Feedlots and Land-Use Conflict

ABSTRACT: Minnesota conducted a Generic Environmental Impact Statement (GEIS) on animal agriculture. Alternatives to optimize livestock production were examined, which protect public health, social stability, economic viability and environmental quality. One component of the GEIS was a study of feedlot land use conflicts. This paper provides information on the history and current situation of feedlots in Minnesota. It examines sources of conflict and a number of conflict resolution methods. The paper offers a multifactor index which quantifies and predicts conflicts associated with feedlots. The paper looks at several zoning and mitigation tools, including an odor setback predictive model called OFFSET.

The material for this presentation is based on the Animal Agriculture Generic Environmental Impact Statement (GEIS) Technical Work Paper (TWP) on Land Use Conflicts and Regulation. The TWP can be referenced at the Minnesota Planning homepage http://www.mnplan.state.mn.us/eqb/geis/2000/proposals.html a t the link Land Use and Conflict Resolution

This document provides additional depth beyond the presentation material on a number of key areas, especially land use conflicts and demographic information. Distribution and size of livestock operations in Minnesota has changed dramatically in the last twenty years. These changes have resulted in ripple effects throughout the entire state. The TWP also contains a large quantity of data and many useful interpretive maps. Readers are directed to explore this resource for detailed information on these topics.

The format of this paper is based on the study questions for the Land Use topic contained in the Scoping Document, which can also be found at the website. This topic overlaps with the Role of Government and Economics on many common issues. As stated in the Scoping Document, the Land Use topic addresses potential conflicts caused by the proximity of livestock raising and non-farm uses of land such as housing development and the recreational use of resources. It also addresses how these conflicts can be potentially handled with land use planning and zoning.

RECENT TRENDS IN AGRICULTURE, DEMOGRAPHICS AND LAND USE

Animal agriculture has changed significantly over the past two decades in Minnesota. Conflict between feedlot operators and neighbors has accompanied this change. The first step in understanding conflict over feedlots is to understand the context in which the conflict takes place. We need to understand changes that have occurred in rural settlement patterns, the density and concentration of animals, and the economic structure of farming. Using existing data from the Office of the State Demographer and the United States Department of Agriculture (USDA) Census of Agriculture, the land use team compiled trend data for a number of agricultural production, demographic and land use variables for the period 1982 through 1997.

Demographically, while there was a 15% increase in total population statewide, there was a 2% decrease in rural population and a 33% decrease in farm population; however, there was a 3% increase in rural non-farm population. Thirty counties saw an increase in rural population. Rural population includes people residing outside of incorporated places greater than 2,500 population. Counties with the largest gains in actual numbers of rural residents were counties with large gains in rural non-farm population. Farm population fell everywhere in the State from 1982 to 1997, with the exception of Itasca County. Rural non-farm population mainly fell in agricultural areas, and increased in the non-agricultural areas. All counties lost farms between 1982 and 1997, with the exception of Itasca and Ramsey counties which had minute increases. Central Minnesota and the Red River Valley in northwest Minnesota had the largest percentage decreases. All counties saw a decline in dairy farms per total farms from 1982 to 1997. Outside of the seven-county metro area, average farm size increased in all counties except Cook between 1982 and 1997. Some of the counties that gained the most in average farm size were also those that lost the highest percentage of farms between 1982 and 1997.

Dairy and beef farms overlap geographically in a band from central to southeast Minnesota. There is some geographic overlap of counties between beef farms and hog farms in southwest Minnesota. However, there is little geographic overlap between hog farms and dairy farms. Beef farms and beef cattle are more widespread throughout the State than are hog farms and hogs and dairy farms and dairy cattle.

