Regulation and Agricultural Use

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Regulation and Agricultural Use

• Special Treatment for
• Agriculturally Related Uses

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Agricultural Our Number One Business
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City of Lilburn v Sanchez

• The City of Lilburn requires that a landowner
  have at least one acre to keep a potbellied pig
  as a household pet
• Sanchez has a pig and lives in the middle of a
  subdivision on a .24 acre lot
• The pigs name is Eugenie and the
• Family considers him to be a
• Family pet

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The Sanchezs Strike Back

• The Sanchezs claim that since this is a
  household pet the ordinance discriminates against
  them
• Dont have to have a dog on an acre
• Dont have to have a cat on an acre
• The trial court agrees and strikes down the 1
  acre requirement also says you dont have to
  have permission of the neighbors to have Eugenie
  live with them

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The Sanchezs
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Appeals Court

• Well, potbellied pigs are not a suspect class so
  the court is only going to use a rationally
  related test
• Therefore, the Sanchezs are going to have to
  produce some pretty good evidence
• This is not going to go well for them if you
  cant tell by now

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Evidence

• Expert veterinarian says that the smell coming
  from swine is much stronger than dogs or cats
• The things poop about 4 times more than any other
  animal around
• Neighbors say that they cant get within 20 feet
  of the house without gagging
• Eugenie is 60 pounds and will grow to about 100
  pounds
• Swine have transmittable diseases whereas most
  domesticated animals do not

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Decision

• Seems pretty clear to the court that the City has
  a rational basis for containing El Porko on lots
  of one acre or more
• The trial court clearly erred because they
  beloved the idiot that bred these pigs that as
  the size of the lot increases, so does the size
  of the pig and the amount of manure
• Goodbye Eugenie

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The Remains of the Potbellied Pig
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Blauvelt v Leavenworth County

• Blauvelts purchased 40 acres with the intent of
  starting a farming operation in Leavenworth
  County, Kansas
• Applied for a building permit but were denied for
  various reasons including improper setbacks
• The Blauvelts sued and lost at the trial court
  level since the court did not find that a farm
  house served an agricultural purpose

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Argument

• Kansas Law provides no determination nor rule nor
  regulation shall be held to apply to the use of
  land for agricultural purposes, nor for the
  erection or maintenance of buildings thereon for
  such purposes so long as such land and buildings
  erected thereon are used for agricultural
  purposes and not otherwise.
• The basic question then is does a farm house have
  an agricultural purpose?

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The Courts Reasoning

• The County says that a house in which a farmer
  resides is residential, does not serve an
  agricultural purpose and therefore is not
  exempted from county zoning regulations They
  argue that the use of a house is purely a
  residential purpose while other structures on a
  farm, such as barns, silos, pigpens, etc., are
  used for agricultural purposes.
• There are literally thousands, of family farms
  located throughout Kansas and we are sure it
  would come as quite a shock to most of these
  people to learn that their homes, many occupied
  for generations while the family tilled the soil,
  were not a part of their agriculture operations
  and were not used for agricultural purposes.

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(No Transcript)
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Fields v Anderson Cattle Company

• In 1959 the Fields purchase a 3 acre lot in a
  rural subdivision
• At that time the Anderson Cattle Company operated
  a small feedlot about ½ miles from the Fields
  there was little odor
• Anderson cattle purchased two other feed lots and
  expanded their own operation so that it was
  nearly adjacent to the Fields home
• The operation feed about 15,000 cattle and 6,000
  sheep on a daily basis

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The Case Itself

• There is no doubt that the Anderson Cattle
  company constituted a nuisance to the Fields but
  this is not the heart of the case
• The Lyons County zoning ordinance does not
  classify the Anderson operation as an
  agricultural use. Rather, the ordinance states
  that cattle feeding is an industrial use not
  subject to the agricultural exemption
• The Anderson Cattle Company contests this
  ordinance since it would have an impact of the
  damages stemming from their nuisance suit.

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Agricultural Use or Not?

• In its commonly accepted sense the term
  "agriculture" includes the breeding, rearing and
  feeding of livestock in preparation for market.
  The preparation of farm products for market is
  the dominating purpose of the agriculturalist.
• Whether the owner of livestock fattens his cattle
  for market in the blue stem pastures of the Flint
  Hills or in feed lots where they are given more
  condensed rations, the preparation for market
  continues as an agricultural pursuit.

