Agenda - Planning Commission - 12/07/2017

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Zoning Bulletin October 25, 2017 I Volume 11 I Issue 20 Nicholas and Donnelle Hoffman (the "Hoffmans") owned a residence less than a half mile from Luebke's proposed hog facility. They chal- lenged the grant of the permit to Luebke. They argued that, among other things, the use was an "animal feeding operation" that required a vari- ance or a conditional use permit, with specific setbacks from other uses. They asked the PZA to revoke the building permit. The PZA refused to revoke the permit. The PZA maintained that the proposed hog facility was to house fewer than 1,000 "animal units" and therefore did not constitute an "animal feeding operation" necessitating a variance or conditional use permit with specific setbacks. She explained that the proposed hog confinement facility was a permitted use as a "farm" or "ranch" in the agricultural district under the County zoning ordinance because Luebke grew farm products on an area of greater than 25 acres. The zoning ordinance permitted a "farm" or "ranch" defined as "[a]n area of twenty[ -]five (25) acres or more which is used for growing usual farm products . . . and for the raising thereon of the usual . . . farm animals such as . . . hogs, and including the necessary accessory uses for raising, treating, and storing products raised on the premises." The Hoffmans applied for a writ of mandamus from the circuit court (i.e., an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion). The Hoffmans asked the court to compel the PZA to revoke the building permit. After a trial, the circuit court held that Luebke's hog facility was not a "farm" or a "ranch" and that it therefore did not fall under any of the permitted uses of land for which a building permit could be granted. The court pointed to an absence of evidence that Luebke used the land to grow grain or farm products in addition to the proposed use of feed- ing hogs. Nevertheless, the circuit court concluded that a writ of mandamus "could not be used to undo an already completed act" — since by that time the hog facility construction was complete. The Hoffmans appealed. The PZA also appealed, arguing that the court had erred in determining that the hog containment facility was not a permitted use under the ordinance. DECISION: Judgment of Circuit Court affirmed reversed in part, and affirmed in part. The Supreme Court of North Dakota held that Luebke's hog contain- ment facility was a permitted use as a "farm" or "ranch" under the ordinance. The court found that evidence, including Luebke's testimony and aerial photographs, did support a finding that Luebke grew farm products on the land. The court found that while the 10 acres used for the hog barn may not have involved cultivation, the hog barn was "none- theless a component of [a]n area of twenty five . . . acres or more' that © 2017 Thomson Reuters 11