SF 447 limits nuisance damages against animal feeding operations

Senate File 447, signed into law on March 29th by Governor Branstad, limits the damages that can be awarded to property owners impacted by agricultural operations. This legislation is likely in response to the 2016 Iowa Supreme Court decision in McIlraith v. Prestage Farms, which held that animal feeding operations are not necessarily protected from nuisance suits based on Iowa Code 657.11(2) (Iowa’s right-to-farm legislation). In that case, the jury awarded damages of more than $500,000 for loss of past enjoyment, diminution in property value, and loss future enjoyment of the McIlraiths’ property.

Under SF 447, any nuisances caused by animal operations, which includes both confined and open feed lots, are presumed to be permanent nuisances. This means that plaintiffs cannot file future suits for continued nuisance.

Plaintiffs’ damages in nuisance suits are also limited to combined the total of:

  1. Permanent loss in property value
  2. Medical costs directly caused by the nuisance
  3. Special damages (annoyance and loss of enjoyment) not to exceed one and a half times the total of 1 plus 2

For more information about SF 447 and its passage see this article from the Des Moines Register.

 

 

Zoning Board of Adjustment properly carried out its role in approving application for CAFO

by Andrea Vaage

Grant County Concerned Citizens & Tyler v Grant County
South Dakota Supreme Court, June 24, 2015

Teton LLC applied for a conditional use permit to construct a confined animal feeding operation (CAFO) to house 6,616 swine larger than 55 pounds (“finisher” swine according to the Zoning Ordinances of Grant County (ZOGC)) and 1,200 swine smaller than 55 pounds (“nursery” swine in the ZOGC). The proposed operation would classify as a Class A CAFO-the largest possible designation under the ZOGC.  The Grant County Board of Adjustment (BOA) approved the permit after a hearing attended by 200 individuals. Grant County Concerned Citizens (GCCC) appealed.  Several procedural events are not included here, but the case eventually made its way to the South Dakota Supreme Court.  The Court’s conclusions on GCCC’s claims follow.

After the circuit court made a decision affirming the Board’s decision, GCCC submitted an affidavit signed by Tyler explaining the purpose of the excavation was to obtain water for his horse herd. The Board and Teton moved to strike the affidavit from record, upon which the circuit court granted the motion.

Private well. Under the ZOGC, a CAFO cannot be constructed within 2,640 feet of a private well. The ZOCG does not provide a definition of a “well,” however, SDCL 46-1-6(18) defines “well” as “an artificial excavation or opening in the ground, made by means of digging, boring, drilling, jetting, or by any other artificial method, for the purpose of obtaining groundwater.” GCCC claimed that the BOA’s decision improperly allows a CAFO within 2,640 feet of a well on neighbor Tyler’s property; however, the evidence showed that the well was actually dug on or just before the day of Teton’s application and that the excavation produced 12 gallons of water that day. The Board determined the Tyler’s constructed the well in order to frustrate the Teton’s application and as such the excavation did not meet the definition of “well.”  The Court affirmed, concluding that the BOA’s finding that the purpose of the excavation was to frustrate the CAFO application was material to the statute’s definition of “well” when the definition requires a well to be dug “for the purpose of obtaining groundwater.”  It was irrelevant that the excavation actually obtained 12 gallons of water.

Manure management and operation plan. Section 1034(4) of the ZOCG stipulates that the proposed CAFO must provide a manure management plan. GCCC contests that Teton’s did not find adequate acreage on which to spread manure, because Teton “significantly overstated” the amount of land on which it could apply manure.  The Court concluded that the Board made proper factual determinations on this issue, noting that ZOCG offers little in the way of specific requirements for a manure management and operation plan.

Failure to give notice to Melrose Township. The access road to the CAFO was jointly maintained by two townships. One of the two townships, Melrose Township, was not notified of the proposed CAFO by Teton.  Section 1304(12)(K) of the ZOCG requires “Notification of whomever maintains the access road (township, county and state).” An individual at the hearing for the permit testified that both townships had known about the proposed CAFO and decided not to upgrade the access road. It is irrelevant that the township was not notified by Teton, because the township had actual notice of the proceedings as evidenced by this individual’s testimony.

Nutrient management plan.  GCCC asserts that the proposed CAFO would not be able to obtain the water required to operate as evidenced by Teton’s nutrient management plan.  The Court considered this argument waived because the ZOGC’s requirements related to nutrient management plans do not address the water requirements of a CAFO.

GCCC made a number of other similar claims, but the Court found nothing in the record to suggest in these or any of the discussed claims that the Board did not regularly pursue its authority. The Supreme Court affirmed the ruling of the trial court.

Although house not yet built, landowner had standing to claim injury from CAFO approval

by Allison Arends

Hagerott v. Morton County Board of Commissioners
(North Dakota Supreme Court, February 22, 2010)

In 2008 Fred Berger applied to the Morton County Commission for a conditional use permit that would relocate an existing feed operation to a proposed site that was zoned for agricultural use.  The Morton County Feeding Operation ordinance requires a minimum separation of one mile between feedlots and residences.  Berger’s application indicated that there were no existing residences within one mile of his proposed feed lot; however, Donald Hagerott had also applied for a building permit in 2008 in order to build a house for his son, Mark Hagerott. The house would sit within one mile of the proposed feedlot. The Morton County Building Department issued him a building permit, noting that it was null and void if construction was delayed or suspended for a period of 180 days. Although the Hagerott’s placed a mobile home on the property they did, in fact, delay construction for over 180 days.  Hagerott maintained that the delay was a result of Berger’s pending application for the feedlot.

The commission approved Berger’s application for a 8,000 animal feeding operation and Hagerott appealed. The district court found that Hagerott did not have standing to challenge the commission’s approval.  Hagerott then appealed to the North Dakota Supreme Court.

The North Dakota Supreme Court first noted that for an individual to have standing, he must have some legal interest that may be enlarged or diminished by the decision to be appealed from, and such party must be injuriously affected by the decision. In regards to Hagerott’s standing the court found that, “the commission’s decision to grant a conditional use permit for a feedlot within the one mile odor setback of the proposed house has the effect of diminishing and injuriously affecting his personal and individual interest in his land in a manner different than that suffered by the public generally,” therefore making him factually aggrieved by the issuance of Berger’s conditional use permit and providing him with standing to appeal the commission’s decision.

In response to Hagerott’s second claim, the court first made clear that a county commission’s decision to issue a conditional use permit must be affirmed unless the commission acted arbitrarily, capriciously, or unreasonably, or if there is not substantial evidence supporting the decision. The court went on to find that the commission correctly concluded that the Hagerotts did not have an “existing residence”  within one mile of Berger’s proposed feedlot after extensive consideration of what constitutes an existing residence.  The court also found that there was no evidence that the Hagerott’s made substantial expenditures in reliance on the zoning ordinance and therefore had no protection against zoning changes prohibiting that use. The court found that the commission issued the conditional use permit through a “reasoned discussion and mental process for the purposes of achieving a reasoned and reasonable interpretation,” and therefore did not act arbitrarily, capriciously or unreasonably.  The North Dakota Supreme Court therefore affirmed the district court’s decision.

Archives

Categories