PRESENTATION OF JERRY ORGAN
TO THE SALINE COUNTY STUDY
JUNE 19, 2000
(WITH ADDITIONAL COMMENTS)

Click here to see the addendum to this report

Mark invited me to provide an update on legislative and legal matters of interest to the Saline County Study Committee as a followup to my presentation in March 1999. I have set forth below the questions to which I was asked to respond followed by my responses (and any followup discussion that arose during the meeting).

1. Did the Missouri legislature pass any bills this year that have relevance to CAFO's and county land use issues?

RESPONSE: No.

2. What reflections do you have on the Linn County Health Ordinance case? Is it necessary to have a County Health Department to enact a health ordinance pursuant to section 192.300?

RESPONSE: Although the Western District Court of Appeals upheld the Linn County health ordinance in its entirety (as had the lower court), I still believe that the two courts erred in giving blanket approval to the ordinance. Much of the ordinance is entirely defensible as a valid exercise of the county's authority to make health rules under section 192.300. Because agriculture is exempt from zoning regulation, however, the portions of the health ordinance that look like zoning remain suspect. For example, setback distance portions of the health ordinance designed to address odors from CAFOs look more like a zoning regulation than a health regulation. Most county health ordinances regulate gaseous emissions by chemical concentration levels at property boundary lines--not by setbacks alone. A use of chemical concentrations at the boundary line is an approach to addressing the concerns related to odor that does not smack of "zoning," whereas as setback distances looks very much like zoning. Accordingly, setback provisions in a health ordinance remain subject to challenge, in spite of the Western District Court of Appeals' affirmance of the circuit court's decision upholding the Linn County Health Ordinance.

Notably, some of the other county health ordinances use setbacks to protect water supplies, not just to address odor issues. Using setbacks from water resources as a means of protecting the quality of the water resource would be much more defensible in a health ordinance than would using setbacks for odor, provided the setbacks are not so large as to completely preclude the location of any CAFOs within the county.

The variance language contained in some county health ordinances (allowing exceptions to the language of the ordinance if the ordinance would impose unnecessary hardship on a landowner) likewise raises issues suggesting a zoning basis for the ordinance rather than a health basis. If the regulations truly are health based, then one would expect that concerns about impacts on property values would be subservient to the concern about health. If the regulations contain the variance language because of concerns about the impact of the regulations on a landowner's legitimate expectations of use and enjoyment of her land, then the regulations again take on a "zoning" focus which may run afoul of the constraints on county zoning of agriculture.

With respect to the question whether county commissioners can pass a health ordinance without a county health department, the statute would not appear to require the existence of a health department. The statute states that a county commission or a county health board can promulgate and adopt orders, ordinances, rules or regulations. This would suggest that a county commission can do so with or without a health board or health department. Nonetheless, once the county passes the health ordinance, there has to be a way to implement and enforce the ordinance. Thus, although a health department does not appear to be a legal necessity, as a matter of practicalities, the implementation of the ordinance pretty much requires the creation of a health department.

In sum, given the Western District Court of Appeals' Linn County decision and the language of section 192.300, the Saline County Commission could enact a health ordinance much like the one Linn County has enacted and successfully defended. To do so, however, would be to risk the possibility of litigation on the ordinance generally or the setback provision specifically. Unless the County Commission is interested in the possibility of investing in litigation over its authority to enact such a health ordinance, it probably would be well advised to pursue a health ordinance that does not have the setback language relating to odor issues. Without the setback language, a health ordinance would be less likely to be challenged and would be easier to defend if it were challenged.

SUBSEQUENT DISCUSSION REGARDING THE HEALTH ORDINANCE ISSUES

Following this discussion of the county's authority to issue a health ordinance, LeAnn Haling asked whether a mediation board could be established to promote a "good neighbor policy" with some "teeth" if people did not comply.

RESPONSE: It would be possible to establish a mediation board to promote a "good neighbor policy," but it probably would not be possible to create a system with "teeth" without some ordinance set in place by the county government. This would be problematic because it likely would run afoul of the constraints on county zoning of agriculture.

