Regulation and Agricultural Use

Special Treatment forSpecial Treatment for

Agriculturally Related UsesAgriculturally Related Uses

Agricultural – Our Number One Business

City of Lilburn v Sanchez

The City of Lilburn requires that a landowner The City of Lilburn requires that a landowner have at least one acre to keep a “potbellied” have at least one acre to keep a “potbellied” pig as a household petpig as a household pet

Sanchez has a pig and lives in the middle of a Sanchez has a pig and lives in the middle of a subdivision on a .24 acre lotsubdivision on a .24 acre lot

The pig’s name is Eugenie and theThe pig’s name is Eugenie and the

Family considers him to be a Family considers him to be a

Family petFamily pet

The Sanchez’s Strike Back

The Sanchez’s claim that since this is a The Sanchez’s claim that since this is a household pet the ordinance discriminates household pet the ordinance discriminates against themagainst them

Don’t have to have a dog on an acreDon’t have to have a dog on an acre Don’t have to have a cat on an acreDon’t have to have a cat on an acre The trial court agrees and strikes down the 1 The trial court agrees and strikes down the 1

acre requirement; also says you don’t have to acre requirement; also says you don’t have to have permission of the neighbors to have have permission of the neighbors to have Eugenie live with themEugenie live with them

The Sanchez’s

Appeals Court

Well, potbellied pigs are not a suspect class Well, potbellied pigs are not a suspect class so the court is only going to use a rationally so the court is only going to use a rationally related testrelated test

Therefore, the Sanchez’s are going to have to Therefore, the Sanchez’s are going to have to produce some pretty good evidenceproduce some pretty good evidence

This is not going to go well for them if you This is not going to go well for them if you can’t tell by nowcan’t tell by now

Evidence

Expert veterinarian says that the smell coming from Expert veterinarian says that the smell coming from swine is much stronger than dogs or catsswine is much stronger than dogs or cats

The things poop about 4 times more than any other The things poop about 4 times more than any other animal aroundanimal around

Neighbors say that they can’t get within 20 feet of the Neighbors say that they can’t get within 20 feet of the house without gagging house without gagging

Eugenie is 60 pounds and will grow to about 100 Eugenie is 60 pounds and will grow to about 100 poundspounds

Swine have transmittable diseases whereas most Swine have transmittable diseases whereas most domesticated animals do notdomesticated animals do not

Decision

Seems pretty clear to the court that the City Seems pretty clear to the court that the City has a rational basis for containing El Porko on has a rational basis for containing El Porko on lots of one acre or morelots of one acre or more

The trial court clearly erred because they The trial court clearly erred because they beloved the idiot that bred these pigs that as beloved the idiot that bred these pigs that as the size of the lot increases, so does the size the size of the lot increases, so does the size of the pig and the amount of manureof the pig and the amount of manure

Goodbye EugenieGoodbye Eugenie

The Remains of the Potbellied Pig

Blauvelt v Leavenworth County

Blauvelt’s purchased 40 acres with the intent Blauvelt’s purchased 40 acres with the intent of starting a farming operation in Leavenworth of starting a farming operation in Leavenworth County, KansasCounty, Kansas

Applied for a building permit but were denied Applied for a building permit but were denied for various reasons – including improper for various reasons – including improper setbackssetbacks

The Blauvelt’s sued and lost at the trial court The Blauvelt’s sued and lost at the trial court level since the court did not find that a “farm level since the court did not find that a “farm house” served an agricultural purposehouse” served an agricultural purpose

Argument

Kansas Law provides Kansas Law provides no determination nor no determination nor rule nor regulation shall be held to apply to rule nor regulation shall be held to apply to the use of land for agricultural purposes, nor the use of land for agricultural purposes, nor for the erection or maintenance of buildings for the erection or maintenance of buildings thereon for such purposes so long as such thereon for such purposes so long as such land and buildings erected thereon are used land and buildings erected thereon are used for agricultural purposes and not otherwisefor agricultural purposes and not otherwise .“.“

The basic question then is does a farm house The basic question then is does a farm house have an agricultural purpose?have an agricultural purpose?

