The article is not a substitute for legal advice.
A new livestock operation moving into an area can often cause fears from neighbors over potential changes in the neighborhood. Neighbors may fear new smells, sounds, and sights being a part of daily life or changes in the character of the neighborhood. Many states grant counties (or potentially cities) the power to develop zoning ordinances related to agriculture to help limit some of these concerns. One state, 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 conditional use permit 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 finishing hog facility in Goodhue County. Circle K was found not to pose a risk too 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 not be located within 1,000 feet or a 94 percent odor annoyance-free rating (a distance that was 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), churches, public parks, schools, or private schools excluding homeschool sites.
Turning to the environmental concerns, the realtors argued that the county did not consider dangers the hog farm posed due to hydrogen-sulfide air pollution and groundwater pollution. The court finds that the state’s Pollution Control Agency did extensive analysis and found 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.
The realtors finally 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 had introduced studies that show property values decrease when constructing a hog farm 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 defers to the county’s findings in granting the CUP.
The 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 does highlight the deference that 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 often 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. Often, in navigating the complicated process with zoning working an attorney early on, so you follow the rules and preserve potential challenges is important. Although in this case, it was the realtors challenging the granting of the permit that lost, this may not always be the case, and it’s in the producer’s best interest to work with a qualified attorney to handle everything to the producer’s benefit.
Rosenquist v. Circle K Family Farms, #A17-0279, 2017 WL 6418872 (Minn. Ct. App. Dec. 18, 2017).