Larry Coffey v. County of Otoe

Otoe County enacted a zoning regulation that prohibits,
among other things, the construction of single-family dwellings
within a one-half-mile radius of certain animal feeding and
waste handling facilities, unless the owner of the single-family
dwelling grants an impact easement to the owner of the facility
and the owner of the facility agrees to the easement. T he
primary issue presented in this appeal is whether the regulation,
requiring that the granting of the easement be "mutual,"
constitutes an unauthorized delegation of legislative authority to
private citizens.

STATEMENT OF FACTS

Kent K reifels began operating a hog confinement facility
on his property in O toe County, N ebraska, in 1990. As part of
his hog confinement operation, Kreifels disposes of the waste
produced by the pigs by spreading the waste on various parts of
his property. O n the occasions when the waste is spread upon
Kreifels' property, the dust, noise, and odor can be bothersome
for neighboring property owners.

Beginning in March 2000, O toe County held several public
meetings to discuss and consider regulations for a comprehensive
zoning plan for the county. In April 2001, before the
zoning regulations had been adopted, Larry Coffey purchased
approximately 195 acres of land adjacent to the land owned by
Kreifels in O toe County. A t the time Coffey purchased the land,
it was zoned as agricultural. It was Coffey's intent to divide
the land into smaller parcels and sell the lots for residential
development.

The comprehensive zoning plan and regulations
were adopted by the county on A pril 9, 2002, and were later
amended on S eptember 23, 2003. For purposes of this case, the
amendments made to the regulations in 2003 are not substantive
and thus, we will use this current version.

Under the new zoning regulations, both K reifels' and Coffey's
properties are located in the "General A gricultural District."

The following regulations, designed to promote and facilitate
agriculture, are relevant to this case:

501.01 INTENT: T he intent of [the general agricultural]
district is to promote and facilitate agricultural
crop production, livestock production, which is in balance
with the natural environment, and other and new
forms of agricultural production which are compatible
with existing agricultural uses and the environmental limitations
of the County. T he intent is also to encourage soil
and water conservation, to prevent contamination of the
natural environment within the County and to preserve
and protect land best suited for agricultural uses by preventing
or regulating the introduction, encroachment and
location of commercial uses, industrial uses and other
non-agricultural
uses, including non-farm residential uses,
which would be or could become incompatible with the
agricultural character and occasional generation of dust,
odors, and other similar events produced agricultural uses,
or which could result in contamination of the air, soils and
water, or which could negatively impact the use, value and
enjoyment of property, and the culture and way of life in
Otoe County.

. . . .

501.03 PERMITTED PRINCIPAL USES AND

STRUCTURES: The following uses and structures shall be
permitted uses, but shall require the issuance of a zoning /
building permit and / or certificate of zoning compliance:
. . . .

9. S ingle-Family dwellings . . . provided such dwellings
comply with all of the following conditions.

A. S uch dwellings, if not on the same lot with and not
of the same ownership as any existing confined animal
feeding use . . . shall be separated from such use by the
minimum distance specified in T able 501.05, MINIMUM
SEPARATION DISTANCES FOR CON FINE D AN D
INTENSIVE ANIMAL FEEDING USES for the size
of the animal feeding use and the type of waste handling
facility in existence, provided that if one or more
impact easement(s), as defined in Section 303.53 of this
Resolution, is/are granted by the owner of the dwelling
unit to the owner of a confined or intensive animal feeding
use or waste handling facility, any dwelling unit(s) associated
with the land on which any such easement has been
granted shall not be included in the minimum distance
measurements herein specified.