Looking specifically at livestock, statewide there were 0.14 hog farms per 1,000 acres in 1997, a decrease of 63.9% from 1982. However, during the same time period, hog numbers increased by 27.9%, to 106.03 hogs per 1,000 acres in 1997. This implies that the number of hogs per hog farm increased between 1982 and 1997. Statewide there were 0.18 dairy farms and 20.82 dairy cows per 1,000 acres in 1997, decreasing 60.3% and 35.5% respectively from 1982. This implies that on average the number of cows per dairy farm increased between 1982 and 1997. In 1997 there were 0.39 beef farms and 23.56 beef cattle per 1,000 acres statewide. These numbers were both down by 22.3% from 1982.

Over the last fifteen years the poultry industry in Minnesota has seen a tremendous consolidation. The number of animals in inventory has remained stable from 1982 to 1997 while the number of farms with poultry has decreased. A few counties produce the majority of products. Four counties (Kandiyohi, Meeker, Stearns and Todd) produced nearly 50% of all turkeys sold in Minnesota. Six counties (Stearns, Morrison, Cottonwood, Benton, Douglas and Fillmore) produced nearly ninety percent of all broilers sold in Minnesota in 1997.

Scoping Question 1: What are the current land use conflicts associated with animal agriculture in Minnesota including conflicts with the use of resources for recreation and tourism and land for housing and urban development?

Land use conflicts related to animal agriculture are a microcosm of the broader social, economic, environmental and legal values influencing all decisions about the use of land. Virtually every land use conflict can be framed in terms of differing value systems, and/or the weight given to a particular value. The fact that land can be simultaneously valued as a commodity, natural resource, habitat, cultural setting and aesthetic amenity complicates the land use decision-making picture. Any land use change can affect any one of these values and result in community conflict over that use.

Rural land use conflicts existed long before the introduction of modern animal feeding operations. Land use conflicts in rural areas have often occurred between agriculture and competing economic uses of the land. Traditional, rural natural resource-based land uses - e.g., farming, ranching, forestry, mining, fisheries - now compete with other economic activities, especially those devoted to tourism and outdoor recreational land uses.

Heightened concern over environmental quality issues has engendered conflicts related to agricultural impacts on surface and groundwater resources and wildlife habitat. The human health effects of many agricultural practices/land uses have become a growing concern for many farm and non-farm rural residents.

Non-farmers are attracted to the countryside by a perception of a cleaner, aesthetically more pleasing environment than in a city or suburb. They may also be drawn by cheaper land and the potential to build a large house. Often, non-farm newcomers are able to commute to jobs in suburbs and even cities. In this sense, they are trying to have the best of both worlds: a house in the country and a high-paying job elsewhere. It is common for newcomers to move to the countryside before they understand what life in the country and nearby agriculture are all about.

The Land Use TWP analysis used information from MPCA complaint records from June 1996 to March 2001 and newspaper articles in the two state-wide newspapers (Pioneer Press and Star Tribune) for the period January 1, 1990 to December 31, 2000. All of these sources of data are imperfect. There are questions about the systematic collection and validity of each type of complaint data. Also, the documented complaints surely under-represent the number of actual conflicts that exist: for every conflict that is reported or noticed and documented, there are likely many more conflicts that exist but are never reported to or noticed by a third party; or even if they are reported or noticed, many may not be documented. Because of the imperfections in the complaint data, a statistical analysis of the complaints was not conducted. Instead, the complaints were evaluated on a gross level to observe if there are locations that are "hot spots" for complaints and for other patterns apparent in the data. Additional information on conflict associated with feedlots is presented in the chapter and TWP on Social & Community Impacts.

The following observations were made:

An overwhelming percentage of reported complaints in Minnesota are odor based. A few counties appeared consistently as the locations for complaints.
A total of 912 complaints about odors from feedlot operations in Minnesota counties were reported to the MPCA between June 1996 and September 2000. Three counties accounted for nearly 46 percent of the total complaints.
Renville County registered the most complaints with 167 (18%), followed by Nicollet County which had 150 complaints (14%), and Carver County with 100 complaints (11%).
The newspaper analysis appears to support the earlier finding based on the MPCA complaint data of Renville County as a "hot spot’ of feedlot conflicts.
The TWP noted that both Renville and Nicollet counties saw dramatic increases in numbers of hogs per acre between 1982 and 1997.
By species, hogs were the source of 65% of MPCA complaint records and 50% of the newspaper accounts. Complaints from swine operations outnumbered those from other types of operations in all but six counties registering at least five complaints during the period.
Odor was the cause of most of the MPCA complaint records; interestingly, newspaper accounts focused more on manure spills than on odors (54% to 23%).

