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 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 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 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 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 dog on an acre Don’t have to have a cat 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 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 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 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 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 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 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 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 Eugenie is 60 pounds and will grow to about 100 pounds Swine have transmittable diseases whereas most domesticated animals do not 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 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 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 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 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 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 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.“ 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 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. 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. 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 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 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 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 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 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 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. 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. 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. 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. 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 a commercial cow No such thing as an industrial 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 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 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 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 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 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) 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 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 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 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 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 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. 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 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 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: 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 non- agricultural property. 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 non- agricultural 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.” “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 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 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 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 Several months later they reapplied and the County grant the designation by a vote of 3-2 The Bormanns and the McGuires filed suit 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 The Bormanns/McGuires allege that the Ag Designation gives the agricultural owners to create and maintain a nuisance over their property In other words, c reate 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. In other words, c reate 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 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 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: 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 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 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 My Farm Your Land Your House Big CAFO Limit of Intense Odor