Even a system without "teeth" could have some value, however. For example, it might be possible to set up a simple process whereby all current uses of land were to be accepted as valid, but any change in land use would require that the owner appear before a mediation board to discuss land use changes with neighbors to promote compatible land uses. If the discussions facilitated by the mediation board did not result in the parties reaching a voluntary solution, the affected neighbors would still have the right to file a nuisance action in court. Because all parties might desire to avoid the transaction costs associated with litigation, even this simple process likely would facilitate meaningful discussions and resolutions in many circumstances. This form of operation would require citizens trained as mediators, but would not necessarily require a big budget. However, it also does not deal with the health issue in any direct way, as landowners and their neighbors essentially would be working through issues on their own without necessarily addressing health issues in a focused and concerted manner.

3. Given the sunset language in section 640.755 (originally contained in HB1207), another question concerned what might happen with respect to regulation of CAFOs in the upcoming legislative session.

RESPONSE: The CAFO regulations imposed in 1996 by HB 1207 have a sunset clause that expires after this coming legislative session ("The provisions of this section shall terminate five years after June 25, 1996.") The exact scope of the sunset provision is unclear. The sunset provision may speak only to the section in which it is contained, as opposed to the entire regulatory structure reflected in HB 1207. If it only refers to the section in which it is contained, section 640.755, its impact would be to terminate the language of section 640.755 (1) & (2). Subsection (1) provides that rules promulgated under sections 640.700 to 640.755 will become effective only if "promulgated pursuant to the provisions of section 536.024," which calls for review by the joint committee on administrative rules. Subsection (2) provides that "[s]ections 640.700 to 640.755 shall be administered by the clean water commission pursuant to the provisions and requirements of chapter 644." Thus, if limited to the section itself, the sunset provision would terminate the language providing that the sections shall be administered by the clean water commission and providing for review by the joint committee on administrative rules. This might have limited impact. If the sunset language was intended to speak to the entire statutory/regulatory regime incorporated in HB 1207, sections 640.700 to 640.755, then the legislature would need to take action in the coming session if it wants to maintain the regulatory structure reflected in the existing statutory regime.

I have no meaningful predictions as to what might happen. The presence of corporate farming is a highly political issue and it is hard to know where the critical mass of opinion will end up. I believe the Missouri Farm Bureau will play a major role in helping give shape to anything that develops in the upcoming legislative session and the Missouri Association of Counties also could play a key role (if they desire to do so). Because of ongoing litigation between the State (the DNR and the Attorney General's office) and some of the CAFOs (not to mention various nuisance actions and citizen suits under the CWA and CAA) it is likely that the DNR, the Attorney General and various regulated entities all might decide that revising the legislative structure makes sense. But whether and how that happens remains to be seen.

SUBSEQUENT DISCUSSION REGARDING LEGISLATIVE AMENDMENTS.

Following this discussion of the "sunset" provision, Richard Clemens asked whether the legislature might consider amending the county zoning enabling statute to define CAFOs as industrial uses (subject to ongoing zoning regulation) rather than agricultural uses.

RESPONSE: That is certainly a possibility and would be consistent with what some other states have done. The legislation could be structured to continue the general prohibition on county zoning of agriculture, but allow zoning by counties of large CAFOs. (Of course, the likely result of such a change would be that CAFOs would remain just smaller than whatever regulatory threshold is established for "large CAFOs." Even so, in itself, such a result might be beneficial.) If the proposed legislative change provides that only large CAFOs would be subject to county zoning, it might be possible to generate a critical mass of parties (Missouri Farm Bureau, Missouri Association of Counties, etc.) who might come out on the same side of the issue.  Notably, if the activity conducted by CAFOs were redefined as industrial activity rather than agricultural activity, it also could have a positive impact on the property tax revenue for counties.

In the context of a discussion about what has happened in north Missouri with Premium Standard Farms, including the present enforcement actions against Premium Standard Farms by the State and the citizens group known as CLEAN, Bob Stewart noted that his desk was full of studies, and asked to whom do you listen? Which studies are the most accurate?

RESPONSE: I suggested one look for studies that talk about what happened, not what is expected to happen. One also should consider who funded or performed the study and consider what goals or interests the entity doing or funding the study might have been interested in advancing. Better yet, do your own study talking to a variety of people about the jobs provided and the overall impact on the community. Many times the jobs provided are for a new work force coming into the area with new cultural demands, such as an Hispanic population moving in and bringing with it new demands on school systems and service providers. In assessing the impact, you need to talk not only to the county commission and the folks who run the county, but also to the school district personnel and the medical personnel, etc.

4. How is Missouri's Right to Farm law affected by the U.S. Supreme Court ruling to deny certiorari (to refuse to hear the case) thereby allowing to stand the decision of the Iowa Supreme Court which overturned Iowa's Right to Farm law?