Odor complaints are an excellent indicator of feedlot land use conflicts. Conflict often appears to involve expanding or changing livestock operations interacting with expanding suburban or rural non-farm populations. To supplement the meager available data on conflicts, the land use team developed a set of indices to predict the potential for conflict in the rural landscape. The use of the indices is forward looking. The indices predict a certain level of conflict based on assumptions about the causes of conflict. For instance, the indices could be used to evaluate the effectiveness of new land use regulations in reducing conflict by comparing actual and predicted conflict from the point in time the land use regulation was implemented. The conflict indices are described in detail in the Land Use TWP, starting on page 34.

NUISANCE AND THE RIGHT TO FARM

An outgrowth of the concern over farmland loss to urbanization and the rising number of complaints by non-farm neighbors against farm operators was a wave of state- enacted "right-to-farm" laws in the 1980s. These laws were designed to protect farmers engaged in normal agricultural activities. Several manuals and reports have been published to assist producers in dealing with potential conflicts with non-farm neighbors. Some have questioned the legal basis of these laws, asserting that they have radically restructured common law property rights.

The Minnesota law on nuisance (Minnesota Statutes, Section 561.19) finds that an agricultural operation is not considered a private or public nuisance if the operation has been operating for two or more years and was not a nuisance at its start of operation, when the operation expanded the number of livestock by at least twenty-five percent, or when there was a distinct change in the operation, such as from dairy to hog production. However, the farm operation may be considered a nuisance if conditions or injury result from practices that are not normal farming practices or are in violation of state, federal, or local laws, rules, permits, and ordinances.

It has been suggested that the rationale for most of these laws - urban expansion into agricultural lands - may have been based on faulty assumptions. Size and type of farm and the community characteristics of the neighboring areas are more predictive of nuisance complaints and concerns than the actual population density or rate of population growth. Larger operations, livestock producers and farms located near areas that can be characterized as "suburban" are more vulnerable to nuisance complaints

September of 1998, the Iowa Supreme Court ruled the Iowa Right-to-Farm Law unconstitutional. In February of 1999, the United States Supreme Court refused to hear the Iowa case on appeal. As a result, it is likely that there will be challenges to the constitutionality of right-to-farm laws in other states.

Neighbor relations were also considered by Palmer and Bewley (1999) in their examination of Wisconsin dairy operator expansions, which is also cited in the Land Use TWP. They found that between 1994 and 1998 the average herd size of those who expanded their operations had doubled. And while most (72%) expanded by adding on to existing facilities, those who were most satisfied with their expansion built all new facilities. However, producers who did not change their type of dairy facility had significantly better relations with neighbors than those with all new facilities. In other words, while building all new facilities provided the greatest producer perceived benefit, adding on to existing facilities resulted in greater neighbor benefits.

In addition, producers with larger herd sizes were more satisfied with all aspects of their operations - personal satisfaction, personal health, household income, family relationships, time away from the farm, and overall quality of life - with one exception. Those with smaller herds were more satisfied with their neighborhood relationships.

SOURCES OF LAND USE CONFLICT

Land use conflicts surrounding animal agriculture are framed in terms of the differing value systems of people. People value land as a commodity, a natural resource, habitat, a cultural setting, and an aesthetic amenity.

Local land use decision-making is the forum used by the community to resolve conflicts such as those surrounding animal agriculture. A typical land use decision-making process includes the following steps: the issue/conflict is perceived; the issue/conflict is defined; factual/scientific information is obtained and reviewed; stakeholders provide anecdotal and perceptual data to elected officials and staff; a solution is crafted and reviewed by stakeholders; and a solution is adopted.

