Summary of a Recent
Judicial Development in
Animal Feeding Operations

Preliminary Injunction Vacated Allowing Hog Operator
to Expand Existing Livestock Facility

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Rochester Buckhart Action Group v. Robert Young, 887 N.E.2d. 49 (Ill. Ct. App. 2008), the Fourth District Appellate Court of Illinois reversed and remanded the trial court's decision, which denied the livestock operator's motion to vacate a preliminary injunction enjoining him from constructing or operating a hog farm on his property pending the outcome of litigation.

Background

Claiming that the proposed operation would produce massive volumes of feces, urine, blood, and waste, cause unpleasant odors, attract insect and disease vectors, and reduce property values, the plaintiff, a non-for-profit environmental organization, opposed the proposed hog operation's expansion on the defendant's property. Id. at 51. The plaintiff filed a three-count complaint alleging both nuisance and public nuisance, and seeking a declaratory judgment. Id. at 51-52. To enjoin defendant from constructing or operating a hog farm pending the outcome of the litigation, the plaintiff successfully sought a preliminary injunction by showing probable success on the merits, irreparable harm, and a lack of legal remedy. Id. at 52. After the court granted the preliminary injunction, the defendant sought to have the injunction vacated but was unsuccessful. Id. The defendant appealed. Id.

Arguments

The plaintiff claimed that the proposed hog operation would violate the Livestock Management Facilities Act's requirements for new facilities. Id. at 53. The Act provided minimum setbacks, stiffer design requirements, and an opportunity for public notice, comment, and hearing when new facilities are contemplated. Id. Without complying with the Act's provisions, the plaintiff claimed that the defendant was not authorized to construct the facility. Id. at 53-54.

The defendant raised as an affirmative defense the fact that he was not constructing a new facility but instead expanding an existing facility. Id. at 54. As such, the defendant would not have to meet the requirements for the construction of a new facility. Id.

Analysis and Holdings

In determining whether the trial court erred in failing to vacate the preliminary injunction, the court focused on whether the defendant's proposal constituted a new facility or simply the expansion of an existing one. Id. It looked at the definition of "new facility" in the Livestock Management Facilities Act, which stated, "[n]ew facility means a livestock-management facility or a livestock waste-handling facility the construction or expansion of which is commenced on or after the effective date of this Act . . . [e]xpanding a facility where the fixed capital cost of the new components constructed within a 2-year period does not exceed 50% of the fixed capital cost of a comparable entirely new facility shall not be deemed a new facility as used in this Act." Id. at 54 (citing 510 Ill. Comp. Stat. Ann. 77/10.45 (2006)). The court held that although the previous hog facility had been razed and no pigs were on site for a period, the dairy operation maintained the overall operation's status as a livestock management facility; therefore, it was not deemed a new facility. Id. Additionally, the court held the cost of the proposed expansion was less than 50% of the fixed capital cost of a comparable entirely new facility. Id. For this reason, the court held that the expansion of defendant's hog operation did not re-characterize the status of his livestock management facility. Id. at 54-55.

The case was decided on March 14, 2008.