Summary of a Recent
Judicial Development in
Animal Feeding Operations

Court Dismisses CAFO Operator's Due Process Claims
Against State's Adoption of Zoning Ordinance

Eric Foy
National AgLaw Center Research Associate

The case was decided on August 5, 2002.

Summary of Decision

In Furnas County Farms v. Hayes County, No. 8:00CV548, 2002 WL 1796511 (D. Neb. Aug. 5, 2002), the Federal Court for the District of Nebraska granted Defendants' motion to dismiss Plaintiff's substantive and procedural due process claims with respect to the adoption of zoning regulations that prevented it from constructing and operating a swine CAFO.

Background

Plaintiff Furnas County Farms was prevented from constructing a hog confinement facility due to Hayes County's zoning regulations. Id. at *1. Following the dismissal of Plaintiff's first amended 42 U.S.C.S. § 1983 complaint, plaintiff filed this second amended complaint alleging a deprivation of procedural and substantive due process rights with respect to defendants' adoption of zoning regulations that prevented it from constructing and operating a swine CAFO. Id.

Arguments

Plaintiff challenged the zoning restriction on both substantive and procedural due process grounds. Id. Plaintiff's substantive due process challenge alleged that defendants' zoning regulations were not rationally related to any legitimate governmental purpose and were arbitrary and capricious. Id. Objecting to the zoning as a violation of substantive due process as applied, Plaintiff asserted that the purpose of the regulation was "specifically to drive the (f)arm out of business in furtherance of Defendants' own personal motivations, self-interest, and malice towards the Plaintiff, and for reasons unrelated to zoning, land use planning, or any legitimate purpose." Id.

By receiving a permit from the Nebraska Department of Environmental Quality to construct the facility and incurring investment costs related to the preparation for and construction of a swine CAFO prior to the enactment of zoning regulations by Hayes County, Plaintiff believed Defendant created a vested property right to operate the farm under Nebraska law. Id.

Plaintiff grounded its procedural due process claim on the regulation's definition of odor claiming that it was impermissibly vague. Id.

Analysis and Holdings

"(T)o assert a substantive due process violation, a plaintiff must establish a constitutionally protected property interest and must allege that state officials used their power in such an arbitrary and oppressive way that it shocks the conscience. Property interests are created by existing rules or understandings that stem from an independent source, such as state law. To establish a property interest, a plaintiff must show more than a unilateral expectation of it; he or she must show a legitimate claim of entitlement." Id. at *2 (citations omitted). The court held that Plaintiff's allegation that the permit issuance created a legitimate claim of entitlement to develop the CAFO failed because holding a permit does not negate the duty to comply with local government zoning regulations. Id. For a property interest to arise, a plaintiff must have more than a mere subjective expectancy. Id. Additionally, plaintiff's as applied substantive due process claim failed because its allegations concerning defendants' conduct did not shock the conscience. Id. at *3. The court found that controlling land use in the manner alleged by Plaintiff was rationally related to the legitimate end of protection of health and welfare. Id.

To establish a procedural due process violation, a plaintiff must assert a constitutionally protected property interest. Id. The court found that the process outlined in Plaintiff's complaint satisfied the requirements of procedural due process. Id.