This report addresses how the conflict is perceived and defined, and the solutions that are crafted and adopted. Other literature reviews presented some of the factual/scientific data that is used. The sources of land use conflict identified in the literature include:

environmental concerns (odor, air pollution, water contamination, manure)
human health concerns,
nuisances (both agricultural use vs. non-farm rural uses, and small vs. large agricultural uses),
differing rural aesthetics,
threat to traditional rural culture,
the use of land for agriculture vs. the use for tourism/recreation,
fear of property value reduction, and
fear of rural "brownfields" (contaminated sites that can not be reused).

Scoping Question 2: What zoning and land use planning strategies exist, to what extent are they in place in Minnesota, and are they effective in:

addressing the identified land use conflicts;
promoting citizen participation;
identifying and promoting the best uses of the land;
addressing development pressures in agricultural areas;
reducing negative environmental, economic, health and social impacts of animal agriculture; and
balancing property rights

Most of the available literature explains the planning and zoning process as applied to all agricultural land, but because many of the goals and conflicts over agricultural land are the same for animal agriculture, some of the strategies can be applied to animal agriculture. Documented strategies in the literature include comprehensive planning, zoning, local right-to-farm ordinances, consistent enforcement of local regulatory strategies, land preservation programs, and feedlot permit programs.

LAND USE REGULATION OF ANIMAL AGRICULTURE

The issues involved in the land use regulation of siting and operation of concentrated animal feeding operations are many, complex, and interrelated. In general, there are two main issues:

regulating the operation of new and existing feedlots, and
regulating the location and design of new feedlots.

Health and environmental regulations generally emerge from the state or federal government. Local land use planning and zoning are generally directed at regulating the location and design of new feedlots. The Role of Government TWP in the GEIS addresses the question of the implications of regulating animal agriculture at different levels of government. This report briefly addresses the authority of local land use control, what current land use strategies are in use and their effectiveness.

Legal issues first and foremost concern the legal authority that local governments, including townships and counties, have to regulate feedlots. The legal basis of local authority for planning and zoning are discussed in the Role of Government TWP, however, a brief discussion is warranted here. The Tenth Amendment to the United States Constitution allows state governments the power to exercise their police power to protect public health, safety, and welfare. Local governments are the creation of the state government. The state government, through state zoning and planning enabling legislation, decides what powers of land use control to delegate to the local governments.

Unlike other states, such as Iowa, Minnesota does allow local governments to use zoning to regulate agriculture in general, and specifically feedlots (Minnesota Statutes, Section 394.25 (counties) and Section 462 (townships)). Also, local governments may enact environmental and health regulations that prevent private property owners from creating public nuisances.

Another issue is the effect of zoning and other regulations on private property rights. The Fifth Amendment to the Constitution states that a government cannot take private property without paying "just compensation." A regulation is not a physical taking of property in the manner of a condemnation by use of eminent domain powers. Zoning and other regulations, however, can become a taking if they are unreasonable and result in taking all of the economic use of a property.

Obviously, a tension occurs between the Fifth Amendment and the Tenth Amendments. State and federal courts continue to vary in their interpretations of these two amendments in land use cases. Nonetheless, the regulation of feedlots appears to have strong support as being in the interest of the public health and safety.

Finally, the Fourteenth Amendment to the Constitution requires due process and equal protection under the law. This means that governments must respond in a timely and procedurally correct manner for land use permits and decisions, and that all citizens must be treated the same. Governments cannot make arbitrary and capricious decisions. For example, this means that a government could not delay indefinitely a decision on whether to issue a building permit for a feedlot. In Minnesota, however, a local government (in this case a Township) may impose a moratorium on the permitting of new feedlots while drafting new zoning and environmental regulations (Duncanson v. Board of Supervisors (Minn. App. 1996)).

