County of Knox v. The Highlands, L.L.C. in detail
By Margaret Rosso Grossman
In County of Knox v. The Highlands, L.L.C., the Illinois Appellate Court for the Third District held that Knox County had no statutory authority to use its Zoning Resolution to require The Highlands to secure a building permit for a hog operation. In resolving that issue, the court also decided that The Highlands' large-scale hog operation fit within the uses of land for "agricultural purposes" that are exempt from most county zoning regulation. In its 30 December 1998 opinion, the appellate court affirmed the summary judgment granted by the Circuit Court of Knox County to The Highlands and James R. and Patricia A. Baird (Highlands) in three related cases involving Highlands' large hog operation, connected with Murphy Family Farms of North Carolina.
The facts outlined in the court's opinion and the appellate briefs reflect a conflict between a large-scale hog confinement facility and Knox County and individual objectors concerned about the burdens that the animal wastes and odors would place on surrounding land and its occupants.
The Knox County Zoning Resolution required a conditional use permit for commercial feed lots and a construction permit for buildings. In December 1996, Highlands applied for a permit to construct six buildings, costing $2.25 million, that would be part of a hog-confinement operation on 120 acres of land zoned "F" Farming District. The Knox County Zoning Administrator issued the permit. But in March 1997, William and Nina Baird (owners of property within a mile of Highlands), later joined by other individuals, appealed issuance of the permit to the Knox County Zoning Board of Appeals.
After a Zoning Board hearing and an inconclusive vote, the Knox County State's Attorney, relying on Illinois Supreme Court precedent, concluded that the Board had rescinded the permit. Highlands was informed that the permit had been rescinded and that construction violated the County Zoning Resolution; nevertheless, construction of the buildings proceeded. Highlands sued to enjoin Knox County from enforcing its Zoning Resolution and for administrative review of the Zoning Board of Appeals decision. The County sued to enjoin Highlands' construction of the facility, asking also for a temporary restraining order. Individuals, including William and Nina Baird, filed a third case against Highlands.
The Knox County Circuit Court denied the County's request for a temporary restraining order against Highlands. The Fourth District Appellate Court affirmed the denial, because the County had failed to demonstrate immediate and irreparable harm. Highlands then moved for a summary judgment in all three cases. (A summary judgment motion alleges that no genuine issue of material fact exists and that the party asking for summary judgment is entitled to judgment as a matter of law.)
In October 1997, the Knox County Circuit Court granted Highlands' motions for summary judgment. Though the circuit court recognized legitimate concerns about the project, the court held that Knox County lacked authority under Illinois law to regulate or require permits with respect to land used for agricultural purposes. In addition, the court held that the County lacked authority to require a conditional use permit for Highlands' hog operation. Even if the operation were a commercial feedlot, it served an agricultural purpose, exempt from any permit requirement. Further, in any event, the permit issued by the Zoning Administrator had not been rescinded properly and thus remained in effect. After the summary judgment in its favor, Highlands dismissed the part of its complaint asking for administrative review.
In its December 1998 opinion in County of Knox v. The Highlands, L.L.C., the Third District Appellate Court affirmed the circuit court's summary judgment. Central to the court's opinion is its analysis of Knox County's right, under the Illinois Counties Code, to regulate a livestock facility. The Counties Code (55 ILCS 5/5-12001) gives counties authority to regulate and restrict the location and use of structures. But the statute says the those powers "shall not be exercised . . . to impose regulations or require permits with respect to land used for agricultural purposes," unless the land parcel involved is smaller than five acres. (An amendment, effective 1 January 1998, adds a broad definition of agricultural purposes, including "animal and poultry husbandry" and other agricultural activities.) Set-back lines can be imposed on agricultural buildings, and Highlands complied with those requirements. Knox County had argued that Highlands' confinement facility was commercial or industrial, rather than agricultural, and could thus be regulated under the Counties Code.
