate to the circumstances. Once the Feorenes were notified that they needed zoning permits for the structures they attempted to get them; however, the Township conditioned granting the permits on the payment of a $3,100 fine it had already imposed on the Feorenes for violating CTZO. The Feorenes refused to pay the fine and built the buildings anyway.

CTZO §208 imposes a $100 fine “upon conviction” of violation of the CTZO, and each day the violation continues shall be deemed a separate offense.  Applying the rules of statutory interpretation, the court concluded that because the Township had not brought an action in court there could be no “conviction.”  As a result, the $3,100 fine was inappropriate.

The Feorenes claimed that Michigan Right to Farm Act (RTFA) also provided an alternative basis to affirm the trial court’s conclusion. RTFA was enacted to protect farmers from nuisance lawsuits.  To assert an RTFA the Feorenes had to prove: (1) the challenged activity constitutes a “farm” or “farm operation”; and (2) the farm or farm operation conforms to the relevant generally accepted agricultural and management practices (GAAMPs). The Feorenes did not cite any relevant GAAMPs; and so the court rejected the RTFA argument.

The trial court ruling was affirmed.