A report by the Minnesota Department of Agriculture summarizes the county ordinances in effect in Minnesota, including setbacks and separation distances, size limitations, thresholds for conditional use permits, minimum acreage requirements, and manure application setbacks. There is virtually no literature assessing the effectiveness of various land use strategies that are used to address conflicts over animal agriculture. Attachment 5 of the Land Use TWP includes a comparison of the referenced MDA ordinance survey with setback distances generated by the University of Minnesota OFFSET model for calculating setback distances.

In order to quantify the causes and characteristics of conflict associated with animal agriculture, the land use team chose to assemble and analyze data on documented complaints. Documented complaints relate to conflict in that they indicate that a conflict has risen to the point of being reported to or noticed by a third party.

TECHNIQUES FOR MANAGING CONFLICTS OVER FEEDLOTS

Although farms are attractive to look at, there may be some inconveniences and even hazards in living next to a large feedlot. A number of innovative techniques can, and in many cases are, being used to minimize conflicts between feedlot operators and both farming and non-farm neighbors. The Land Use TWP team reviewed conflict management techniques used by local governments both inside and outside of Minnesota, as described below.

OFFSET: A MODEL TO CALCULATE SETBACK DISTANCES

The Odor from Feedlots Setback Estimation Tool (OFFSET) has been developed by the University of Minnesota Biosystems and Agricultural Engineering Department. OFFSET considers specie, facility type, facility size, manure storage type and size, and odor control technologies to estimate the necessary separation distance for livestock feedlots that is required to achieve an "annoyance free status" at varying degrees of frequency. Distances are estimated for sites with a prevailing "downwind" location. Necessary separation distances for non-downwind locations will be over-estimated with this tool.

The Land Use TWP (page 56) presents sample separation distance calculations using OFFSET for seven swine and two dairy facilities of various types and sizes. The results showed that setback distances suggested by OFFSET range from 0.03 to 0.3 miles for 91% annoyance free levels, from 0.05 to 0.41 miles for 94% annoyance free levels, from 0.1 to 0.75 miles for 97% annoyance free levels, and from 0.28 to 1.92 miles for 99% annoyance free levels. The TWP also compares the results to setback requirements in 43 county ordinances compiled by the MN Department of Agriculture. According to this analysis, setback distances in existing county ordinances are fairly effective at attaining a 94% annoyance free level for most site types.

In land use planning for livestock ordinances, there are three variables communities should consider:

What level of annoyance is acceptable? This may result in unreasonable expectation for people living in an agricultural production zone if t he agreed annoyance level in effect bans livestock production from the area.
What setback distance is feasible in the planning area? For an area that is sparsely populated, a setback distance of 2 miles may be feasible, in which case the community would not have to worry about annoyance free levels or total odor emission factors, since all livestock site types would meet a 99% annoyance free level. However, for most areas this large setback distance is not realistic – there would be no locations that have so much land available for siting. In most agricultural areas, a setback distance of 0.5 miles or less would probably be more realistic. However, the shorter the setback distance, the more difficult it becomes to attain annoyance free levels (i.e., the potential for odor annoyance increases).
What total odor emission factors are reasonable for livestock sites? Some site types have very high total odor emission factors, and others have very low factors. For some site types, the total odor emission factor can be reduced by using odor mitigation technologies. Since the total odor emission factor affects what annoyance free level can be attained at what setback distance, a community will want to determine a level that is attainable by livestock facilities while at the same time encouraging management that mitigates odor emissions.

These three variables must be balanced to meet community goals for both controlling odor nuisance and allowing livestock production in the area. Using OFFSET to explore various scenarios of the three variables could help all community members understand more fully the potential impacts of their decisions on themselves and other community members, and to devise a plan that can more fully meet all of their goals simultaneously.

NUISANCE DISCLAIMER

This disclaimer alerts potential property buyers (often non-farmers) who are considering moving to an agricultural zoning district that farming is the preferred use in the agricultural zone, and that residents in the zone may be subject to noise, dust, odors, and other impacts from nearby farming operations. These impacts may cause discomfort or injury, and may reduce the enjoyment of one's property.