Pursuant to table 501.05, the required minimum distance in
this case between Kreifels' operation and a neighboring residence
would be one-half mile. The record establishes that of the
195 acres of land owned by Coffey, approximately 192 acres fall
within one-half mile of Kreifels' hog confinement operation.
Section 303.53 defines an "Impact Easement" as
[a]n easement or deed restriction, recorded in the office of
the O toe County Registrar of Deeds, which runs with the
land, which is granted to the owner of an industrial use, a
confined or intensive animal feeding use, a waste handling
facility use or other use for the period of time that such
use shall exist, by the owners of adjoining or neighboring
real property in which it is mutually agreed that the
grantor shall hold the grantee harmless from odor, smoke,
dust, or other legal impacts associated with such use on
the grantor's property when such use is operated in accordance
with the terms of such easement or deed restriction.
[(Emphasis supplied.)]

After the zoning regulations had been adopted, Coffey had
his property surveyed. On August 29, 2002, Coffey filed with
the O toe County register of deeds a subdivision plat dividing
his property into five tracts. O n March 4, 2003, the zoning
administrator for O toe County sent Coffey's real estate agent a
copy of the O toe County zoning regulations and informed the
agent that an impact easement would be needed from Kreifels
before a building permit could be issued for Coffey's lots.
In October 2004, Coffey entered into an agreement to sell
one of his parcels of land to R ay and Connie O 'Connor. In
the agreement, the O 'Connors acknowledged the presence of
Kreifels' hog confinement facility and the need to obtain an
impact easement. T he agreement also provided that the sale of
the land was subject to the acquisition of a building permit. O n
December 2, Coffey, through his attorney, prepared an impact
easement and sent it to K reifels. T he impact easement was
attached to a letter requesting that K reifels sign the impact easement
and return it to Coffey's attorney within 7 days. K reifels
did not sign or return the impact easement.

Without having acquired an impact easement, the O 'Connors
requested a building permit. On December 30, 2004, the zoning
administrator sent a letter to the O 'Connors, explaining that
pursuant to the zoning regulations, the zoning administrator
could not issue a building permit within one-half mile of where
Kreifels deposits liquid manure products unless the O 'Connors
obtained an impact easement signed by Kreifels.

Coffey then filed an application for a conditional use permit
with the O toe County P lanning Commission to allow residential
construction on his property. Following a hearing, the
Otoe County P lanning Commission denied Coffey's request
on February 17, 2005. Coffey then applied to the O toe County
Board of A djustment for a variance from the application of the
zoning regulations. O n A pril 21, the O toe County B oard of
Adjustment denied Coffey's request for a variance. T he present
action was then filed in the district court for O toe County.
In his complaint, Coffey appealed the O toe County B oard of
Adjustment's denial of his request for a variance. Coffey also
sought declaratory and injunctive relief, claiming, among other
things, that § 501.03, subsection (9)(A), and § 303.52 (now
§ 303.53 with the 2003 amendments) of the zoning regulations
are unlawful because these sections constitute "an unlawful
delegation of the county's governmental regulatory power to
private individuals." Kreifels and his wife filed a motion to
intervene, which was granted.

There was testimony presented at trial that Kreifels' hog
confinement operation attracts a large number of flies and also
generates odor, noise, and dust. Kreifels explained that, among
other things, he is concerned that if he signed the easement and
continued to operate his hog confinement facility, he would
continually be involved in litigation regarding the validity of the
easement and in potential future litigation relating to the health
of the property owners within a one-half-mile radius.

The evidence presented at trial also indicated that although
Kreifels refused to sign Coffey's impact easement, Kreifels had
signed two impact easements in the past for other property owners
whose land was adjacent to his. K reifels testified, however,
that he signed the prior impact easements because, at the time,
it was his understanding that he was required to do so.

Following a bench trial, the district court affirmed the denial
of Coffey's request for a variance, concluding that Coffey had
failed to show that the decision of the B oard of Adjustment was
not supported by the evidence, or was arbitrary and unreasonable,
or clearly wrong. T he court also determined that the portion
of § 501.03(9)(A) of the zoning regulations which provided
for a mutual impact easement exception to the one-half-mile
building prohibition was an unlawful delegation of the county's
legislative authority and a violation of Coffey's rights to due
process and equal protection of the law.

