Feeding Operation with 2,400 Hogs a Permitted Use

By Eric Christianson

Hoffman v. Van Wyk

South Dakota Supreme Court, August 9, 2017

In Douglas County, South Dakota, Nicholas and Donnelle Hoffman learned that their neighbor, Douglas Leubke, received a permit to build a hog confinement unit from the Douglas County Zoning Administrator. The unit is designed to house up to 2,400 hogs. The permit was made public at a County Commission meeting on September 10, 2015 without any prior public hearings. When the Hoffmans approached the administrator about the issuance of the permit, the administrator explained that the building would house less than 1,000 animal units and therefore did not constitute an animal feeding operation as defined by the ordinance. Under the ordinance, 2,400 hogs is equal to 960 animal units. For that reason, the building is a permitted use not requiring a public hearing.

On March 14, 2016, the Hoffmans applied to the circuit Court for a writ of mandamus to compel the administrator and commission to revoke the permit and put a halt to construction. On June 3, 2016 the Court held a trial and held that the facility was neither a “farm,” “ranch,” nor “orchard” and therefore did not fall under any of the permitted uses of the land. Despite this fact, the Court stated that a writ of mandamus could not be used to undo an act that had already been completed. Both the Hoffmans and the zoning administrator appealed.

The Supreme Court of South Dakota found the circuit Court had erred in holding that the facility was neither a “farm,” “ranch,” nor “orchard.” The ordinance defines farms, ranches and orchards as:

An area of twenty five (25) acres or more which is used for growing usual farm products, vegetables, fruits, trees, and grain, and for the raising thereon of the usual farm poultry and farm animals such as horses, cattle, hogs, and sheep, and including the necessary accessories used for raising, treating, and storing animal products raised on the premises; but excluding an Animal Feeding Operation.

The Hoffmans allege that Leubke does not use the additional land around the facility for growing grain or farm products in addition to feeding hogs; however Leubke does own the full 160-acre quarter section and grows crops on that land.

The Hoffmans also argue that the manure slurry storage pit under the confinement unit violates setbacks established for animal waste facilities. According to the code, such a facility, “shall be no closer than two (2) miles from… the Corsica Lake Recreation Area, and one half (1/2) mile from any… residential dwelling” The facility is less than two miles from the Corsica Lake Recreation Area and less than a half mile from the Hoffman’s residence. The Court interpreted this ordinance to apply only to Animal Feeding Operations not the permitted farm use in this case.

Finally the Hoffmans argued that the hand drawn plan submitted by Leubke to the administrator was insufficiently detailed to allow the administrator to issue the permit. The drawing was not detailed nor drawn to scale. The Court does appear to agree that the administrator had no discretion to approve a permit without all the required information, but finds that this is “ultimately beside the point.”

The Court finds that, “it is clear that the facility was a permitted use under the ordinance as part of a farm or ranch.”

Prestage Farms CAFO in Poweshiek County not protected from nuisance suit by Iowa Code

by Gary Taylor

Patricia McIlrath v. Prestage Farms of Iowa, LLC
Iowa Court of Appeals, November 23, 2016

The McIlraths purchased their farm in rural Poweshiek County in 1971.  Their son and his family also live on the farm, in a house about 300 feet from the original farmhouse where Patricia and her husband live.  In 2012 Prestage Farms built an animal confinement facility (CAFO) for 2,496 hogs about 2,200 feet from the McIlrath’s home.  In July 2013, the McIlraths brought suit against Prestage, claiming the odor from the CAFO constituted a nuisance.  Prestage requested summary judgment prior to trial, claiming immunity from the suit based on Iowa Code 657.11(2) (Iowa’s right-to-farm legislation), but the Poweshiek District Court granted summary judgment in favor of the McIlraths on this point, finding section 657.11 to be unconstitutional based on the Iowa Supreme Court’s ruling in Gacke v. Pork Xtra.  The Court found, even if the statute was not unconstitutional based on the facts of the case, the statute would not provide immunity to Prestage Farms if (1) the CAFO unreasonably and for substantial periods of time interfered with the person’s comfortable use and enjoyment of the person’s life and property, and (2) the CAFO failed to use existing prudent generally accepted management practices reasonable for the operation.  The jury returned a verdict affirmatively determining that both points were met by the evidence.  It awarded damages of $100,000 for loss of past enjoyment, $300,000 for loss of future enjoyment, and $125,000 for diminution of property value.  Prestage appealed.