RESPONSE: Missouri's law remains intact and should not be impacted by the decision of the Iowa Supreme Court regarding Iowa’s Right to Farm law. Iowa's law was struck down because it allowed for the creation of agricultural areas exempt from nuisance suits. The Iowa Supreme Court viewed this as a "taking" without compensation in violation of the Constitution because the Iowa statute created a servitude (an easement) which burdened the property of landowners within the agricultural area. Because the Iowa Right to Farm law precludes anyone in an agricultural area from bringing a nuisance suit, everyone in the agricultural area essentially has had their property subjected to a servitude for the benefit of the people conducting agricultural operations in the area. Because the Missouri law does not prohibit nuisance suits completely (it simply limits the time in which they can be brought to the first year after commencement or expansion of agricultural operations) the Missouri statute does not result in a "taking" of property in the same way as the Iowa statute does.

SUBSEQUENT DISCUSSION

Following the discussion of the Iowa case, there were some questions raised regarding the use of covenants or conservation easements whereby a 501 (c) (3) non-profit organization is formed and development rights are either purchased by or donated to this organization.

RESPONSE: Private parties could develop a covenant regime to preclude themselves and their successors from engaging in certain activities on their land, but anyone who is not part of the regime would not be bound by the covenants. Conservation easements would be a possibility as well. Through careful evaluation of the GIS information on the website, individuals or a committee of folks could identify key parcels of land that may merit the greatest efforts for preservation (either to preclude incompatible land uses near residential areas or to promote protection of various natural resources, for example). Through contact with a national land trust, or through the creation of a local land trust, efforts could be made to solicit the owners of the critical parcels to purchase the development rights (or to have them donate the development rights in exchange for tax deductions). Because conservation easements preclude certain development opportunities, the widespread use of conservation easements ultimately would impact the property tax base over time (by reducing (or not increasing) the assessed values of property subject to the conservation easements).

SUBSEQUENT QUESTIONS FROM MARK BELWOOD

After the meeting on Monday, June 19, Mark Belwood forwarded some additional questions for my response.

1. Is there a restriction on regulating agriculture in the state constitution?

RESPONSE: I have not done an exhaustive search, but do not believe there is a prohibition on the regulation of agriculture in the state constitution. I base this conclusion on the extensive set of regulations that have been enacted by the state legislature and the clean water commission as exemplified by H.B. 1207 dealing with CAFOs. If the state constitution prohibited regulation of agriculture, I am pretty confident someone would have raised that point during the discussions of H.B. 1207.

2. Pettis County’s Health Ordinance has a "grandfather" clause that exempts CAFOs in existence as of June 7, 1996, from the terms and conditions of the ordinance. If the ordinance is addressing health concerns, doesn’t the "grandfather" provision seem inconsistent with the goal of protecting health?

RESPONSE: I agree with your assessment. This is much like the point I made about "variances" in some county health ordinances. Grandfather provisions (provisions that allow an existing nonconforming use to continue) and variance provisions are common in the zoning context. They make much less sense in a health ordinance context and would allow an inference that the health ordinance is a thinly veiled attempt to engage in zoning.

3. What is the difference between county zoning under sections 64.5xx and sections 64.8xx? Does the county commission have more control under one approach than the other? Can a county use a temporary planning commission and still operate under 64.8xx? Which of the county enabling alternative would you recommend?

RESPONSE: Having looked briefly, but somewhat closely at the language in 64.5xx and 64.8xx, it is not clear to me that there is any meaningful difference between the two approaches to county zoning. I do not see any difference in terms of the extent to which the county commission has authority over the planning commissions as each approach involves members appointed to the planning commission by the county commission as opposed to being elected to the planning commisison. See sections 64.520 and 64.805.

The temporary planning commission does appear to be limited to operating in lieu of the procedures set forth in sections 64.5xx. Because I believe the temporary planning commission process provides the greatest opportunity for public involvement that will generate a product (a comprehensive plan and zoning ordinance) that will be acceptable to the general public so that it will receive a favorable vote of the people, I would be in favor of following the temporary planning commission process described in section 64.725 and the approach encompassed within sections 64.5xx for administering a planning and zoning process in Saline County.

(If you have more specific comparisons to discuss I would be happy to respond to your request.)

Addendum
This addendum includes Professor Organ's written responses to questions he received from Study members after the preparation of the above written version of his June 19 2000 oral presentation.

