Thompson v. Hancock County,Iowa, 539 N.W.2d 181, 1995 Iowa Sup. LEXIS 204 (filedOctober 25, 1995)
The Iowa Supreme Court affirmedthe district court’s conclusion that the hog confinementfacilities in this case were exempt from zoning restrictions. Theplaintiffs owned and leased a total of approximately 600 acresand had a 220-250 sow operation. The plaintiffs entered into acontract with Land O’Lakes to raise feeder pigs, and the proposedconstruction consisted of five hog confinement buildings. The countyboard of supervisors found that the facility did not qualify forconstruction under their current zoning ordinance and the boardrefused to recognize that the facility was exempt from countyzoning because of its "agricultural purpose".
The Iowa Supreme Court found that were counties not restricted from enacting zoning regulations affectinglivestock operations under the general zoning authority granted in theIowa Code. Additionally, the court stated that the Iowa Codeprovides an agricultural exemption, which states that "noordinance adopted under this chapter applies to land, farmhouses, farm barns, farm outbuildings or other buildings or structureswhich are primarily adapted, by reason of nature and area, foruse for agricultural purp oses, while so used." In previousdecisions, the court has held that the exemption "extends to facilitiesto be used in connection with agricultural functions." Decosterv. Franklin County (Iowa 1993) [holding livestock wastelagoons used in connection with hog finishing facilities held exemptfrom zoning]The court went into considerabledetail explaining how the proposed hog operation was just an expansionof what has been carried on by the la ndowners for a number of years and pointed out that the plaintiffs did have other livestock andraised crops. In narrowing its decision, the court stated,"we are convinced that the challenged hog confinement facilitiesare part of the evolving agricultural functions associated witha particular farming operation.
The Court additionally looked tothe Iowa Code 335.2, which states that "a person who operateda feedlot shall comply with applicable zoning or dinances."The Court said a person must comply with this section as a matterof law where no zoning requirement exists. The Court looked todefinition of feedlot and determined that the proposed hog confinementfacilities did not meet the requirements because the statutorydefinition only applies to open land areas and does not includeenclosed structures.
Scots Ventures, Inc. v. HayesTownship, 212 Mich.App. 530, 537 NW2d 610 (Court of Appeals ofMichigan, August 8 , 1995):
Plaintiff requested thatapproximately 726 acres of A-1, Agricultural Zone, land be rezonedRR-1, rural residential, which requires a five-acre minimum lotsize for each single-family residence. The Hayes Township Boardgranted the rezoning request, however a group of citizenspetitioned for a referendum, which subsequently overturned theBoard’s decision by a vote of 307 to 219. The property thenreverted back to its original A-1 classification, whi ch had a minimum lot size requirement of ten acres for each single-familyresidence. Plaintiff argued the agricultural zoning classificationwas unconstitutional because it did not reasonably relate to thehealth, safety, welfare of the public. The trial court held that theagricultural zoning classification was reasonably related to thetownship’s goal to preserve its rural character.
The Court of Appeals found thatgiven the facts of the present case, the ten acre minimum lot size requirement was not reasonably related to the preservationof rural character. The court stated:
Even assuming that plaintiff’s property is aptly considered farmland, the evidence suggests that the ten-acre minimum was arbitrary and capricious. While there was testimony that a five-acre minimum lot size requirement would not be sufficient to preserve farmland, t here was also testimony that the ten-acre minimum lot size requirement would likewise be insufficient. Given the deficiencies of both options, the imposition of the more burdensome ten-acre requirement is unreasonable .. Because a five-acre minimum is capable of achieving the township’s goal of preserving the rural character of the community, the imposition of a more burdensome ten-acre minimum is clearly arbitrary, capricious, and unreasonable.
In reversing the trialcourt’s decision, the court stated the township’s realinterest was in "preventing further development of an areathat is already used for recreational and residential, ratherthan agricultural, purposes. The real motivations behind the facadeof ‘public heath and welfare’ appear to be aesthetics,retention of ‘rural character’, and a desire to excludenew homeowners from the to wnship."
