Transcript Religion and Regulation - College of Architecture

Regulation and Agricultural Use
Special Treatment for
Agriculturally Related Uses
Agricultural – Our Number One
Business
City of Lilburn v Sanchez
The City of Lilburn requires that a landowner
have at least one acre to keep a “potbellied”
pig as a household pet
 Sanchez has a pig and lives in the middle of
a subdivision on a .24 acre lot
 The pig’s name is Eugenie and the
Family considers him to be a
Family pet

The Sanchez’s Strike Back




The Sanchez’s claim that since this is a
household pet the ordinance discriminates
against them
Don’t have to have a dog on an acre
Don’t have to have a cat on an acre
The trial court agrees and strikes down the 1
acre requirement; also says you don’t have to
have permission of the neighbors to have
Eugenie live with them
The Sanchez’s
Appeals Court



Well, potbellied pigs are not a suspect class
so the court is only going to use a rationally
related test
Therefore, the Sanchez’s are going to have to
produce some pretty good evidence
This is not going to go well for them if you
can’t tell by now
Evidence





Expert veterinarian says that the smell coming from
swine is much stronger than dogs or cats
The things poop about 4 times more than any other
animal around
Neighbors say that they can’t get within 20 feet of the
house without gagging
Eugenie is 60 pounds and will grow to about 100
pounds
Swine have transmittable diseases whereas most
domesticated animals do not
Decision



Seems pretty clear to the court that the City
has a rational basis for containing El Porko
on lots of one acre or more
The trial court clearly erred because they
beloved the idiot that bred these pigs that as
the size of the lot increases, so does the size
of the pig and the amount of manure
Goodbye Eugenie
The Remains of the Potbellied
Pig
Blauvelt v Leavenworth County



Blauvelt’s purchased 40 acres with the intent
of starting a farming operation in
Leavenworth County, Kansas
Applied for a building permit but were denied
for various reasons – including improper
setbacks
The Blauvelt’s sued and lost at the trial court
level since the court did not find that a “farm
house” served an agricultural purpose
Argument


Kansas Law provides no determination nor
rule nor regulation shall be held to apply to
the use of land for agricultural purposes, nor
for the erection or maintenance of buildings
thereon for such purposes so long as such
land and buildings erected thereon are used
for agricultural purposes and not otherwise.“
The basic question then is does a farm house
have an agricultural purpose?
The Court’s Reasoning


The County says that a house in which a farmer
resides is residential, does not serve an agricultural
purpose and therefore is not exempted from county
zoning regulations They argue that the use of a
house is purely a residential purpose while other
structures on a farm, such as barns, silos, pigpens,
etc., are used for agricultural purposes.
There are literally thousands, of family farms located
throughout Kansas and we are sure it would come as
quite a shock to most of these people to learn that
their homes, many occupied for generations while the
family tilled the soil, were not a part of their
agriculture operations and were not used for
agricultural purposes.
Fields v Anderson Cattle
Company




In 1959 the Field’s purchase a 3 acre lot in a rural
subdivision
At that time the Anderson Cattle Company operated a
small feedlot about ½ miles from the Fields – there
was little odor
Anderson cattle purchased two other feed lots and
expanded their own operation so that it was nearly
adjacent to the Field’s home
The operation feed about 15,000 cattle and 6,000
sheep on a daily basis
The Case Itself



There is no doubt that the Anderson Cattle company
constituted a nuisance to the Fields but this is not the
heart of the case
The Lyons County zoning ordinance does not classify
the Anderson operation as an “agricultural use.”
Rather, the ordinance states that cattle feeding is an
industrial use not subject to the agricultural
exemption
The Anderson Cattle Company contests this
ordinance since it would have an impact of the
damages stemming from their nuisance suit.
Agricultural Use or Not?


In its commonly accepted sense the term
"agriculture" includes the breeding, rearing and
feeding of livestock in preparation for market. The
preparation of farm products for market is the
dominating purpose of the agriculturalist.
Whether the owner of livestock fattens his cattle for
market in the blue stem pastures of the Flint Hills or
in feed lots where they are given more condensed
rations, the preparation for market continues as an
agricultural pursuit.
Conclusion



The Court Says we must conclude that the
feeding of livestock for market is an
agricultural pursuit and that the structures
used in connection therewith are for
agricultural purposes.
No such thing as a commercial cow
No such thing as an industrial cow
Anderson Cattle Company
What Happens When You are
Raised Near A Feedlot
Same Thing Happens When You Are
Raised Near Hog Lots
And Then There Was Carp