Question submitted by Mark Belwood on July 19 2000 (via e-mail):

In 1996 Pettis County submitted a P&Z proposal to the voters pursuant to 64.725. Although in my reading of 64.725 it seems to only provide for submitting a master plan to the voters, nevertheless the ballot question required by the 64.725 is "Shall county planning AND ZONING as proposed by the county planning commission be adopted?" In Pettis County the temporary planning commission drew up not only a master plan but also zoning districts with associated regulations.

How much can a temporary planning commission do? If the temporary planning commission can draw up both a master plan and zoning ordinances, will the zoning ordinances go into effect along with the plan (assuming the voters approve)? Or will the zoning ordinances require a separate hearing procedure following the election prior to going into effect? Since most people seem to be more concerned about the regulations rather than the plan, it would seem to me most useful if the temporary planning commission could submit both a plan AND a zoning ordinance to the people.

RESPONSE BY JERRY ORGAN (via e-mail):

Mark -

-I understand how you would think of planning and zoning as separate things because technically they are (and the language of the statutes suggests that they may mean slightly different things). Nonetheless, for purposes of Missouri case law, the concepts have been largely merged. Thus, in State ex rel. Chiavola v. Village of Oakwood, 886 S.W.2d 74 (Mo.Ct.App. 1994), the Western District Court of Appeals held that the existence of separate comprehensive plan was not constitutional requirement; and that a zoning ordinance satisfied statutory requirement that zoning be according to comprehensive plan, despite lack of separate plan, given comprehensive scope of ordinance and nature of village as small suburb of large city.

-Accordingly, I would understand the temporary planning commission's authority to encompass not only the development of a plan, but also the development of a zoning ordinance to implement the plan, consistent with what was done in Pettis County. This also makes sense for the reason you describe. People are interested in the ordinance and want to vote on something more specific than a plan.

-If a plan and zoning ordinance receive voter approval, it would seem unnecessary to have the ordinance subsequently approved by the county commission (the elected representatives) because the voters already have spoken on the issue.

-Jerry

Jerry Organ's Comments on the First Draft of the SCS Recommendation (made via e-mail on August 6 2000):

-I have reviewed the Draft Recommendations to the Saline County Commission Regarding Land Use and Future Development in Saline County from the Citizen Steering Committee of the Saline County Study.

-I have two sets of comments. One set focuses on the question of a county health ordinance. The other set focuses on the voluntary good neighbor policy.

-First, with respect to the Voluntary Good Neighbor Policy, I think the concept is wonderful, but I think the implementation is too limited in some respects and somewhat cumbersome in other respects.

-It strikes me that the Good Neighbor Policy may be too limited because, as I understand it, the Good Neighbor Policy is intended to operate only with respect to uses which are exempted from county zoning authority, such as agricultural uses. Why limit it to just those uses? If the purpose is to promote "good neighborliness," why not do it more generally, by describing a broader set of relatively significant changes in land use that would be appropriate for voluntary submission to the process described in the Good Neighbor Policy in an effort to promote and preserve "good neighborliness."

-It strikes me that the Good Neighbor Policy also may be somewhat cumbersome, in that it presently calls for 11 "boards of equalization" (one for each township) consisting of 3 people each. That means 33 people in the county would be involved in being trained to help implement this process. That strikes me as too many people to assure appropriate training and consistently productive experiences for all involved. First, the "boards" probably should be described as "mediation panels" rather than "boards of equalization" -- a term generally reserved for reviewing challenges to property tax assessments. Second, while I think it is laudable to promote decentralized, local decision-making (which your process would do by having a board in each township), that decentralization requires a greater commitment of volunteer resources (because so many more volunteers are required) and may actually create an unintended problem. Mediators generally are "neutral" observers. Having people from the local township (who may have an interest in how a dispute gets resolved) may make people less likely to participate voluntarily in the process.

-As an alternative, what if a panel of up to 11 trained mediators were recruited from as many of the townships as possible. Each mediator could receive mediation training (from the Center for the Study of Dispute Resolution here at the Law School, for example). Each mediator also could receive training regarding the land use vision reflected in the County Master Plan and the general structure and purpose of the county land use ordinance. This would reduce significantly the volunteers necessary to implement a Good Neighbor Policy. When a change in land use is being contemplated, parties would be encouraged to submit any disputes relating to changes in land use to mediation, using one of the mediators from the panel (based on the mutual agreement of the parties). (The mediation process seems to work better with one mediator rather than a panel of mediators. Moreover, the parties may be more likely to engage and abide by the process if they feel they had ownership of the decision to select the mediator.)

