Legally, zoning setbackrequirements are constitutional unless they are discriminatory orif they go beyond the police power of the zoning authority. Asfirst stated by the United States Supreme Court and since statedby a number of lower courts, zoning must be substantially relatedto the public health, safety, morals and/or general welfare. Villageof Euclid v. Amber Realty, Inc., Rhein v. City of Frontenac(Mo.App.E.D., 1991), 809 S.W.2d 107, rehearing/transfer denied. Stateex rel Columbia Tower, Inc. v. Boone Co. (Mo.App.W.D., 1992),829 S.W.2d 534, rehearing/transfer denied, transfer denied. Courts,in deciding upon the constitutionality of a specific zoningprovision, must use a standard of reasonableness in examining thenexus between a particular ordinance and its relation to publichealth, safety, morals, and/or general welfare. White v. Cityof Brentwood, 799 S.W.2d 890 (Mo.App.E.D., 1990) rehearing,transfer denied. Courts also look to see whether the publicinterest outweighs the private detriment. State ex rel ColumbiaTower, Inc. v. Boone Co., supra.
To date, there have been noMissouri cases which have directly addressed the issue of whether agriculturalsetbacks for livestock production facilities are a valid use ofthe zoning entity’s police power. As long as the zoningentity can prove that there is a valid connection to theprotection of the health, safety, morals, or public welfare, itwill be very difficult for anyone to argue its invalidity. The questionof unreasonableness requires the court to use a balancing test,and reasonableness of the ordinance is weighed in favor of themunicipality or zoning entity. City of Bridgeton(Mo.App.E.D., 1992), 825 S.W.2d 684. Showing that a particularordinance is arbitrary and unreasonable is a "heavy burden"for a plaintiff to meet. Bannum, Inc. v. City of St. Charles,Mo. (Court of Appeals, 8th Circuit, Missouri,1993) 2 F.3d 267. Zoning ordinances are presumed to be valid, andthe burden of disproving the reasonableness of a particularordinance is on the landowner. Wells & Highway 21 Corp. v.Yates (Mo.App.E.D., 1995) 897 S.W.2d 56, rehearing,transfer denied, and transfer denied. St. Louis County v. Kienzle (Mo.App.E.D.,1992), 844 S.W.2d 118. State ex rel. Chiavola v. Village ofOakwood (Mo.App.W.D., 1994), 886 S.W.2d 74, rehearing, transferdenied, and transfer denied, certiorari denied Chiavola v.Village of Oakwood, Mo., 115 S.Ct.1724, 131 L.Ed.2d 582. Person(s)arguing against a particular zoning ordinance have the burden ofproving that it is arbitrary, capricious or unreasonable. In McDowellv. Layfayette County Commission, for example, the court ruledthat there was not enough evidence to prove that the county-widezoning in the particular case was done solely as way to prevent alandfill operation within the county. The plaintiffs in thisparticular case lost because they could not show that the zoningwas discriminatory, unreasonable or confiscatory. McDowell v. LayfayetteCounty Commission (Mo.App.W.D., 1990), 802 S.W.2d 162, rehearing/transfer denied,case retransferred, and Court of Appeals opinion readopted.
Even where zoning relates to thepublic welfare, however, a particular zoning ordinance could be unconstitutionallyunreasonably if the private detriment is greater than the publicwelfare gained from imposing the regulation. White v. City ofBrentwood. The question of whether zoning is used inappropriatelydepends upon the application of the zoning ordinance and thefacts in a specific case. Dallen v. City of Kansas City(Mo.App.E.D., 1991), 822 S.W.2d 429, transfer denied.Thus, there may be cases where a zoning ordinance is used todiscriminate among landowners or cause excessive hardship for aparticular owner.
If setbacks were included in theordinances based on health-related arguments, ordinance opponents maywell have a difficult job of disproving the ordinance’svalidity. Currently, there is not a strong body of health-relateddata concerning the effects of large-scale livestock productionfacilities on neighboring populations. Most studies do, however,at least suggest that there are some potential effects. Researchershave found that swine-related gases and odors may cause nausea,vomiting, headache, shallow breathing, coughing, sleepdisturbances, and depression.
Even though there may not beconclusive scientific evidence as to the effects of swine orother livestock order on human populations, a party arguingagainst the setbacks would probably have a difficult timedisproving the validity of the specific provision unless it couldbe shown that the ordinance was discriminatory or that the reasonfor enacting the setback provision was to "zone out"unwanted uses without a direct linkage to the health, safety,morals and/or general welfare of the surrounding population.
1 Overcash, M.R., et al. LivestockWastes Management: Volumes I & II, Boca Raton, Florida: CRC Press,Inc. (1984)
2 Stewart, Melvin, "AirQuality", Understanding the Impacts of Large-Scale SwineProduction: Proceedings from an Interdiscinplinary ScientificWorkshop, June 29-30, 1995, Des Moines, Iowa, explainingSchiffman, S., et al. "The Effects of Environmental OdorsEmanating from Commercial Swine Operations on the Mood of NearbyResidents," Brain Research Bulletin 37(4): 359-375.
3 "OccupationalHealth", Understanding theImpacts of Large-Scale Swine Production: Proceedings from anInterdiscinplinary Scientific Workshop, June 29-30, 1995,Des Moines, Iowa
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