Carp v Board of County Commissioners of
Sedgwick County – HOGS – HOGS - HOGS
Background




Fred Carp owned an intensive hog operation near the
3 mile extraterritorial zoning district of Wichita
When he purchased 160 in the extraterritorial zone
the City of Wichita moved to enforce against the
expanded operation
The trial court held that the nature of his operation
was commercial rather than agriculture because the
animals were raised under controlled continues in
self-contained buildings
Carp did not breed the pigs – rather they were
shipped to him and feed in the buildings until they
were ready for market
Pit Stop Statistics



Your typical porker in confined feeding hits
the HEAD about 20 times per day (# 2 – that
is)
Anywhere from 10 to 100 times more
concentrated that human waste – dependent
upon feed
10,000 hogs organically produce waste BOD
equal to a town of 45,000 persons
The Supreme Court



The court reviewed expert testimony on the nature
and definition of agriculture
One witness stated that agricultural actually referred
to the raising on crops and that under this strict
definition, animal husbandry is excluded
However, the court concluded that the term
agriculture is traditionally broad and that whether
animals are raised in buildings on in the fields – it still
constitutes an agricultural use and is entitled to
exemption
Nuisance Exemption



From 1950 onward the predominate growth from in
the United States has been urban sprawl.
As uses sprawl outward into the rural areas there is
an inevitable conflict of lifestyles and land use
In the 1960s and 1970s many “nuisance” suits were
filed by new residents against production agricultural.
Not all were limited to livestock – more than a few
targeted noise, dust, chemical applications, and the
intensive activity that often runs 24/7 throughout the
year
Many State Passed Nuisance
Exemption

More than ¾ of the States now have statutes that
protect production agriculture from nuisance suits.
Most are based on the following criteria:
Bona Fide agricultural use
 First or superior in time
 Unchanged in scale of operation
 Continuous operation
 Best practices

Bormann/McGuire v Kossuth Co.

Iowa permits bona-fide owners of agricultural
lands to apply to the a board of county
commission for an "Agricultural Lands
Designation" under the Iowa Agricultural
Protection Act. This designation grants certain
protection and benefits to owners of
agricultural lands. The most important of
these is that generally, operators are exempt
from "nuisance suits" by neighbors owing nonagricultural property.
The Iowa Exclusion Law


“A farm or farm operation located in an
agricultural area shall not be found to
be a nuisance regardless of the
established date of operation or
expansion of the agricultural activities
of the farm or farm operation.”
The exclusion does not extend to
negligent operation, the pollution of
land or water, or excessive soil erosion
Background




A group of farm owners, including the Girres’ applied
for the AG. Lands Designation on 955 acres
Initially, they were rejected by the County
Commission because there was no real pressure to
convert farmland in this area, and nuisance immunity
could impact the nearby residential owners
Several months later they reapplied and the County
grant the designation by a vote of 3-2
The Bormanns and the McGuires filed suit
Facts of the Suit



The Bormanns/McGuires allege that the Ag
Designation gives the agricultural owners to create
and maintain a nuisance over their property
In other words, create an easement in favor of
the farmers. The creation of the easement, the
neighbors conclude, results in an automatic or
per se taking under a claim of regulatory
taking.
The defendants claim that no physical invasion
occurred and that the AG Designation did not
take all or nearly all of the economic value of
their property
The Iowa Court Ponders


Property is not alone the corporeal thing, but
consists also in certain rights created and
sanctioned by law, of which, with respect to
land, the principal ones are the rights of use
and enjoyment
The property interest at stake here is that of
an easement, which is an interest in land.
Over one hundred years ago, this court held
that the right to maintain a nuisance is an
easement. An easement is:
What Does An Easement Mean?
My lot
Your lot
This is a 30’ right-of-access easement over my property
I granted to you with I sold you the lot. It is still my
property, but it is yours to use for the purpose of
access
This is a 12’ strip of land I granted to the public so that
a water and power line could be connected to your lot
that I sold you. It is my land, but the public utility may
use it for the purpose of providing services
Easement


An easement is a privilege without profit,
which the owner of one neighboring property
[has] on another, by which the one owner is
obliged to suffer, or not do something on his
own land, for the advantage of the other
owner
If the legislature wishes to offer a nuisance
exemption to agricultural lands then it must
be recognized as a taking and is due
compensation
The Example
Your Land
My Farm
Big CAFO
Your House
Limit of
Intense
Odor