Summary of a Recent
Judicial Development in
Animal Feeding Operations

Adherence to Zoning Laws Was Not a Complete
Defense to Private Nuisance Actions

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

The Supreme Court of Nebraska, in Johnson v. Knox County Partnership, 728 N.W.2d 101 (Neb. 2007), reversed the district court's grant of a confined animal feeding operation (CAFO) operator's motion for summary judgment based solely upon the CAFO's compliance with county zoning ordinances. Although CAFO operation did not violate county zoning, the court held there were genuine issues of material fact which precluded summary judgment on the claim that the operation of the confinement facility constituted a private nuisance.

Background

In April 1999, Knox County amended its zoning regulations and added three provisions: (1) no extension, enlargement, or addition of over 150 animal units can be created unless a CAFO permit is obtained from the Zoning Administration, (2) an appropriate land base is required to spread manure to prevent pollution, and (3) CAFO facilities must have a minimum set back from residences (for beef, there must be a minimum distance of one foot from a residence for each animal unit). Id. at 105. In May 2003, the county zoning commissioner officially "grandfathered" the CAFO at issue for 5000 head of cattle because it had not undergone expansion as of April 1999. Id.

The Johnsons, neighbors of the CAFO facility, attended the county zoning meetings in 2004 and presented complaints that the CAFO facility was operating in violation of county zoning regulations; however, the county attorney believed that the CAFO facility was "grandfathered" under county zoning regulations and any expansions were done prior to the 1999 county zoning regulations. Id. On June 4, 2004, the Johnsons filed suit against the CAFO operators. Id. The district court held that the Johnsons had standing to sue, but granted the operators' motion for summary judgment because the CAFO facility was appropriately "grandfathered" in and was not violating any county zoning permits. Id. at 106.

Arguments

Based on the April 1999 changes to the zoning ordinances, the Johnsons argued that the CAFO was operating in violation of the ordinances because: (1) the CAFO contained more than 3,868 animal units, and the Johnsons' residence was only 3,867 feet away from the facility; and (2) since 1999, the CAFO had expanded by more than 150 animal units. Id. Additionally, the Johnsons alleged that manure from the facility was being dumped in large quantities, rather than being spread correctly, causing pollution to the Johnsons' soil, water, and air. Id. at 108-09. They alleged that the ordinance violations and manure dumping, taken together, constituted a private nuisance, and that enjoining the CAFO facility was appropriate. Id. at 109.

The CAFO operators denied the material allegations, relying on the district court's holding that the CAFO facility had been "grandfathered" in and, therefore, summary judgment on the nuisance complaint was appropriate. Id.

Analysis and Holdings

Because there was no evidence indicating that the CAFO operation was in violation of any zoning ordinances or its permit, and the Johnsons failed to challenge the district court's holding regarding zoning, the CAFO operators were entitled to partial summary judgment. Id.

To establish their nuisance claim, the Johnsons were not required to prove a zoning ordinance violation. Id. The court held that the CAFO facility was not a nuisance per se, but it could become a nuisance if it was operated in a manner that caused "actual physical discomfort to a person of ordinary sensibilities." Id. The Johnsons testified that members of their family had experienced breathing problems, eye irritation, nausea, and headaches from dust and odor emanating from the CAFO, and that liquid manure occasionally would spray onto their property. Id. In reviewing the evidence in the light most favorable to the party against whom the summary judgment is granted, the court concluded that there were genuine issues of material fact as to whether the CAFO caused a substantial invasion of the Johnsons use and enjoyment of their property. Id. Therefore, the CAFO operators were not entitled to summary judgment with respect to their private nuisance claim. Id.

The case was decided on March 2, 2007.