Summary of a Recent
Judicial Development in
Animal Feeding Operations

County's Regulation of Concentrated
Livestock Operations Upheld

Kaleb K. Henigh
National AgLaw Center Graduate Assistant

Summary of Decision

In Premium Farms v. County of Holt, 640 N.W.2d 633, (Neb. 2002), the Supreme Court of Nebraska held that a county ordinance that regulated the land use of concentrated livestock operations was enforceable and did not exceed the zoning authority of the county that enacted the ordinance.

Background

Plaintiff Premium Farms (Premium), while engaged in the construction of a "confined hog production facility" in Holt County, Nebraska sought a declaratory judgment to prevent the enforcement of a county zoning ordinance that required confined livestock operations (CLO) containing more than 1,000 animal units to acquire a conditional use permit from the county. See id. Premium claimed that the county lacked the authority to regulate a "building used for agricultural purposes." Id. It relied on Nebraska Rev. Stat. § 23-114.03, which provides in pertinent part the following:

[w]ithin the area of jurisdiction and powers established by section 23-114, the county board may . . . regulate, restrict, or prohibit the erection, construction, reconstruction, alteration, or use of nonfarm buildings or structures and the use, condition of use, or occupancy of land . . . .

Id. at 636.

The trial court determined that § 23-114.03 prevented counties from "regulating farm buildings, but not farm structures," and that state counties had no zoning authority over "buildings used for agricultural purposes." Id. The trial court did, however, determine that county regulation of land use "outside the building" was permitted under § 23-114.03. See id. at 637. The court issued an injunction to prevent the county from enforcing the ordinance against Premium. See id. Both parties appealed to the Supreme Court of Nebraska. See id. at 638.

Arguments

The county argued that the trial court erred when it determined that § 23-114.03 was ambiguous and examined the legislative history for clarification. See id. The county also argued that the trial court wrongfully prevented it from enforcing the county ordinance. See id. at 638. Premium argued that the trial court failed to invalidate portions of the ordinance regulating agricultural land use based on the "plain meaning" of § 23-114.03. See id.

Analysis and Holdings

The court held that the county ordinance did not exceed the county's authority under § 23-114.03 by requiring CLO's to obtain a "conditional use permit." See id. at 643. It determined the "farm building exemption" contained in § 23-114.03 prohibited any county regulation that required "building permit requirements." See id. at 642. The court distinguished the county imposition of obtaining a "conditional land use permit" from county farm building construction requirements and held that the county did not exceed its authority when it "require[d] CLO's to adhere to certain standards concerning manure removal and setbacks." Id. at 643. The court added that the legislature only sought to prevent counties from requiring building construction permits, something that the county ordinance did not require. See id.

The case was decided on March 15, 2002; this summary was posted Jan. 6, 2005.