Charles Goss v. City of LittleRock, Arkansas (1996 U.S. App. LEXIS 18136):
Plaintiff, owner of a 3.7-acreparcel of property situated next to a two-lane state highway inrural Arkansas, filed this lawsuit against the City of LittleRock, arguing that the conditional approval of plaintiff’srequest for rezoning in exchange for dedication of part of hisproperty violated the Fourth and Fourteenth Ame ndments of the United States Constitution and Article Two of the Arkansas Constitution.Plaintiff attempted to have his property rezoned C-3 afterentering into a contract to sell the property, contingent on therezoning. The Little Rock Planning Commission agreed to therezoning request, however conditioned approval on Goss dedicating approximatelyeight-tenths of an acre (approximately 22% of the entireacreage).
The United States District Courtfor the Eastern Dist rict of Arkansas dismissed the suit forfailure to state a claim. In Goss’ appeal, the United StatesCourt of Appeals for the Eighth Circuit found that the dismissalwas inappropriate because the facts of the given case couldpossibly entitle relief. The Court stated that just as in Nollanv. California Coastal Commission, 425 U.S. 825, if themunicipality had only required the dedication rather thanrequiring dedication as a condition to the rezoning, it would havebeen considered a taking. In the pres ent case, if the Little Rock Planning Commission was using its police powers to "extractthe concession of a constitutional right", then there wouldbe a compensation issue regarding the property taken. In responseto the "nexus" and "rough proportionality"requirements laid out by the United States Supreme Court in Dolanvs. City of Tigard, 114 S.Ct. 2309 (1994), the Court stated,"The record suggests that Little Rock’s staff based its conditionon a concern that a d ifferent, heavy traffic-producing businesscould be erected on the property if rezoned. The scarcity of therecord, however, does not permit an inquiry by this court into theexistence of the required nexus or, if a nexus exists, whetherthe dedication bears some rough proportionality to the projected impactof the proposed rezoning." The District Court’s decisionwas reversed and remanded.
Farnsworth v. Zoning Board ofAppeals of the Town of North Branf ord (1996 Conn. Super LEXIS491):
Plaintiffs, owners of 80,150square feet in North Branford, kept two goats and a donkey ontheir property and were found to have violated two localregulations. One of the regulations stated that no livestock orpoultry could be kept on property smaller than 160,000 squarefeet. A second regulation provided an exception to the above in the eventa homeowner met the 100 foot setback requirement for allbuildings, had a 25-foot setba ck for all fencing, and had atleast 80,000 square feet for the first head of livestock and40,000 square feet of space for each additional animal. Theplaintiff argued the livestock prohibition was to vague to giveit any meaning. In the alternative, the plaintiff argued that donkeysand goats are not "livestock".
The Court found that even thoughthe ordinances do not define "livestock", the term shouldbe construed to mean those animals not livi ng in the samequarters as humans. The court found that the intent of themunicipality was to protect humans and animals from disease, andit did so by limiting the concentration of animals in smallparcels of land. The Court concluded that the term livestock did includeboth donkeys and goats and dismissed the appeal.
State of Hawaii v. MarcNobriga, 912 P.2d 567, 1996 Haw.App. LEXIS 14, 81 Haw. 70 (IntermediateCourt of Appeals of Hawaii, February 26, 1996)
Defendant, owner of land inPupukea, O’ahu, kept roosters on his property and was issueda citation under the animal nuisance ordinances after thecomplaint to the municipality by one of his neighbors. Approximately36 chickens were being raised on the 1.045 acre property at thetime of the complaint. The trial court found that the propertywas zoned "Country".
