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A new livestock operation moving into an area can often cause fear among neighbors over potential changes in the neighborhood. Neighbors may fear new smells, sounds, and sights being a part of daily life or change the character of the neighborhood. Many states grant counties or cities the power to develop zoning ordinances related to agriculture to limit these concerns. Minnesota recently saw a court case involving a county granting a conditional use permit (CUP) for a new feedlot challenged in state court by a group of realtors. The realtors claimed approving the CUP was unreasonable or contrary to the law because the record did not reflect that the feedlot would meet the mandatory minimum requirements in the zoning ordinances. The Minnesota Court of Appeals disagreed and upheld the granting of the CUP to the feedlot (Rosenquist, 2017).
Before we start with the court’s decision, I should point out what a CUP is. A conditional use permit, or CUP, can also be called a special-use permit. A CUP is the zoning authority granting the individual a permitted exception to a zoning ordinance. In this case, Circle K applied for a CUP to build a 4,700-hog finishing facility in Goodhue County. Circle K was found not to pose a risk of significant environmental effects by the state’s Pollution Control Agency, and after a public hearing, the county granted its application for a CUP to build the hog facility.
A group of realtors challenged the granting of the CUP, claiming that granting the CUP was unreasonable or contrary to the law because the record did not reflect meeting the required minimum requirements in the zoning ordinance. On review, the Court of Appeals of Minnesota disagreed.
First, the court agreed with the farm that the reasons given by the county in granting the CUP were legally sufficient. The court next turned to arguments that the county acted unreasonably in granting the CUP because the hog farm would:
Violate a county odor-offset ordinance;
Pose environmental concerns; and
Reduce property values and create a nuisance.
The county’s odor-offset ordinance required new animal facilities to either: 1, not be located within 1,000 feet or 2, meet a 94-percent odor annoyance-free rating, a distance based on an odor evaluation model developed by the University of Minnesota, from an existing dwelling (other than the operator’s dwelling or one that was an accessory to the facility), including churches, public parks, schools, or private schools but excluding homeschool sites.
In using the odor-offset evaluation model, the county had not taken into account an unenclosed rendering pit that would be built on the hog farm. The county argued that based on the zoning ordinances and previous history, the county had never considered an unenclosed rendering pit in past applications. The odor-offset evaluation model also did not include an unenclosed rendering pit as an option because little emissions data on this type of facility existed. The court determined the evidence supported the county’s determination.
Turning to the environmental concerns, the realtors argued that the county did not consider dangers the hog farm posed by hydrogen-sulfide air pollution and groundwater pollution. The court found that the state’s Pollution Control Agency did extensive analysis and concluded these concerns did not pose an environmental risk. The realtors also did not challenge this conclusion at any point during the review process. The court upheld the county’s decision.
Finally, the realtors argued that the hog farm would substantially diminish property values and create a nuisance. During the review of the application to grant the CUP, the realtors introduced studies showing property values decrease when a hog farm is constructed nearby. In previous decisions, the court had required more concrete proof than general assertions that property values may go down. Based on the lack of evidence, the court deferred to the county’s findings in granting the CUP.
Why Care?
This decision is out of Minnesota; challenges to zoning and planning decisions are often state-specific and can be county-specific with ordinances varying county to county. This case highlights the deference which courts usually give to local governments when reviewing, granting, or denying zoning permits.
This decision also highlights another important issue when challenging the denial or approval of a zoning permit: the parties need to make sure they challenge decisions at the appropriate time. Looking back at this decision, the realtors never presented evidence that the hog farm would pose a substantial environmental concern to counter what the state agency had found during the county hearing. Working with an attorney early in the zoning process, can help ensure that you navigate the process and preserve potential legal challenges down the road. Though in this case the realtors challenging the permit lost, this may not always be the case. It’s generally in the producer’s best interest to work with a qualified attorney.
References
Rosenquist v. Circle K Family Farms, #A17-0279, 2017 WL 6418872 (Minn. Ct. App. Dec. 18, 2017).