A nuisance disclaimer does not prohibit a new resident within the agricultural zone from filing a nuisance suit against a farm operation. However, the plaintiff will have been forewarned about the discomfort, and will have no legal standing unless a violation of a state or federal law is alleged. The disclaimer is meant to provide fair warning of potential conflicts, and thus discourage nuisance suits. It is important to keep in mind that agricultural zoning disclaimers refer to normal and legal farming operations. Farming practices that violate state or federal laws, such as water pollution from feedlot run-off, are grounds for lawsuits by non-farm neighbors. The nuisance disclaimer is similar to the Land Use Notification form used by Morrison County, Minnesota. A landowner applying for a permit must sign and record the form with the county recorder.

The form educates the landowner on the following points:

Their land is in an agricultural district and feedlots and other agricultural uses are permitted.
Feedlots and other agricultural uses may adversely affect the use or value of their land.
Agricultural uses are given preference over other uses.

A copy of the Morrison County land use notification form is included in Attachment 6 to the Land Use TWP. Local governments could also require developers to notify potential purchasers, in writing, if a feedlot is within a certain distance from the subdivision. Likewise, there could be a seller/realtor notification requirement that would require sellers of any property to disclose to potential purchasers that feedlot is within a certain distance.

DETERRENT TO FRIVOLOUS LAW SUITS.

Michigan has gone a step further in defending farmers against nuisance suits. Michigan law requires a plaintiff who loses a nuisance suit against a farmer to pay the farmer's legal expenses. The law is aimed at discouraging frivolous nuisance suits that could pose financial hardships on farmers.

RESOURCE MANAGEMENT EASEMENTS.

A resource management easement may be required by the local government as part of granting a permit to build a non-farm residence in an agricultural zoning district. The resource management easement is a binding contract between the new resident and the local government in which the new resident agrees to give up rights to file a nuisance suit against farmers who are conducting normal or standard farming practices.

As in the case of the nuisance disclaimer, the resource management easement refers to normal and legal farming operations. Farming practices that violate state or federal laws, such as water pollution from feedlot run-off, are grounds for lawsuits by non-farm neighbors.

The resource easement is recorded at the county courthouse and becomes part of the new resident's deed, before a building permit is issued and before any construction begins. Because easements run with the land, future buyers of the new resident's property will be subject to the conditions of the resource management easement. A sample resource management easement is included in Attachment 6 to the Land Use TWP.

SPECIALIZED AGRICULTURAL ZONES.

Agriculture as practiced today is often an industrial process involving the use of mechanical equipment, chemicals and heavy machinery. It is common for local governments to employ more than one type of industrial zone, based on the different types of manufacturing and the potential for spillovers of noise, dust, glare, and chemicals from one property to another. Light manufacturing might be put in an M-1 zone, whereas more intensive, heavy manufacturing would be put in an M-2 zone.

Similarly, a local government could use different agricultural zoning districts depending on the intensity of livestock concentrations. For example, in 1999, Elkhart County, Indiana pioneered the use of agricultural zones to separate feedlots from other farming operations. The county amended its ordinances to add three agricultural zoning districts:

The A-3 Farmland Preservation District;
The A-4 Confined Feeding Protection District; and
The A-5 Intensive Livestock Operation District.

A copy of the Elkhart County districts are included in Attachment 6 to the TWP. The details of each zone are explained in the Land Use TWP beginning on page 65.

LARGE MINIMUM LOT SIZES IN AGRICULTURAL ZONES.

Agricultural zones with large minimum lot sizes, such as 160 acres (quarter section), will be better able to site new feedlots or accommodate the expansion of livestock operations if the feedlot is located in the center of the parcel. For example, the OFFSET setback estimation tool discussed elsewhere suggests that a 160-acre minimum lot size can provide a setback distance that can provide at least a 91 percent comfort level for neighbors of most feedlot operations. In Minnesota, Blue Earth County and Waseca County already have 160-acre minimum lot sizes in their agricultural zones.

A BAN ON CERTAIN TECHNOLOGIES OR FEEDLOT SET-UPS.