The Court of Appeals first examined Prestage’s claim that Iowa Code 657.11 in fact confers immunity from nuisance claims in the present case.  The court focused on the following passage from Gacke:

Property owners like the Gackes bear the brunt of the undesirable impact of this statute without any corresponding benefit.  Moreover, their right to use and enjoy their property is significantly impaired by a business operated as a nuisance, yet they have no remedy.  Unlike a property owner who comes to a nuisance, these landowners lived on and invested in their property long before Pork Xtra constructed its confinement facilities.  Under these circumstances, the police power is not used for its traditional purpose of insuring that individual citizens use their property “with due regard to the personal and property rights and privileges of others.”  [citation omitted].  Instead, one property owner—the producer—is given the right to use his property without due regard for the personal and property rights of his neighbor.  We conclude that section 657.11(2) as applied to the Gackes is unduly oppressive and, therefore, not a reasonable exercise of the state’s police power.  Accordingly, the statutory immunity violates article I, section 1 of the Iowa Constitution and may not be relied upon as a defense in this case.  We express no opinion as to whether the statute might be constitutionally applied under other circumstances.

The Court of Appeals concluded that in all relevant aspects, the factual situation in the present case was substantially similar to that presented in Gacke, making 657.11 unconstitutional in the present case.  There was no evidence McIlraths received any benefit from the statute, and they lived on and made improvements to their property long before the CAFO was built.

Prestage claimed several irregularities in the trial proceedings warranted a new trial; however, the Court of Appeals rejected all Prestage’s claims. Similarly, the court rejected all claims of Prestage that the evidence submitted at trial was insufficient to support the jury’s conclusion of liability and award of damages.

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

 

News from Nebraska: Livestock siting bill, significantly amended, moves forward

The Nebraska Legislature’s attempt to create uniformity in the livestock permitting process, first discussed here, is advancing as a result of compromise language.  Under the bill, a panel of experts appointed by the State Department of Agriculture would develop a matrix that county officials could use to determine whether to approve a livestock operation. LB106 passed its first reading on a 32-3 vote to advance, however, by removing language that made state livestock siting regulations mandatory for elected county officials. It would be up to individual county boards to decide whether to use the state standards.

Most of the senators who opposed the original bill said it substantially reduced local control over where to allow major livestock facilities. Livestock industry groups that support the bill say uniform standards on setbacks, odor control and other requirements would make the state more attractive to livestock producers.

An article from the Omaha World-Herald is here.

News from around Nebraska: Bill in NE legislature considers scoring system for siting livestock operations

The Nebraska legislature is considering instituting a scoring system that would give county officials a way to factor in considerations like odor and manure control, as well as economic impact, when making decisions on siting livestock operations.  The ultimate decision-making authority would still remain with the county.  “Allow them to go step by step and document the fact they’re using science to deny or grant a permit. I’m very favorable of it. I’m all about improving the situation for agriculture and especially in livestock in Nebraska,” said Senator Watermeier, who introduce the bill, LB106.

An article from NTV is here.

The text of LB106 is here.

Horse rescue project considered “commercial production” under (MI) Right to Farm Act; case remanded to consider GAAMPs

by Rachel Greifenkamp

Township of Webber v Bruce Austin
(Michigan Court of Appeals, April 22, 2014)

In 2011 Bruce Austin began a horse rescue project in the Township of Webber, Michigan on commercially zoned property that he had purchased for this purpose. The Township filed a complaint against Austin, alleging that the project violated the regulations of the commercial zoning district.  The Township was granted a preliminary injunction forcing Austin to temporarily cease his horse rescue project. At trial, Austin utilized the Michigan Right to Farm Act (RTFA) as an affirmative defense, stating that even though he had not yet made a profit from the project, he intended to in the future. The trial court deemed the animal rescue operation to be a valid nonconforming use of the property and was not a nuisance, and that therefore the use of the property was protected by the Michigan RTFA.  Following the trial court’s judgment, Austin filed for costs and attorney fees as well as costs for the transport, care, and feeding of the horses during the trial. Austin was granted attorney fees and costs but was denied animal care costs. The Township appealed both the judgment and the attorney fee award to the Michigan Court of Appeals.

The Court of Appeals addressed three issues critical to the outcome (1) characterization of the horse rescue project as a nonconforming use, (2) the application of generally accepted agricultural management practices (GAAMPs) under the RTFA, and (3) the horse rescue project as “commercial production” under the RTFA.

