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Nebraska CA: actual usage, not physical capacity controls scope of legal nonconforming use

March 23rd, 2010

by Allison Arends and Gary Taylor

Thieman v. Cedar Valley Feeding Company Inc.
(Nebraska Court of Appeals, February 23, 2010)

Boone County, Nebraska adopted a zoning ordinance in 1999 that classifies livestock feeding operations in terms of the number of animal units in the operation, and contains setback requirements.  Cedar Valley Feeding Company operated a livestock operation in Boone County on the date the zoning ordinance was adopted.  The ordinance differentiated between livestock feeding operations of 5,000 or fewer animal units and those with more, in how they regulated various aspects of the operations.  On a questionnaire distributed by the Boone County zoning administrator in 2000, Cedar Valley indicated they had 5,000 cattle on the property at the time the ordinance was adopted.  In 2008 Cedar Valley applied for a conditional use permit for the sole purpose of constructing waste facilities to “maintain the present animal capacity of such operations that existed on September 13, 1999, the date of enactment of the Boone County Zoning regulations.”  The owners of Cedar Valley put forth that the actual capacity of the facilities on that date was 7,500 cattle, and that the facilities were not being used to full capacity at the time they had 5,000 cattle.  Ted Thieman, a nearby landowner in Boone County, filed a complaint against Cedar Valley Feeding Company requesting that the company be enjoined from feeding 7,500 head of cattle.  Cedar Valley argued that because their feeding operation’s physical capacity was greater than 5,000 animal units prior the regulation’s enactment, the operation was grandfathered at 7,500 cattle.

The Nebraska Court of Appeals framed the issue as “whether the scope of a nonconforming use is dictated by the physical capacity of the premises or the actual number of cattle confined.”  The court observed that the “Rules and Definitions” section of the Boone County ordinance defined the term “enlargement” as “the expansion of a building, structure or use in volume, size, area, height, length, width, depth, capacity, ground coverage, or in number.” (emphasis added).  The court concluded that when read in the context of zoning regulations that specifically limit the permissible number of animals that may be kept on the premises of a particular livestock feeding operation, this provision prevents the addition of livestock beyond the number on the premises when the zoning regulations went into effect.  In other words, under the specific language of the regulations, actual usage controls.

In addition to Cedar Valley’s responses to the zoning administrator’s questionnaire, data from the Nebraska Department of Environmental Quality inspection indicated that Cedar Valley had 5,000 total animal units on its property on May 19, 1999.  Three additional documents provided evidence indicating Cedar Valley had  5,000 cattle on their property.  The court found persuasive the numerous documents providing evidence that Cedar Valley consistently operated their feeding company with 5,000 cattle more persuasive. Therefore, the court found that Cedar Valley’s legal nonconforming use of the property was limited to the confinement of 5,000 cattle.

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