The Intermediate Court of Appealsfound that land zo ned "Country" is permitted to be usedfor the keeping of livestock and for commercial kennels, thus theCourt stated that defendant would not be in violation of theanimal nuisance ordinances so long as he was keeping his roostersas a "commercial enterprise or for food purposes". Defendant testifiedthat he did not keep the roosters "for commercial purposes"but did not testify as to whether he kept the roosters "forfood purposes". Because of the latter, the court did noth ave the required information necessary to determine whether thedefendant violated the animal nuisance ordinances. The Courtstated that if the defendant was keeping any of the roosters fornoncommercial purposes and defendant was not planning to consumethe roosters, then he would be in violation of the ordinance. The Courtremanded for further proceedings.
O’Cain v. O’Cain,1996 S.C.App. LEXIS 106 (Court of Appeals of South Carolina, July8, 1996) < /font>
Brothers Lever and HaroldO’Cain were left adjoining parcels of property by their father uponhis death. A public road built between the two parcels does notfollow the exact property boundaries, and Lever O’Cain’sproperty includes a small lot on the same side of the road as theHarold O’Cain tract. The present case involves Lever O’Cain’suse of the small parcel of property on the opposite side of the roadand in front of his brother’s h ouse to raise hogs. HaroldO’Cain brought a claim of nuisance against his brother. Testimonyin the case highlighted a long-standing family dispute betweenthe two O’Cain brothers, and several witnesses stated thatLever O’Cain had placed the hogs in front of Harold O’Cain’shouse out of malice. The Court stated,
Even though the general area of the property is rural, and the business of r aising hogs is a legitimate business and likely to occur in such an area, we find the location of the hogs on a small strip of land, between the plaintiff’s property and the road and directly in front of the plaintiff’s residence, is an unreasonable and unwarranted use of the defendant’s property and constitutes a private nuisance.
The Court held that the"Lever O’Cain family’s use of the small strip ofland in front of the Harold O’Cain family property to raisehogs constitutes a private nuisance and should be enjoined."
Duncanson, et. al v. Board ofSupervisors of Danville Township, 1996 Minn. App. LEXIS 798 (Courtof Appeals of Minnesota, July 9, 1996)
The Duncansons desired to build ahog feedlot on their property which could accommodate 4,800 hogs.On J uly 14, 1995, they discussed their plans with the DanvilleTownship Board of Supervisors and began discussing how theDuncansons would be able to compensate the township for damagesto township roads during the construction process. Danville didnot have any zoning ordinances at the time of this first meeting.At the next Board of Supervisors meeting on August 15, a one-year moratoriumprohibiting new construction of animal feedlots, hazardous waste facilities, miningand gravel pits, and tire recycling facilities was enacted at the requestof a number of citizens attending the meeting.
The Duncansons argued that themoratorium, the "Interim Zoning Ordinance", violated Minnesotalaws which first require a public notice and hearing. Danvilleargued that the moratorium was an interim ordinance and thus didnot fall under the provisions requiring notice and hearing. Thecourt agreed with the township and held that no notice is requiredwhen an interim zoning ordinance is passed.
The Duncansons also argued thatthe moratorium was arbitrary and capricious. Following an earlier case,the Court stated,
There is nothing in this record to justify a finding that the adoption of the moratorium constituted arbitrary, capricious, or unreasonable conduct. The evidence quite clearly indicates that members of the board were laymen with no particular expertise to cope with the complicated problems or urban planning and development. It was not wholly unreasonable for the board ultimately to resort to a moratorium which would permit them to utilize the expertise of growth and quality of a community for an indefinite period in the future. We find the reasons given for the moratorium demonstrate a good-faith need for orderly development and for the assistance of the coun ty planning office in preparing a comprehensive plan to meet the need in a sensible and workable manner.
Quoting Almquist v. Town ofMarshan, 308 Minn. 52, 54, 245 N.W.2d 819, 820 (1976). TheCourt stated that the Board of Supervisors in this case, as inthe Almquist case, acted in good-faith, and thus the moratoriumwas enacted lawfully.