Nonconforming use.  A nonconforming use is “a vested right in the use of particular property that does not conform to zoning restrictions, but is protected because the use lawful existed before the zoning regulation’s effective date.”…When a property is transferred to a new owner, the nonconforming use may continue but cannot be expanded…To be a valid continuation of a nonconforming use, the new owner’s use must be “substantially of the same size and the same essential nature as the use existing at the time of passage of a valid zoning ordinance.” The court concluded that because the commercial zoning designation was in effect prior to Austin beginning his project, and the project was significantly different than the previous use of the property (no livestock was raised or sold), the horse rescue project was not a nonconforming use.

GAAMPs.  The township argued that the precedent set in the recently decided case of  Lima Township v. Bateson requires that a person asserting the RTFA as a defense has the burden of proving that the activity at issue is a protected operation, and that it complies with the generally accepted agricultural management practices (GAAMPs). Because the trial court’s refusal to consider the GAAMPs is directly contrary to the Bateson holding, the court determined that remand for further proceedings was necessary.

Commercial production. Finally, the township contended that the trial court’s determination that Austin’s horse rescue project was a commercial production protected by the RTFA was incorrect. The RTFA only protects activities associated with the commercial production of farm products.  While the RTFA itself does not define “commercial production,” previous cases have stated that commercial production means “the act of producing or manufacturing an item intended to be marketed and sold at a profit….There is no minimum level of sales that must be reached before the RTFA is applicable.  The trial court concluded that Austin successfully proved that he intended to operate the horse rescue project as a commercial production, and that absent clear error, the Court of Appeals could not overturn that assessment. This portion of the judgment was held by the Court of Appeals.

The judgment was reversed by the Court of Appeals and the case was remanded for rehearing the trial court level.

News from around Nebraska: Local zoning as a challenge to livestock expansion

In this article from Nebraska TV a dairy farmer from central Nebraska talks about the challenges of expanding livestock operations in Nebraska. The primary challenge cited in the article?  Local zoning.  A number of UNL agricultural economists weigh in on the “uncertainty” presented by local zoning.  The lack of local zoning control in Iowa is mentioned.

The article is titled “Steakonomics – Advantages and Disadvantages of Livestock Expansion in Nebraska.”

Comment: Rural Subdivisions and the Agricultural Exemption to Iowa County Zoning after Lang v. Linn County

by Gary Taylor

This article originally appeared in the Legal Briefs section of the May “The Iowa County” magazine.

Iowa Code 335.2 states that county zoning cannot be enforced against “land, farm houses, farm barns, farm outbuildings or other buildings or structures which are primarily adapted, by reason of nature and area, for use for agricultural purposes, while so used.” This agricultural exemption has been the subject of court cases throughout the years focusing on what constitutes a “use for agricultural purposes.”  Despite the lessons provided by these cases, county officials still wrestle with many unanswered questions about the interpretation of section 335.2. One of the most vexing issues has been rural acreages and large-lot rural subdivisions.  Is the owner of a five-acre residence who has a job in the nearby city qualified for the exemption if he raises an acre or two of crops or a few head of livestock?

On March 29 the Iowa Supreme Court decided Lang v. Linn County Board of Adjustment, in which the Court reviewed two separate decisions by the county to deny exemptions for two separate parcels: a 6.52-acre parcel that included the Langs’ residence, and a 43.3-acre parcel with 2 houses.  While the case does not definitively answer the exemption question for every rural acreage, it does provide several helpful guidelines for county officials going forward.

The Court began by pointing out the differences between the language of section 335.2 as it appears today, and as it was prior to amendments made in 1963.  The differences were critical to the Court’s reasoning.  Prior to 1963 the statute was concerned with land, farm houses and buildings “which are adapted, by reason of nature and area, for use for agricultural purposes as a primary means of livelihood, while so used.” Thus, prior to 1963 the statute did not contain the word “primarily,” (“primarily adapted”) but did tie the exemption to use for agricultural purposes “as a primary means of livelihood” for the landowner.

In the Court’s view, the addition of the word “primarily” allows county zoning authorities to consider “the relative size, value, and construction date of the house compared to the scope, value, and duration of the claimed agricultural activities,” and deny the exemption when the agricultural activities “are basically a sideline designed to obtain an agricultural zoning exemption for the owners’ residence.”  For the Langs’ residence on 6.52-acres, the Court determined that it was a “a residential tail wagging a farmland dog and that the property as a whole was not primarily dedicated to agriculture.” Although the Langs claimed in their exemption filing to be producing trees, raspberries, blackberries, asparagus, apples, grapes, and tomatoes, they provided no records of production or sales. Photographs indicated that the asparagus, grape vines and raspberry bushes, at least, were wild and in a wooded thicket. The Court did not believe that “the legislature intended to allow a homeowner to avoid county zoning requirements simply by having a tomato patch in his or her backyard.”