The Court’s Reasoning

The County says that a house in which a farmer resides The County says that a house in which a farmer resides is residential, does not serve an agricultural purpose and is residential, does not serve an agricultural purpose and therefore is not exempted from county zoning therefore is not exempted from county zoning regulations They argue that the use of a house is purely regulations They argue that the use of a house is purely a residential purpose while other structures on a farm, a residential purpose while other structures on a farm, such as barns, silos, pigpens, etc., are used for such as barns, silos, pigpens, etc., are used for agricultural purposes.agricultural purposes.

There are literally thousands, of family farms located There are literally thousands, of family farms located throughout Kansas and we are sure it would come as throughout Kansas and we are sure it would come as quite a shock to most of these people to learn that their quite a shock to most of these people to learn that their homes, many occupied for generations while the family homes, many occupied for generations while the family tilled the soil, were not a part of their agriculture tilled the soil, were not a part of their agriculture operations and were not used for agricultural purposes.operations and were not used for agricultural purposes.

Fields v Anderson Cattle Company In 1959 the Field’s purchase a 3 acre lot in a rural In 1959 the Field’s purchase a 3 acre lot in a rural

subdivisionsubdivision At that time the Anderson Cattle Company operated At that time the Anderson Cattle Company operated

a small feedlot about ½ miles from the Fields – there a small feedlot about ½ miles from the Fields – there was little odorwas little odor

Anderson cattle purchased two other feed lots and Anderson cattle purchased two other feed lots and expanded their own operation so that it was nearly expanded their own operation so that it was nearly adjacent to the Field’s homeadjacent to the Field’s home

The operation feed about 15,000 cattle and 6,000 The operation feed about 15,000 cattle and 6,000 sheep on a daily basissheep on a daily basis

The Case Itself

There is no doubt that the Anderson Cattle company There is no doubt that the Anderson Cattle company constituted a nuisance to the Fields but this is not the constituted a nuisance to the Fields but this is not the heart of the caseheart of the case

The Lyons County zoning ordinance does not classify The Lyons County zoning ordinance does not classify the Anderson operation as an “agricultural use.” the Anderson operation as an “agricultural use.” Rather, the ordinance states that cattle feeding is an Rather, the ordinance states that cattle feeding is an industrial use not subject to the agricultural industrial use not subject to the agricultural exemptionexemption

The Anderson Cattle Company contests this The Anderson Cattle Company contests this ordinance since it would have an impact of the ordinance since it would have an impact of the damages stemming from their nuisance suit.damages stemming from their nuisance suit.

Agricultural Use or Not?

In its commonly accepted sense the term In its commonly accepted sense the term "agriculture" includes the breeding, rearing and "agriculture" includes the breeding, rearing and feeding of livestock in preparation for market. The feeding of livestock in preparation for market. The preparation of farm products for market is the preparation of farm products for market is the dominating purpose of the agriculturalistdominating purpose of the agriculturalist..

Whether the owner of livestock fattens his cattle for Whether the owner of livestock fattens his cattle for market in the blue stem pastures of the Flint Hills or market in the blue stem pastures of the Flint Hills or in feed lots where they are given more condensed in feed lots where they are given more condensed rations, the preparation for market continues as an rations, the preparation for market continues as an agricultural pursuit.agricultural pursuit.

Conclusion

The Court Says we must conclude that the The Court Says we must conclude that the feeding of livestock for market is an feeding of livestock for market is an agricultural pursuit and that the structures agricultural pursuit and that the structures used in connection therewith are for used in connection therewith are for agricultural purposes.agricultural purposes.