Marshall v. Board of CountyCommissi oners for Johnson County, Wyoming, 912 F.Supp. 1456 (UnitedStates District Court for the District of Wyoming, January 22,1996)
Plaintiff brought suit against theBoard of County Commissioners and the individual commissionersfor alleged violations of his constitutional rights under 42U.S.C. Section 1983, including violations of procedural dueprocess and equal protection under the Fourteenth Amendment,denial of civil rights by state officials acting under colo r oflaw, and a violation of the "just compensation" clause.Plaintiff wished to develop approximately 111 acres of unimprovedland in Johnson County, Wyoming into 25 residential lots. Afterbeing denied permission to develop his land as planned, plaintiff allegedthat the commissioners bowed to pressure exerted by wealthy landownersin the area. The commissioners did give the landowner severaloptions, including increasing lot size, however plaintiff arguedthat these new restrictions destroyed the econo mic feasibility ofthe project.
Plaintiff’s inversecondemnation argument was not successful, as the Court stated that itcould find no authority which gives a property owner a vestedownership interest in a contemplated development. The court wenton to say on the issue of qualified immunity that plaintiff hadnot made a case to the satisfaction of the court, stating thatplaintiff’s assertions had been too general. The Courtstated:
The individual defendants in this case are government officials performing discretionary functions. The requirement that an applicant for subdivision approval meet certain requirements is rationally related to the State’s interest in promoting the public health, safety, morals and general welfare of its citizens by permitting the regulation of the use and development of land within the state of Wyoming…Indeed, the public interest may be better served by ensuring that Board and Planning commission members are able to fulfill their public service functions with independence and without fear of consequences, and that they are free to perform the duties required of them by law.
Johnson v. City of Hastings,241 Neb. 291; 488 N.W.2d 20; 1992 Neb. LEXIS 250 (Supreme Courto f Nebraska; Filed August 21, 1992)
The City of Hastings attempted to annex asaucepan-shaped tract of land lying east from the then- existingcity limits, and three separate actions were brought to stop theproposed annexation. The three actions were consolidated, and theCity of Hastings appealed from a lower court’s determinationthat the annexation was invalid. The court stated that inNebraska, the "power of a municipality to annex terriotryis, under the specific prov isions of Section 16-117, limited toannexing continguous or adjacent land if it is urban or suburbanin character and not agricultural land that is rural incharacter." Avoiding the issue of whether the land in questionwas agricultural or urban, the court based its decision on thefinding that the land was not "sufficiently adjacent"to the corporate city limits.
Rural Area Concerned Citizens, Inc. v.Fayette County Zoning and Hearing Board, 166 Pa.Commw. 520; 646 A.2d 717; 1994 Pa. Commw. LEXIS 459 (CommonwealthCourt of Pennsylvania; Decision Filed August 9, 1994; Petitionfor Allowance of Appeal Denied April 17, 1995)
Rural Area Concerned Citizens, Inc. (RACC)appealed a decision by the Fayette County Zoning and Hearing Board(FZHB) to grant a special exception to MSH Enterprises (MSH) tooperate a limestone quarry in an area zoned "A-I"(Agricultural-Rural). RACC appealed the decision of the FZHB tothe trial court, which affirmed the decision of the FZHB to grantthe special exception. RACC subsequently appealed the decision tothe Commonwealth Court, arguing that alternate memberappointments on the FZHB were accomplished by illegal means andthat the granting of the special exception to MSH should beoverturned because of traffic, water and noise concerns.
The Fayette County Zoning Ordinance set forthfour specific requirements to be met before granting a special exceptionin Residential , Agricultural-Rural, or Conservation Districts.RACC argued that the special exception granted to MSH did notmeet three of these requirements in that the roadways around thequarrying operations would be unduly burdened, water could bedepleted, and blasting would cause a great dael of noise in the surroundingareas. The Commonwealth Court found that MSH had met its burdenin showing that roads in the area would support increasedtraffic. Downplaying the quarry’s possible effects ontraffic, the court stated that the proposed use’s "...effect on traffic has been held to be insufficient to justify therefusal of an otherwise valid land use since an increase in theamount of traffic is expected whenever a new land use ordevelopment is to be implemented."
