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Regulation and Agricultural Use

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Well, potbellied pigs are not a suspect class so the court is only going to use ... Neighbors say that they can't get within 20 feet of the house without gagging ... – PowerPoint PPT presentation

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Title: Regulation and Agricultural Use


1
Regulation and Agricultural Use
  • Special Treatment for
  • Agriculturally Related Uses

2
Agricultural Our Number One Business
3
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 pigs name is Eugenie and the
  • Family considers him to be a
  • Family pet

4
The Sanchezs Strike Back
  • The Sanchezs claim that since this is a
    household pet the ordinance discriminates against
    them
  • Dont have to have a dog on an acre
  • Dont have to have a cat on an acre
  • The trial court agrees and strikes down the 1
    acre requirement also says you dont have to
    have permission of the neighbors to have Eugenie
    live with them

5
The Sanchezs
6
Appeals Court
  • Well, potbellied pigs are not a suspect class so
    the court is only going to use a rationally
    related test
  • Therefore, the Sanchezs are going to have to
    produce some pretty good evidence
  • This is not going to go well for them if you
    cant tell by now

7
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 cant 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

8
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

9
The Remains of the Potbellied Pig
10
Blauvelt v Leavenworth County
  • Blauvelts 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 Blauvelts sued and lost at the trial court
    level since the court did not find that a farm
    house served an agricultural purpose

11
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?

12
The Courts 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.

13
(No Transcript)
14
Fields v Anderson Cattle Company
  • In 1959 the Fields 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 Fields home
  • The operation feed about 15,000 cattle and 6,000
    sheep on a daily basis

15
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.

16
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.

17
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

18
Anderson Cattle Company
19
What Happens When You are Raised Near A Feedlot
20
Same Thing Happens When You Are Raised Near Hog
Lots
21
And Then There Was Carp
  • Carp v Board of County Commissioners of Sedgwick
    County HOGS HOGS - HOGS

22
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

23
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

24
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

25
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

26
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

27
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.

28
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

29
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

30
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

31
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

32
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
33
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

34
The Example
My Farm
Your Land
Big CAFO
Limit of Intense Odor
Your House
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