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Conclusion

• The Court Says we must conclude that the feeding
  of livestock for market is an agricultural
  pursuit and that the structures used in
  connection therewith are for agricultural
  purposes.
• No such thing as a commercial cow
• No such thing as an industrial cow

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Anderson Cattle Company
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What Happens When You are Raised Near A Feedlot
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Same Thing Happens When You Are Raised Near Hog
Lots
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And Then There Was Carp

• Carp v Board of County Commissioners of Sedgwick
  County HOGS HOGS - HOGS

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Background

• Fred Carp owned an intensive hog operation near
  the 3 mile extraterritorial zoning district of
  Wichita
• When he purchased 160 in the extraterritorial
  zone the City of Wichita moved to enforce against
  the expanded operation
• The trial court held that the nature of his
  operation was commercial rather than agriculture
  because the animals were raised under controlled
  continues in self-contained buildings
• Carp did not breed the pigs rather they were
  shipped to him and feed in the buildings until
  they were ready for market

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Pit Stop Statistics

• Your typical porker in confined feeding hits the
  HEAD about 20 times per day ( 2 that is)
• Anywhere from 10 to 100 times more concentrated
  that human waste dependent upon feed
• 10,000 hogs organically produce waste BOD equal
  to a town of 45,000 persons

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The Supreme Court

• The court reviewed expert testimony on the nature
  and definition of agriculture
• One witness stated that agricultural actually
  referred to the raising on crops and that under
  this strict definition, animal husbandry is
  excluded
• However, the court concluded that the term
  agriculture is traditionally broad and that
  whether animals are raised in buildings on in the
  fields it still constitutes an agricultural use
  and is entitled to exemption

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Nuisance Exemption

• From 1950 onward the predominate growth from in
  the United States has been urban sprawl.
• As uses sprawl outward into the rural areas there
  is an inevitable conflict of lifestyles and land
  use
• In the 1960s and 1970s many nuisance suits were
  filed by new residents against production
  agricultural. Not all were limited to livestock
  more than a few targeted noise, dust, chemical
  applications, and the intensive activity that
  often runs 24/7 throughout the year

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Many State Passed Nuisance Exemption

• More than ¾ of the States now have statutes that
  protect production agriculture from nuisance
  suits. Most are based on the following criteria
• Bona Fide agricultural use
• First or superior in time
• Unchanged in scale of operation
• Continuous operation
• Best practices

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Bormann/McGuire v Kossuth Co.

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

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The Iowa Exclusion Law

• A farm or farm operation located in an
  agricultural area shall not be found to be a
  nuisance regardless of the established date of
  operation or expansion of the agricultural
  activities of the farm or farm operation.
• The exclusion does not extend to negligent
  operation, the pollution of land or water, or
  excessive soil erosion

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Background

• A group of farm owners, including the Girres
  applied for the AG. Lands Designation on 955
  acres
• Initially, they were rejected by the County
  Commission because there was no real pressure to
  convert farmland in this area, and nuisance
  immunity could impact the nearby residential
  owners
• Several months later they reapplied and the
  County grant the designation by a vote of 3-2
• The Bormanns and the McGuires filed suit

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Facts of the Suit

• The Bormanns/McGuires allege that the Ag
  Designation gives the agricultural owners to
  create and maintain a nuisance over their
  property
• In other words, create an easement in favor of
  the farmers. The creation of the easement, the
  neighbors conclude, results in an automatic or
  per se taking under a claim of regulatory taking.
• The defendants claim that no physical invasion
  occurred and that the AG Designation did not take
  all or nearly all of the economic value of their
  property

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The Iowa Court Ponders

• Property is not alone the corporeal thing, but
  consists also in certain rights created and
  sanctioned by law, of which, with respect to
  land, the principal ones are the rights of use
  and enjoyment
• The property interest at stake here is that of an
  easement, which is an interest in land. Over one
  hundred years ago, this court held that the right
  to maintain a nuisance is an easement. An
  easement is

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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
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Easement

• An easement is a privilege without profit, which
  the owner of one neighboring property has on
  another, by which the one owner is obliged to
  suffer, or not do something on his own land, for
  the advantage of the other owner
• If the legislature wishes to offer a nuisance
  exemption to agricultural lands then it must be
  recognized as a taking and is due compensation

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The Example
My Farm
Your Land
Big CAFO
Limit of Intense Odor
Your House