No such thing as a commercial cowNo such thing as a commercial cow No such thing as an industrial cowNo such thing as an industrial cow

Anderson Cattle Company

What Happens When You are Raised Near A Feedlot

Same Thing Happens When You Are Raised Near Hog Lots

And Then There Was Carp

Carp v Board of County Commissioners of Carp v Board of County Commissioners of Sedgwick County – HOGS – HOGS - HOGSSedgwick County – HOGS – HOGS - HOGS

Background

Fred Carp owned an intensive hog operation near the Fred Carp owned an intensive hog operation near the 3 mile extraterritorial zoning district of Wichita3 mile extraterritorial zoning district of Wichita

When he purchased 160 in the extraterritorial zone When he purchased 160 in the extraterritorial zone the City of Wichita moved to enforce against the the City of Wichita moved to enforce against the expanded operationexpanded operation

The trial court held that the nature of his operation The trial court held that the nature of his operation was commercial rather than agriculture because the was commercial rather than agriculture because the animals were raised under controlled continues in animals were raised under controlled continues in self-contained buildingsself-contained buildings

Carp did not breed the pigs – rather they were Carp did not breed the pigs – rather they were shipped to him and feed in the buildings until they shipped to him and feed in the buildings until they were ready for marketwere ready for market

Pit Stop Statistics

Your typical porker in confined feeding hits Your typical porker in confined feeding hits the HEAD about 20 times per day (# 2 – that the HEAD about 20 times per day (# 2 – that is)is)

Anywhere from 10 to 100 times more Anywhere from 10 to 100 times more concentrated that human waste – dependent concentrated that human waste – dependent upon feedupon feed

10,000 hogs organically produce waste BOD 10,000 hogs organically produce waste BOD equal to a town of 45,000 personsequal to a town of 45,000 persons

The Supreme Court

The court reviewed expert testimony on the nature The court reviewed expert testimony on the nature and definition of agricultureand definition of agriculture

One witness stated that agricultural actually referred One witness stated that agricultural actually referred to the raising on crops and that under this strict to the raising on crops and that under this strict definition, animal husbandry is excludeddefinition, animal husbandry is excluded

However, the court concluded that the term However, the court concluded that the term agriculture is traditionally broad and that whether agriculture is traditionally broad and that whether animals are raised in buildings on in the fields – it still animals are raised in buildings on in the fields – it still constitutes an agricultural use and is entitled to constitutes an agricultural use and is entitled to exemptionexemption

Nuisance Exemption

From 1950 onward the predominate growth from in From 1950 onward the predominate growth from in the United States has been urban sprawl.the United States has been urban sprawl.

As uses sprawl outward into the rural areas there is As uses sprawl outward into the rural areas there is an inevitable conflict of lifestyles and land usean inevitable conflict of lifestyles and land use

In the 1960s and 1970s many “nuisance” suits were In the 1960s and 1970s many “nuisance” suits were filed by new residents against production agricultural. filed by new residents against production agricultural. Not all were limited to livestock – more than a few Not all were limited to livestock – more than a few targeted noise, dust, chemical applications, and the targeted noise, dust, chemical applications, and the intensive activity that often runs 24/7 throughout the intensive activity that often runs 24/7 throughout the yearyear

Many State Passed Nuisance Exemption More than ¾ of the States now have statutes that More than ¾ of the States now have statutes that

protect production agriculture from nuisance suits. protect production agriculture from nuisance suits. Most are based on the following criteria:Most are based on the following criteria: Bona Fide agricultural useBona Fide agricultural use First or superior in timeFirst or superior in time Unchanged in scale of operationUnchanged in scale of operation Continuous operationContinuous operation Best practicesBest practices

Bormann/McGuire v Kossuth Co.