However, the court found that while the "impact easement"
exception in § 501.03(9)(A) was invalid, the remainder of
§ 501.03(9)(A), as well as the other provisions in the zoning
regulations, are still enforceable. T he court explained
that "[s]triking the ‘impact easement' exception portion of
§ 501.03(9)(A) results in the first part of § 501.03(9)(A) remaining
intact, meaning that a building [sic] is strictly prohibited
from building residential dwellings within the [one-half-]mile
halo, the minimum distance requirement set in T able 501.05 of
the O toe County [z]oning [r]egulations."

Coffey filed a motion for new trial, which was overruled.
Coffey appeals, and O toe County and the O toe County B oard
of A djustment (hereinafter collectively O toe County) and the

Kreifels cross-appeal.

ASSIGNMENT OF ERROR

Coffey assigns, consolidated and restated, that the district
court erred in severing only the impact easement language
from § 501.03(9)(A) and enforcing the remainder of that section.
Coffey asserts that the court should have either (1) found
§ 501.03(9)(A) void in its entirety or (2) left § 501.03(9)(A)
intact and removed the language from § 303.53 requiring that
the impact easement be mutually agreed to.

On cross-appeal, the K reifels and O toe County assign,
restated, that the district court erred in determining that the
mutual impact easement language in the zoning regulations constituted
an unconstitutional delegation of legislative authority.

STANDARD OF REVIEW

[1,2] T he constitutionality of a statute or an ordinance is a
question of law. When reviewing questions of law, an appellate
court has an obligation to resolve the questions independently
of the conclusions reached by the trial court.

ANALYSIS

Constitutionality of § 501.03(9)(A)

We first address the argument raised by the K reifels and O toe
County in their cross-appeal, as our resolution of this issue is
dispositive of this appeal. O n cross-appeal, the K reifels and
State v. Champoux, 252 Neb. 769, 566 N .W.2d 763 (1997).
Coral Prod. Corp. v. Central Resources, 273 N eb. 379, 730 N .W.2d 357
(2007).

Otoe County contend that the district court erred in finding
that the mutual impact easement language in § 501.03(9)(A)
of the zoning regulations was an improper delegation of
legislative
authority.

[3-5] T he validity of a zoning ordinance will be presumed in
the absence of clear and satisfactory evidence to the contrary.
The burden of demonstrating the constitutional defect rests
with the challenger. T o successfully challenge the validity of
a zoning ordinance, the party challenging must prove that the
conditions imposed by the city in adopting the zoning ordinance
were unreasonable, discriminatory, or arbitrary, and that
the regulation bears no relationship to the purpose sought to be
accomplished by the ordinance.

Coffey contends that the district court correctly determined
that the mutual impact easement requirement in the zoning
regulations constituted an unconstitutional delegation of legislative
authority. In general, Coffey claims that the provision in
question violates due process because it gives owners of animal
feeding and waste handling facilities the ability to arbitrarily
and capriciously refuse the granting of an impact easement and,
as a result, restrict Coffey's ability to use his land.
The starting points for analysis of this issue are the U.S.
Supreme Court's opinions in Eubank v. Richmond and Cusack
Co. v. City of Chicago. In Eubank, an ordinance was enacted
that required the city's building committee to establish setback
lines for a given piece of property whenever requested
to do so by two-thirds of the adjacent property owners. T he
Court ruled that this ordinance was void. T he Court stated that
under the ordinance, "[o]ne set of owners determine[s] not
only the extent of use but the kind of use which another set
Premium Farms v. County of Holt, 263 N eb. 415, 640 N .W.2d 633 (2002);
Gas 'N Shop v. City of Kearney, 248 N eb. 747, 539 N .W.2d 423 (1995).
Maxon v. City of Grand Island, 273 N eb. 647, 731 N .W.2d 882 (2007).
Gas 'N Shop v. City of Kearney, supra note 3.
Eubank v. Richmond, 226 U.S. 137, 33 S . Ct. 76, 57 L. E d. 156 (1912).
Cusack Co. v. City of Chicago, 242 U.S. 526, 37 S . Ct. 190, 61 L. E d. 472
(1917).
may make of their property." T he Court explained
that owners
who have the authority to establish the line could
do so based on their own interest, caprice, or taste, and "[i]t is
hard to understand how public comfort or convenience, much
less public health, can be promoted by a line which may be so
variously
disposed."

