Coffey v. County of Otoe

• Court: Nebraska Supreme Court
• Writing for the Court: Gerrard
• Citation: Coffey v. County of Otoe, 743 N.W.2d 632, 274 Neb. 796 (Neb. 2008)
• Decision Date: 11 January 2008
• Docket Number: No. S-06-921.,S-06-921.
• Parties: Larry COFFEY, appellant and cross-appellee, v. COUNTY OF OTOE, Nebraska, and the Board of Adjustment of Otoe County, Nebraska, appellees and cross-appellants, and Kent and Sue Kreifels, intervenors-appellees and cross-appellants.

743 N.W.2d 632

274 Neb. 796

Larry COFFEY, appellant and cross-appellee, v. COUNTY OF OTOE, Nebraska, and the Board of Adjustment of Otoe County, Nebraska, appellees and cross-appellants, and Kent and Sue Kreifels, intervenors-appellees and cross-appellants.

No. S-06-921.

Supreme Court of Nebraska.

January 11, 2008.

William G. Blake, of Pierson, Fitchett, Hunzeker, Blake & Katt, Lincoln, for appellant.

Jeffrey J. Funke, Otoe County Attorney, and David J. Partsch, Nebraska City, for appellees County of Otoe and Board of Adjustment of Otoe County.

Joseph F. Bachmann and Shawn P. Dontigney, of Perry, Guthery, Haase & Gessford, P.C., L.L.O., Lincoln, for appellees Kent and Sue Kreifels.

HEAVICAN, C.J., WRIGHT, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

GERRARD, J.

NATURE OF CASE

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. The 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 Kreifels began operating a hog confinement facility on his property in Otoe County, Nebraska, 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. On 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, Otoe 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 Otoe County. At 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 April 9, 2002, and were later amended on September 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 Kreifels' and Coffey's properties are located in the "General Agricultural District." The following regulations, designed to promote and facilitate agriculture, are relevant to this case:

501.01 INTENT: The 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. The 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. Single-Family dwellings . . . provided such dwellings comply with all of the following conditions.

A. Such 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 Table 501.05, MINIMUM SEPARATION DISTANCES FOR CONFINED AND 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 Otoe 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 Otoe County register of deeds a subdivision plat dividing his property into five tracts. On March 4, 2003, the zoning administrator for Otoe County sent Coffey's real estate agent a copy of the Otoe 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 Ray 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. The agreement also provided that the sale of the land was subject to the acquisition of a building permit. On December 2, Coffey, through his attorney, prepared an impact easement and sent it to Kreifels. The impact easement was attached to a letter requesting that Kreifels sign the impact easement and return it to Coffey's attorney within 7 days. Kreifels 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 Otoe County Planning Commission to allow residential construction on his property. Following a hearing, the Otoe County Planning Commission denied Coffey's request on February 17, 2005. Coffey then applied to the Otoe County Board of Adjustment for a variance from the application of the zoning regulations. On April 21, the Otoe County Board of Adjustment denied Coffey's request for a variance. The present action was then filed in the district court for Otoe County.

In his complaint, Coffey appealed the Otoe County Board 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. Kreifels 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 Board of Adjustment was not supported by the evidence, or was arbitrary and unreasonable, or clearly wrong. The 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...