Iowa permits bona-fide owners of agricultural Iowa permits bona-fide owners of agricultural lands to apply to the a board of county lands to apply to the a board of county commission for an "Agricultural Lands commission for an "Agricultural Lands Designation" under the Iowa Agricultural Designation" under the Iowa Agricultural Protection Act. This designation grants certain Protection Act. This designation grants certain protection and benefits to owners of protection and benefits to owners of agricultural lands. The most important of these agricultural lands. The most important of these is that generally, operators are exempt from is that generally, operators are exempt from "nuisance suits" by neighbors owing non-"nuisance suits" by neighbors owing non-agricultural property.agricultural property.

The Iowa Exclusion Law

““A farm or farm operation located in an A farm or farm operation located in an agricultural area shall not be found to agricultural area shall not be found to be a nuisance regardless of the be a nuisance regardless of the established date of operation or established date of operation or expansion of the agricultural activities expansion of the agricultural activities of the farm or farm operation.”of the farm or farm operation.”

The exclusion does not extend to The exclusion does not extend to negligent operation, the pollution of negligent operation, the pollution of land or water, or excessive soil erosion land or water, or excessive soil erosion

Background

A group of farm owners, including the Girres’ applied A group of farm owners, including the Girres’ applied for the AG. Lands Designation on 955 acresfor the AG. Lands Designation on 955 acres

Initially, they were rejected by the County Initially, they were rejected by the County Commission because there was no real pressure to Commission because there was no real pressure to convert farmland in this area, and nuisance immunity convert farmland in this area, and nuisance immunity could impact the nearby residential ownerscould impact the nearby residential owners

Several months later they reapplied and the County Several months later they reapplied and the County grant the designation by a vote of 3-2grant the designation by a vote of 3-2

The Bormanns and the McGuires filed suitThe Bormanns and the McGuires filed suit

Facts of the Suit

The Bormanns/McGuires allege that the Ag The Bormanns/McGuires allege that the Ag Designation gives the agricultural owners to create Designation gives the agricultural owners to create and maintain a nuisance over their propertyand maintain a nuisance over their property

In other words, cIn other words, create an easement in favor of reate an easement in favor of the farmers. The creation of the easement, the the farmers. The creation of the easement, the neighbors conclude, results in an automatic or neighbors conclude, results in an automatic or per se taking under a claim of regulatory per se taking under a claim of regulatory taking.taking.

The defendants claim that no physical invasion The defendants claim that no physical invasion occurred and that the AG Designation did not occurred and that the AG Designation did not take all or nearly all of the economic value of take all or nearly all of the economic value of their propertytheir property

The Iowa Court Ponders

Property is not alone the corporeal thing, but Property is not alone the corporeal thing, but consists also in certain rights created and consists also in certain rights created and sanctioned by law, of which, with respect to sanctioned by law, of which, with respect to land, the principal ones are the rights of use land, the principal ones are the rights of use and enjoymentand enjoyment

The property interest at stake here is that of The property interest at stake here is that of an easement, which is an interest in land. Over an easement, which is an interest in land. Over one hundred years ago, this court held that one hundred years ago, this court held that the right to maintain a nuisance is an the right to maintain a nuisance is an easement. An easement is: easement. An easement is:

What Does An Easement Mean?

My lot Your lot

This is a 30’ right-of-access easement over my property I granted to you with I sold you the lot. It is still my property, but it is yours to use for the purpose of access

This is a 12’ strip of land I granted to the public so that a water and power line could be connected to your lot that I sold you. It is my land, but the public utility may use it for the purpose of providing services

Easement

An easement is a privilege without profit, An easement is a privilege without profit, which the owner of one neighboring property which the owner of one neighboring property [has] on another, by which the one owner is [has] on another, by which the one owner is obliged to suffer, or not do something on his obliged to suffer, or not do something on his own land, for the advantage of the other own land, for the advantage of the other owner owner

If the legislature wishes to offer a nuisance If the legislature wishes to offer a nuisance exemption to agricultural lands then it must exemption to agricultural lands then it must be recognized as a taking and is due be recognized as a taking and is due compensationcompensation

The Example

My FarmYour Land

Your House

Big CAFO

Limit of Intense Odor