The court also found that RACC had not met itsburden in proving that granting the special exception will"by a high degree of probability, substantially affect thehealth and safety of the community". Although RA CC presentedthe concerns of nearly twenty residents from the surroundingarea, the court stated that "speculation...has specificallybeen found not to rise to the level of a high probability thatthe proposed use will have a substantial effect on the health andwelfare of the community as is required by the law."
Kawaoka v. City of Arroyo Grande,796 F. Supp. 1320; 1992 U.S. Dist. LEXIS 18828 (U.S. DistrictCourt, Central District of California; Decisi on Entered May 7,1992)
Basing its decision in part upon the ripenessdoctrine, the court granted a summary judgment to defendant. Thecourt stated that "in the Ninth Circuit, a challenge to aland-use regulation is unripe until the property-owner submits atleast one meaningful application for development." Indiscussing the ripeness finality doctrine, the court explainedthat even though there exists a "futility exception" tothis finality rule, "the futili ty exception does not alteran owner’s obligation to file one meaningful developmentproposal".
The court also held that the city’sone-year delay in adopting its development code was notunreasonable. The court pointed out that the Ninth Circuit hadfound that "a one-and-a-half year development moratorium inorder to develop a comprehensive scheme for regulating open spaceseems neither unreasonable, nor, standing alone, sufficientlyburdensome to require compe nsation". The court also pointedout that the California Code specifically authorizes moratoriumson conflicting uses of up to two years.
Carney v. Warren County Board ofCommissioners, 1991 Ohio App. LEXIS 4062 (Court ofAppeals of Ohio, Twelfth Appellate District, Warren County)
An owner of property zoned Rural Residential("R-I"--single family residential) argued that a boardof commissioner’s decision to not rezone the parcel to R-III(multi-family residential) was unconstitutional. The court statedthat "in order for Carney to prove that the zoning ordinancewas unconstitutional, he must demonstrate, beyond fair debate,that either the zoning regulation denied him an economicallyfeasible utilization of his 38.9 acre parcel of land, or that theregulation did not advance a legitimate interest for the area surroundinghis property." The court went on to say that the risk ofspeculation is on the purchaser an d that the property owner inthis case knew of the restrictive zoning ordinance when hepurchased the property for development. In concluding that thezoning regulation was not confiscatory, the court pointed outthat the property owner in this case had the "exact sameoptions for his property as when he first purchased it".
A second argument made by the property ownerwas that the R-I zoning classification was unconstitutional in thatit was not reasonably related to th e health, safety and welfareof the citizens of the county. The court stated that the zoningclassification, as well as the board’s decision to notrezone the property in question, "are exercises of thecounty’s police power to protect the residents of WarrenCounty from the ill effects of rapid growth".
Security Management Corp. v. BaltimoreCounty, 104 Md. App. 234, 655 A.2d 1326, 1995 Md. App.LEXIS 64 (Court of Special Appeals of Maryland; Decision filedMarch 31, 1995)
The court held that the plaintiff had notsufficiently pled a taking under either the Maryland or UnitedStates Constitution. Following recent United States Supreme Courtdecisions, the court emphasized that the standard in takingscases is whether the regulation "denies alleconomically beneficial or productive use of land" (emphasisadded). The court stated that inclusion of the property in thewatershed protection zone had not depri ved plaintiff of alleconoimc or productive uses of the land. The court concluded thatthe creation of the watershed protection zone in thecounty’s zoning ordinances does indeed "substantiallyadvance a legitimate state interest". Rejecting an equalprotection argument, the court concluded that
the very nature of the zoning process requires that parcels of land -- even neighboring land -- be considered indivi dually. Although neighboring parcels may share some characterisitics, each parcel is unique and may not share all of the relavant characteristics possessed by adjacent or nearby parcels. If we were to adopt appellant’s argument that its rights to equal protection have been violated simply because neighboring land has been zoned differently from its land, we would be doing away with the zoning process altogether.
Copyright 1996, All RightsReserved.