-Notably, while this set of suggestions would make the Good Neighbor Policy more widely applicable, it also should make it generally easier to implement (because of the need for fewer volunteers) and possibly more likely to be used (because the parties would be selecting their own mediator from a panel of mediators trained by the county) rather than using the "board" identified for their township.

-Second, although I believe the Good Neighbor Policy has a great deal of merit, particularly if revised to reflect some of the suggestions set forth above, I don't think the Good Neighbor Policy and the idea of a county health ordinance need to be viewed as alternatives. The Draft Recommendations seem to suggest that the County should not consider a county health ordinance until it finds out whether a master plan is approved by the voters and/or whether the Good Neighbor Policy has been ineffective. I don't know that the idea of a county health ordinance needs to be deferred until you determine whether the Good Neighbor Policy has been effective.

-You are correct to describe me as having reservations about the "zoning" aspects of the Linn County health ordinance (and other county health ordinances) -- specifically, the language providing for "buffer zones" between CAFOs and residences or schools. I think those provisions are disguised zoning and ultimately will be found to be unenforceable if the Missouri Supreme Court speaks to the issue. I do not have a problem with the other aspects of the Linn County health ordinance (and other county health ordinances), however. Specifically, concentration limits at property boundaries for chemicals of concern strike me as entirely legitimate exercises of a county's authority to regulate to protect health. Moreover, buffer zones designed to protect water resources that provide recreational and other uses also strikes me as being within the county's authority to regulate to protect health. Accordingly, I believe a county health ordinance is very defendible in court, particularly if it is structured to eliminate some of the more problematic provisions of the Linn County health ordinance.

-Indeed, one of the concerns I expressed about a health ordinance dealt with the risk of litigation. I indicated that enacting a health ordinance with the "buffer zone" language of the Linn County ordinance might invite litigation over the county's authority. I also observed that creating such a litigation risk is arguably unnecessary, given that the county should be able to adequately protect its citizens through concentration limits at property boundaries (much more easily defensible) as opposed to arbitrarily established setbacks from residences (much more difficult to defend).

-In the context of the Draft Recommendations, however, the timing of the enactment of a health ordinance also implicates litigation risks. Were the county to enact a health ordinance now (or in the near future), before many (if any) landowners in the county are engaged in CAFO activity that would be subject to regulation under such a health ordinance, then property owners can prepare their develop plans with an understanding of the scope of regulation to which they would be subjecting themselves. Although impacted landowners still may decide to challenge such regulations if it turns out that the regulations significantly impair the landowners ability to generate a reasonable return on their property, such landowners are much more likely to challenge such regulations if the landowners have made investments in the absence of such regulation and then are asked to invest more to comply with such regulations. Accordingly, I think delaying the enactment of an appropriately drafted health ordinance actually may create more difficulties (in terms or risk of litigation) than developing a health ordinance in the near future to guide how parties decide to develop their agricultural properties.

-In sum, by developing a health ordinance in the near future (before significant investment occurs in a relatively unregulated environment) and by focusing the health ordinance on health issues (excluding from the health ordinance the type of "zoning" language from the Linn County health ordinance that I have described as questionable), Saline County probably could gain some assurance that agricultural development would occur in a more appropriate manner while minimizing the risk that its efforts to regulate such activity through a health ordinance would result in litigation.

-Having said that, I can well appreciate why Saline County might want to wait until the Missouri Department of Health has completed its study of the health impact of CAFOs so that it could incorporate such information into any health ordinance it might decide to enact.

-With respect to your request regarding Saline County Ordinance No. 97.1, I do not view the language of section 640.710 as a grant of authority for counties to do anything. Accordingly, I don't think Saline County had (or has) any authority to enact an ordinance pursuant to the language of 640.710. It has to do it under its zoning authority (quite limited with respect to agriculture) or its health authority. (Moreover, structurally, I would not use 97.1 alone as a basis for a new health ordinance. I would look through the other county health ordinances to pick out the best and most appropriate provisions for integration within a county health ordinance.)

-I realize that is a lot to digest. If anyone has specific questions or concerns, I would be happy to try to respond to them in as timely a manner as possible. Good luck coming up with a final set of recommendations.

Jerry Organ
Associate Professor of Law
573-882-2825
organj@missouri.edu