The Langs also claimed that the county improperly applied a minimum acreage test and flunked the Langs’ 6.52-acre parcel simply because it was too small.  Previous cases have held that a county cannot use parcel size as the sole measure for determining whether a parcel is primarily adapted for agriculture; however, in Lang the Court affirmed that parcel size can be one of the factors considered when making the determination, stating that “if size were not relevant, then nothing could prevent a developer from obtaining a zoning exemption for an entire development subdivided into half-acre lots so long as some agricultural product were planted in the development and tended by the homeowners.”

Because the Linn County Zoning Ordinance prohibits more than one dwelling on a single undivided parcel of land, the Langs sought an exemption for a second house built on a 43.3-acre tract, claiming that the occupant (the Langs’ son) would be performing farming tasks on the property.  The county did not dispute that the 43.3 acres should be considered agricultural, but disagreed that the second house was “primarily adapted” for agriculture since the son had a regular day job, and that he would be spending only 2 1/2-hours per day at most on farming activities.  The Court sided with the county, stating that “it is appropriate for the county to ask how much time the tenants of the house spend on farming activities. Otherwise, a farmer could erect multiple homes and avoid county zoning simply by assigning nominal farm tasks to an occupant of each home.” Implicit in the Court’s reasoning is that although a landowner no longer must show that the property is his “primary means of livelihood,” the landowner must be able to closely tie the activities of the person occupying the house to the agricultural production taking place on the property.

The Court concluded with a common-sense observation of how misapplying the exemption to rural acreages has the potential to cause problems in the future: “When a house has been erected by taking advantage of an agricultural exemption, but then is later sold to a person who is not engaged in agriculture, the house becomes a nonconforming use, which limits the new owner’s ability to modify or, if necessary, to rebuild the house.”

Linn County’s denial of ag exemption upheld by Iowa Supreme Court. Subtitle: “A residential tail wagging a farmland dog”

by Gary Taylor

Lang v. Linn County Board of Adjustment
(Iowa Supreme Court, March 29, 2013)

The Court of Appeals case from which this appeal originated is here.  The Supreme Court provided an extensive set of facts that gives readers a more complete picture of the situation.  Space does not permit a complete review here, other than to say that the facts illustrate Lang’s creative attempts to gain an ag exemption for several parcels with houses he developed subsequent to his subdivision of his original 49-acre tract.  The reader is strongly urged to review the Supreme Court opinion for a detailed factual background.

Supreme Court’s legal analysis.  The Supreme Court began by pointing out the differences between the statutory language of the ag exemption as it was originally adopted, and as it appears today.

Iowa Code 335.2 Prior to 1963:

No regulation or ordinance adopted under the provisions of this act shall be construed to apply to land, farm houses, farm barns, farm outbuildings or other buildings, structures, or erections which are adapted, by reason of nature and area, for use for agricultural purposes as a primary means of livelihood, while so used.

Today (after 1963):

Except to the extent required to implement section 335.27, no ordinance adopted under this chapter applies to land, farm houses, farm barns, farm outbuildings or other buildings or structures which are primarily adapted, by reason of nature and area, for use for agricultural purposes, while so used.

The amendment put the focus of the exemption on whether the “land, farm houses, farm barns, farm outbuildings or other buildings or structures” are “primarily adapted” for the asserted agricultural purpose, when considering the “nature and area.”  It turned the focus away from the use of the property as a “primary means of livelihood” for the landowner.  Thus the amount of income generated for the landowner by agricultural activities, as a percentage of the landowner’s total income, is no longer the focus.

However, the legislature at the same time added the requirement that the property be “primarily” adapted to agricultural use. In our view, this authorizes the county to deny the farmhouse exemption when the record, as here, indicates that the agricultural activities are basically a sideline designed to obtain an agricultural zoning exemption for the owners’ residence. The Board was entitled to look at the relative size, value, and construction date of the house compared to the scope, value, and duration of the claimed agricultural activities. For example, we do not believe the legislature intended to allow a homeowner to avoid county zoning requirements simply by having a tomato patch in his or her backyard….[We believe]  that the “primarily adapted” test allows county zoning authorities to consider the overall importance and underlying purpose of the agricultural activities in question.