Five years after Eubank, in Cusack Co.,10 the Court upheld a
city ordinance that prohibited the construction of billboards in
residential areas without the consent of the owners of a majority
of the frontage property on the block in which the billboard was
to be erected. T he corporation seeking to construct the billboard
argued that the ordinance was "a delegation of legislative power
to the owners of a majority of the frontage of the property in
the block ‘to subject the use to be made of their property by
the minority owners of property in such block to the whims and
caprices of their neighbors.'"11

The Court rejected this argument and distinguished
Cusack Co. from its previous holding in Eubank. T he Court
explained that

[a] sufficient distinction between the ordinance [in Eubank]
and the one at bar is plain. T he former left the establishment
of the building line untouched until the lot owners
should act and then made the street committee the mere
automatic register of that action and gave to it the effect of
law. T he ordinance in the case at bar absolutely prohibits
the erection of any billboards in the blocks designated, but
permits this prohibition to be modified with the consent
of the persons who are to be most affected by such modification.

The one ordinance permits two-thirds of the lot
owners to impose restrictions upon the other property in
the block, while the other permits one-half of the lot owners
to remove a restriction from the other property owners.

This is not a delegation of legislative power, but is, as we
Id., 226 U.S. at 143.
Id., 226 U.S. at 144. S ee, also, Seattle Trust Co. v. Roberge, 278 U.S. 116,
49 S . Ct. 50, 73 L. E d. 210 (1928).

[6] From these cases, courts have derived a well-recognized,
general rule for determining whether a consent provision violates
due process as an unlawful delegation of legislative authority. If
the action of a property owner has the effect of legislation
in that
the action creates the restriction or prohibition, then the ordinance
or statute constitutes an unlawful delegation of legislative
authority. B ut, if the consent is used for no other purpose than
to waive or modify a restriction which the governing
body has
lawfully created and has provided for such a waiver or modification
by those most affected, then the consent is regarded as
being within constitutional limitations.13

[7] A s the Court of A ppeals for the District of Columbia
explained, "[t]he S upreme Court has long held that a municipality
may prohibit a disfavored use of property but permit private
citizens to waive that prohibition and consent to the use."14
In order for a legislative delegation to private citizens to
survive a due process challenge, the Court instructs that
two criteria must be satisfied. First, the underlying exercise
of authority must be a reasonable regulation within
the power of the government. . . . S econd, the legislature's
restriction must be in the form of a general prohibition, and
the delegation must be in the form of permitting private
citizens to waive the protection of that prohibition.15

We recognize and agree with that articulation of the applicable
due process principles. T hus, the zoning regulation at
issue in this case will survive Coffey's constitutional challenge
if the regulation enacts a general prohibition that would be an
otherwise reasonable and valid regulation and then delegates to
private citizens the mere opportunity to waive that prohibition.
Here, we find that § 501.03(9)(A) meets this standard and is a
constitutionally permissible legislative delegation.
The N ebraska Legislature has given O toe County the power
to pass zoning ordinances "for the purpose of promoting the
health, safety, morals, convenience, order, prosperity, and welfare
of the present and future inhabitants of N ebraska."16 O toe
County, in accordance with this authority, adopted a comprehensive
zoning plan and zoning regulations. A s the O toe
County zoning regulation states, the intent of the general agricultural
district is "to preserve and protect land best suited for
agricultural uses by preventing or regulating the introduction,
encroachment and location of . . . non-agricultural uses, including
non-farm residential uses."17 O toe County accomplished this
intent by, among other things, enacting § 501.03(9)(A) which,
in general, prohibits the construction of single-family dwellings
within certain distances of animal feeding and waste handling
facilities, unless a mutual impact easement is obtained.
Had O toe County desired to do so, it could have adopted a
regulation, without the option of a mutual impact easement, that
absolutely prohibited the construction of single-family dwellings
within the setback distance set forth in the regulations.
Stated differently, absolutely prohibiting the construction of
single-family dwellings within the distances specified in the
regulations would have been a reasonable setback and a valid
exercise of O toe County's police power.18