The appellate court relied on the Illinois Supreme Court's comprehensive Webster-dictionary definition of "agriculture" from a 1926 annexation case, which has been followed in more recent cases. The definition included "rearing and management of livestock." Applying that definition to Highlands' operation, the court concluded that "the rearing and raising of hogs, in any quantity, constitute an agricultural purpose under the recognized definition" from the 1926 Illinois Supreme Court case. Therefore, as a matter of law, Knox County had no authority under the Counties Code to regulate the hog operation.
The court also noted the existence of the Illinois Livestock Management Facilities Act (510 ILCS 77/1 - 77/999), enacted to maintain an economically viable livestock industry and protect the environment (77/5). The court commented that "[i]n light of the emergence of mega hog- and cattle-feeding operations such as those involved in these cases, the legislature appears to have continued to preempt agriculture from local zoning and reserved unto state government the uniform regulation of such facilities."
One judge dissented from the majority opinion in Knox County case, mainly on a procedural issue. He believed that the Zoning Board of Appeals decision should have been attacked only through administrative review. Because Highlands had dismissed its administrative review count, the administrative review count was not before the appellate court. Summary judgment was thus improper, because the court did not have the authority to decide the other counts. The dissenting judge also disagreed with the majority's conclusion that raising hogs "in any quantity" is an agricultural purpose as a matter of law, but believed that the Zoning Board of Appeals had jurisdiction to decide whether the operation was agricultural. The majority responded that the dissenter's reasoning placed form over substance; even if the court had ruled on the wrong counts, the operation would still be agricultural and thus free from county regulation. Moreover, according to the majority, because Knox County had no statutory authority to regulate Highlands, administrative review (the "exhaustion of administrative remedies") was not required.
The appellate court's decision is consonant with recent decisions in other agricultural states. For example, Iowa law provides an exemption from county zoning for farm buildings "primarily adapted . . . for use for agricultural purposes." The Iowa Supreme Court, in Kuehl v. Cass County, held that proposed hog confinement facilities for 4000 hogs on five acres were exempt from county zoning regulation. Similarly, Missouri limits the authority of townships to impose regulations or require permits for farm buildings or structures. In Premium Standard Farms v. Lincoln Township, the Supreme Court of Missouri held that the township had no authority to impose set-backs and bonding requirements on Premium's 96 hog barns and 12 waste lagoons constructed on about 3000 acres.
The majority's decision in County of Knox, which defines "agricultural purposes" broadly to include intensive livestock operations, means that counties cannot use their zoning authority to regulate or require permits for these operations. A similar statutory provision appears in the Townships Code, where zoning is permitted only after the township electors have authorized the township to zone and if no county zoning ordinance or resolution is in effect. (60 ILCS 1/110-5, 1/110-15) Though the decision in County of Knox did not apply to the Townships Code, the court's reasoning, if applied to a township, would seem to prevent township regulation of land used for agricultural purposes, too.
Though Illinois counties, according to the County of Knox opinion, have no power to zone livestock operations, other laws continue to govern livestock facilities. Of course, federal environmental laws apply. The Illinois Livestock Management Facilities Act establishes standards for set-backs, waste lagoons, waste management, and odor control. The Illinois Environmental Protection Act and its regulations continue to apply. Further, neighbors of livestock operations may have legal recourse under the common law. Nuisance suits, for example, can be filed if the operation constitutes an unreasonable interference with the use and enjoyment of other land in the area. The Illinois right-to-farm law (Farm Nuisance Suit Act, 740 ILCS 70/1-70/5) protects some operations against nuisance suits. It applies to farms that become a nuisance because of changed conditions in the surrounding area (for example, if land near the farm becomes residential) that occur after the farm has been operating for more than a year. Farms that operate negligently or improperly or that pollute water are not protected under the right-to-farm law.
The case of County of Knox v. The Highlands, L.L.C. bears watching for everyone concerned about the environmental and social effects of intensive livestock production.
Margaret Rosso Grossman is a professor of Agricultural Law at the University of Illinois at Urbana-Champaign.
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Court prohibits classifying large-scale hog farms as industry
Other Articles in Volume 1, Issue 1 - March, 1999:
Why an environmental policy newsletter?
Regulating land use: a legal perspective