Summary of a Recent
Judicial Development in
Agriculture and Urbanization

County Board's Grant of Permit
for CAFO Affirmed

John D. Mead
National AgLaw Center Graduate Assistant

The Minnesota Supreme Court has held that a county board of commissioners' grant of a conditional use permit ("CUP") for a confined hog-feeding operation was not unreasonable or arbitrary, and that it was the responsibility of the county zoning department to enforce a half-mile setback provision set forth in the county ordinance at issue. Schwardt v. County of Watonwan, 656 N.W.2d 383, 385-88 (Minn. 2003).

Brent Kueker applied for a CUP from Watonwan County, Minnesota, to build a hog-feeding confinement operation that would house 3,120 hogs. See id. at 385. Kueker was required to obtain a CUP pursuant to Watonwan County Zoning Ordinance § 6, subdivision C-12 ("ordinance") for such an operation. See id. His application was considered by the county's seven-member planning and zoning commission ("planning commission"), and the public was afforded an opportunity to submit oral and written testimony regarding the proposed hog-feeding operation. See id.

Sharon and Bernhardt Schwardt resided on a farm located one-half mile from the proposed operation. See id. They objected to the granting of the proposed CUP based on concerns about, among other things, health, odors, and water pollution. See id. The Schwardts presented letters from their doctors that stated that their two adult children suffered health problems related to hog exposure. See id. They also presented a letter written by a Watonwan Soil and Water employee who concluded that odors would increase due to the hog operation. See id. In addition, the Schwardts presented newspaper articles that discussed how hog farms could negatively affect the health of people in the surrounding area. See id.

The planning commission addressed all the issues raised by the Schwardts, and Kueker assured the commission that he would meet the half-mile setback requirement before any buildings would be constructed. See id. The half-mile setback provision required that a feedlot be placed a distance of at least a half-mile from a neighboring residence. See id. The planning commission also added the four following conditions to address the Schwardts' other concerns:

1. Trees had to be planted in strategic locations;
2. certain additives had to be mixed into the manure pits;
3. the roads had to be treated for dust; and
4. neighbors had to be notified twenty-four hours before any manure could be applied to the fields.

Id. However, even after requiring these additional conditions, the planning commission still denied Kueker's CUP application. See id.

The issue was then considered by the Watonwan Board of Commissioners ("Board") during four meetings over a two-month period. See id. The Board considered the same evidence that the planning commission heard, and it also reviewed a new letter from the environmental services director for Watonwan County. See id. The letter provided that the concerns about noise and pollution of ground and surface water were unfounded. See id. The Board also visited the proposed site, heard testimony from all interested parties, and deliberated at length on the proposal. See id. At the fourth meeting, the board approved the CUP application with the four previously-noted conditions. See id. The Board's written findings consisted of a checklist that was marked to indicate that all standards in the ordinance had been satisfied. See id.

The Schwardts appealed the Board's decision to the Minnesota Court of Appeals. See id. The court of appeals concluded that the Board did not act arbitrarily in granting the CUP to Kueker. See id. It also stated that the Board's finding of fact were adequate. See id. The court of appeals did, however, remand the matter for the Board to attach a half-mile setback requirement to the CUP. See id. at 388. The court of appeals' decision was then appealed by the Schwardts to the Minnesota Supreme Court. See id. at 384.

The Minnesota Supreme Court noted that counties have wide latitude in making decisions about special use permits as long as an applicant has satisfied the standards set forth in a county ordinance. See id. at 386-87. The Schwardts argued that the Board acted unreasonably when it granted the CUP because it was presented with evidence by the Schwardts that their health would be adversely affected if the operation were allowed to be constructed. See id. at 387.

The court held that although the ordinance did not expressly address health concerns, it did contain broad language that ensured that the proposed use would not interfere with the Schwardts' enjoyment of their property or create a nuisance. See id. The court stated, however, that the evidence presented by the Schwardts, particularly the letters from their doctors, did not address the question of whether the proposed feedlot would aggravate their symptoms. See id.

The court noted that the letters were considered by the Board and that the letters did not persuade the Board to deny the permit application. See id. at 388. The court also noted that the Board accepted all proffered testimony and evidence, and that it had the ability to discount evidence that it determined lacked relevance or credibility. See id. The court stated that the record was clear that the Board was not convinced that the Schwardts would suffer adverse health effects from the proposed hog operation. See id. Therefore, the court concluded that the Board did not act unreasonably when it granted the CUP to Kueker. See id.

The Schwardts also asserted that the Board acted arbitrarily when it granted the CUP because the Board was responsible for ensuring that Kueker met the half-mile setback requirement contained in the ordinance. See id. The court agreed that the ordinance did require that a feedlot must be set at least a half-mile back from a neighboring residence. See id. It determined, however, that it was the responsibility of the county zoning administrator, not the Board, to enforce that requirement. See id. The court noted that the county's environmental services director reassured the Board that the setback would be satisfied before Kueker could build the feedlot. See id. Because it determined that it was not the Board's duty to ensure that the setback requirement was satisfied, it reversed the court of appeals' decision to remand the matter back to the Board with respect to that issue. See id. at 388-89.

The Schwardts also argued that the Board's granting of the CUP was arbitrary because it did not make explicit findings as to why the proposal was approved. See id. The court rejected this argument because the Board indicated on a checklist that the Kueker permit application, with the four additional conditions, met the standards in the ordinance. See id. The court was also satisfied that the checklist was a sufficient expression of the Board's conclusion that the conditions had been met. See id.

In summary, the court upheld the Board's determination because the record indicated that the Board had given serious consideration to the Schwardts' allegations and because there was sufficient evidence supporting the Board's decision. See id. The court also determined that the Board properly reserved the setback question for the zoning department. See id. Therefore, the court reversed the court of appeals' remand to the Board and affirmed the court of appeals with respect to all other issues. See id.

The case was decided on February 13, 2003; this summary was posted April, 2003