Summary of a Recent
Judicial Development in
Animal Feeding Operations

Builder of CAFO Failed to Establish a Nonconforming Use
Prior to Zoning Effective Date

Kaycee Wolf
National AgLaw Center Research Associate

Summary of Decision

In Hanchera v. Board of Adjustment, 694 N.W.2d 641 (Neb. 2005), the Supreme Court of Nebraska reversed the district court's affirmance of the board's decision to affirm the zoning administrator's determination that the facilities were not subject to comprehensive plan and zoning regulations which restrict the construction of confined animal feeding operations (CAFOs).

Background

Hanchera filed a complaint with the Red Willow Count Board of Commissioners against the operation of confined animal feeding facilities by Furnas County Farms. Id. at 642. The Board referred the matter to the zoning administrator who found that both properties fell outside of the zoning regulations enacted in 2001. Id. at 643. Hanchera appealed the decision to the Board of Adjustment. Id. The Board of Adjustment affirmed the decision of the Zoning Administrator and the District Court affirmed the Board of Adjustment decision because there was competent evidence of substantial construction at the facilities causing the facilities to fall outside of the zoning regulations. Id.

The county was in the process of developing a comprehensive zoning plan and accompanying regulations in 2001. Id. at 644. This adoption would restrict the construction of CAFOs. Id. Furnas County Farms was aware of the development of the comprehensive zoning plan and regulations when it was attempting to build its CAFO. Id. On September 24, 2001, a motion was made to accept the plan and recommend its acceptance to the Board of Commissioners. Id. The Board of Commissioners passed a motion to include the language of the comprehensive plan and identified October 16 as the effective date for both regulations. Id. On that same day, the Board of Commissioners passed resolutions that provided that a hearing was held on September 25 and that the comprehensive plan was thereby adopted. Id. The front page of the zoning regulations reflected that they were adopted on September 25 and became effective on October 16, but the zoning regulations themselves made no reference to the date. Id.

Arguments

Hanchera argued that (1) the district court erred by finding that the zoning regulations were effective as of October 16, 2001, and not September 25, 2001, and (2) there was no evidence showing that a nonconforming use existed prior to the effective date of the zoning regulations becoming effective. Id. at 645.

Analysis and Holdings

As to the second argument, the court held that Furnas County Farms did not obtain vested interests in the two properties and that the properties were subject to the zoning ordinances. Id. at 647. The court found that Furnas County Farms did not act in good faith because it was aware that the county was in the process of developing regulations which would hinder its CAFOs. Id. Good faith meant without knowledge of the imminent adoption of new zoning regulations. Id. at 646. The court found that Furnas County Farms' construction activity took place after the passage of the zoning regulations on September 25, and was an attempt to circumvent the regulations. Id. at 647.

The court stated that it did not need to address Hanchera's first argument because it found that Furnas County Farms did not have a vested interest in the properties. Id.

The case was decided on April 8, 2005.