“In our view, the Zoning Board of Adjustment (ZBA) could reasonably conclude that the Langs’ large, manorial residence on the 6.52 acres was a residential tail wagging a farmland dog and that the property as a whole was not primarily dedicated to agriculture. Although the Langs had recently planted small trees, they could not be expected to mature for many years and could be viewed as having an aesthetic purpose. Photographs indicated that the other claimed farming activities were not substantial in scope, even relative to the size of the parcel. The Langs presented no evidence of actual production, beyond the bare claims they made in their application for an agricultural exemption.”  The Lang’s claimed that the county improperly applied a minimum acreage test and flunked the Langs’ primary residence on a 6.52-acre parcel simply because it was not big enough; however the Supreme Court disagreed, noting that the “zoning administrator’s report, the recording of the 2004 ZBA hearing, and the ZBA’s 2-2 decision all indicate that the county did not summarily reject the application based on parcel size.  This is not to say that the size of the parcel should not be a consideration.  “If size were not relevant, then nothing could prevent a developer from obtaining a zoning exemption for an entire development subdivided into half-acre lots so long as some agricultural product were planted in the development and tended by the homeowners.”

Because the Linn County Zoning Ordinance prohibits more than one dwelling on a single undivided parcel of land, the Langs sought an agricultural exemption for a second house built on a 43.3-acre tract of land.  The second house was occupied by Langs’ son.  The Court observed that “regardless of the status of the land, Iowa Code 335.2 anticipates that a county may consider whether a specific building or structure [on the land] is primarily adapted for use for agricultural purposes.”   The Court found that substantial evidence existed to support the ZBA’s finding that the second house under the son’s tenancy would not be “primarily adapted” for agricultural purposes.  Referencing an Ohio Court of Appeals case, the Court stated that “When landowners build an additional house on their land, rent it out, and then want to claim it as another exempt farmhouse, it is appropriate for the county to ask how much time the tenants of the house spend on farming activities. Otherwise, a farmer could erect multiple homes and avoid county zoning simply by assigning nominal farm tasks to an occupant of each home.”

The Court concluded by observing that “the Langs’ construction of various homes on what began as one property had the potential to cause problems for third parties down the road. When a house has been erected by taking advantage of an agricultural exemption, but then is later sold to a person who is not engaged in agriculture, as occurred in this case with respect to [one of the houses on a subdivided parcel], the house becomes a nonconforming use, which limits the new owner’s ability to modify or, if necessary, to rebuild the house.

Michigan Right-to-Farm Act does not protect horses kept for personal use

by Kaitlin Heinen

Peggy Sue Brown v. Summerfield Township
(Michigan Court of Appeals,  August 23, 2012)

Peggy Sure Brown claimed that the Right to Farm Act (MCL 286.471) “preempts a township ordinance that prohibits her from keeping her horses on property less than one and a half acres.” The trial court, disagreed, finding that Brown was not engaged in a commercial farming operation.  She appealed.

The Right to Farm Act “states that a farm or farm operation must not be found to be a public or private nuisance if it conforms to ‘generally accepted agricultural and management practices’ (GAAMPs), according to policy determined by the state commission on agriculture. Local government may not enact or enforce an ordinance that conflicts with the Right to Farm Act or the GAAMPs.” (MCL 286.474(6)) So “any township ordinance, including a zoning ordinance, is unenforceable to the extent that it would prohibit conduct protected by the [Right to Farm Act],” which includes ordinances requiring minimum lot sizes.

The Right to Farm Act “preempts ordinances only to the extent that they impose restrictions on commercial farming operations,” which means that the Act does not apply to property owners who are not engaged in commercial operations for profit. A farm operation is defined “as activity conducted ‘in connection with the commercial production, harvesting, and storage of farm products.'” Brown referenced the subsection (MCL 286.472(b)) that mentions “the care of farm animals.” However, this subsection is listed in connection with possible farm activities conducted in a commercial operation. It is not an exception to the commercial requirement.

Brown offered no evidence that she kept her horses for profit (breeding, boarding, horse rides for fee, etc.). The Michigan Court of Appeals did not have to address  whether the farm operation provision creates a cause of action or provides a defense because the Right to Farm Act does not apply to Brown. The court  also did not have to address whether the farm operation provision applies to a new farming operation in property zoned as residential. The trial court rightly found it unnecessary to address the issues.

The Michigan Court of Appeals also held that the trial court rightly granted summary disposition on Brown’s substantive due process claim because the ordinance was not unreasonable.  The Court of Appeals affirmed the trial court on Brown’s equal protection claim as well, since she offered no evidence that she had been treated differently than any other person. The trial court’s decision was thus affirmed.

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