Coffey argues, however, that O toe County did not intend
to absolutely prohibit the construction of single-family dwellings
within one-half mile of existing animal feeding or waste
handling facilities. R ather, Coffey suggests that by creating the
setback provision, O toe County simply intended to regulate
such construction. In support of this argument, Coffey notes
that single-family dwellings are listed as a permitted principal
use in the general agricultural district.

We are not persuaded by Coffey's argument. A lthough the
zoning regulations contain a broad statement that single-family
dwellings are a permitted principal use in the general agricultural
district, § 501.03(9)(A) expressly limits this broad statement.
S ection 501.03(9)(A) provides, in relevant part, that
[single-family] dwellings, if not on the same lot with and
not of the same ownership as any existing confined animal
feeding use, . . . any existing intensive animal feeding use,
. . . or any waste handling facility, . . . shall be separated
from such use by the minimum distance specified in T able
501.05 [(one-half mile in this case)].

It is clear from this language that single-family dwellings are
not allowed within specified distances of animal feeding and
waste handling facilities. A nd this prohibition is entirely consistent
with O toe County's stated intent for the creation of the
general agricultural district, "to preserve and protect land best
suited for agricultural uses."19

Notwithstanding the absolute prohibition set forth in the beginning
of § 501.03(9)(A), the second portion of § 501.03(9)(A)
provides that this absolute prohibition can be overcome, but
only if both parties are able to agree to a mutual impact easement.
However, if no agreement is reached, the prohibition
remains in effect.

The regulations at issue simply afford the owners of animal
feeding and waste handling facilities a limited opportunity to
waive a restriction created by O toe County, just as the ordinance
in Cusack Co.20 provided one-half of the property owners
with the power to waive the billboard restriction. A nd since the
property owners in Cusack Co. were not empowered to make
the law and force it upon others, because the billboard prohibition
remained in effect if they chose not to exercise their waiver
power, neither are owners of animal feeding and waste handling
facilities so empowered by the fact that O toe County's restriction
remains in effect if the owners choose not to exercise the
limited waiver power. In light of the foregoing discussion, we
conclude that the mutual impact easement language in O toe
County's zoning regulations is not an unconstitutional delegation
of legislative authority, and the district court erred in
concluding
otherwise.

In arguing to the contrary, Coffey relies on a 1907 opinion by
this court, State v. Withnell.21 In Withnell, a gas company applied
for a permit to construct a gas storage facility. T he application
complied with all of the regulations except for a requirement
that the gas company obtain the written consent of all the property
owners within 1,000 feet of the site of the proposed facility.

The application was denied because the gas company failed to
acquire the necessary consent. T he gas company challenged the
validity of the consent requirement, and this court agreed, concluding
that the ordinance, "in so far as it requires the written
consent of the property owners, is void."22
Withnell, however, is distinguishable from the present case.

In Withnell, this court concluded that the ordinance was not
intended to be prohibitory. It was an unreasonable exercise
of the police power because it involved delegating a balance
between an "indispensable" public utility and the risk to public
safety it represented, which we held to be undelegable.23 S uch
is not the case here. A nd in any event, to the extent our analysis
in Withnell is inconsistent with the later decisions of the U.S.
Supreme Court, the S upreme Court's exposition of the Due
Process Clause clearly controls.

Our conclusion that the regulation at issue is constitutional
is dispositive of this appeal, and therefore, we need not address
Coffey's assignments of error.

* * *

http://www.supremecourt.ne.gov/opinions/2008/january/jan11/s06-921.pdf