Certain feedlot technologies or barn arrangements may be preferable to others for controlling spillovers of odors onto neighboring properties. For example, in North Carolina, Smithfield Foods, the world's largest hog producer, has agreed to remove manure lagoons on the 276 farms it owns within five years. A county agricultural zoning ordinance could identify lagoons as a prohibited technology.

A CAP ON THE NUMBER OF LIVESTOCK.

A county agricultural zoning ordinance could place a cap on the number of animal units allowed. Rice County, and some other Minnesota local governments impose a limit on the number of animal units at a site within agricultural zones.

ENVIRONMENTAL HISTORY DISCLOSURE IN PERMIT FORM.

Frederick County, Maryland, recently adopted a strict feedlot ordinance for swine operations with a provision that applicants must provide a three-year environmental history from any pervious operations (along with various environmental safeguards and assurances). The goal is to prevent operations with a history of spills or other bad practices from locating within the county, and to continually monitor environmental practices of approved operations to prevent future problems.

USE OF COMPUTER MODELING TO EVALUATE FEEDLOT SITES.

Professor Patricia Norris at Michigan State University, has been developing a planning tool for local governments to use in planning and zoning for feedlots. The tool is a computerized spatial decision system, combining Geographic Information Systems (GIS) spatial analysis with several criteria to evaluate the relative suitability of locations for feedlots.
The tool is designed for "proactive" planning--i.e. where should feedlots go, rather than reactive planning. The software system is currently being evaluated and may be available to local governments in the near future.

CONFLICT MANAGEMENT: ANOTHER TOOL FOR LOCAL GOVERNMENTS.

Land use regulations alone cannot eliminate conflicts between farmers and neighbors. A local government can play an active role in helping to resolve conflicts between neighbors before these conflicts polarize a community and leave a legacy of bitter feelings. Feedlot conflict management teams can be used to help minimize controversy. Building and maintaining trust among property owners is fundamental to a cohesive community that can rationally address and peacefully resolve problems.

DAIRY FEEDLOT PROGRAMS IN OTHER STATES

The State of Idaho Department of Agriculture regulates dairy feedlots with annual inspections regardless of size. Violations or unauthorized discharge of effluents can result in revocation of the farm milk permit. This program is considered the most stringent in the nation and very effective at environmental protection, meanwhile Idaho’s dairy industry continues to grow.

In Eastern North Carolina, where tremendous growth in the hog industry has occurred (including both contract and corporate production facilities and meatpacking plants), it has been found that citizens there perceive this has left them with an altered power structure, where the interests of large pork producers dominate those of constituents at all levels of government. Neighbors of chicken-production facilities in Texas express a similar sentiment. While more than 90 percent felt the level of poultry industry regulation is not adequate, only 53 percent thought the government would increase regulations in the coming years.

In Minnesota, surveys have found both farmers and non-farming citizens were dissatisfied with state agencies and local planning and land use regulations. Both groups suggested that state agencies need to work 'with' people, and local elected and appointed officials need to base their land use decisions on 'facts and findings.' While there were otherwise clear differences in the perspectives of these two groups in regard to animal agriculture, there was clear consensus in their criticism of state and local government entities. Many producers are frustrated that while they try follow every rule, they public seems to have little trust or confidence in the industry. The perception of many farmers is the environmental rules change so fast and the permit process moves so slow in Minnesota, that they just can’t compete on a national or international basis. takes so long This is an area for further exploration in the state.

LEGAL BASIS FOR LOCAL LAND USE REGULATION IN MINNESOTA

In rural Minnesota three levels of local government exercise land use powers: counties, townships and cities. Local governments in Minnesota exercise land use planning and zoning powers under express statutory delegation of police powers from the State of Minnesota. Delegation statutes for specific units of local government are:

Planning and zoning for counties, Minn. Stat. §§394.01, et seq.

Planning and zoning for townships and cities, Minn. Stat.§§462.01, et seq.

Under these authorizing statutes local governments may adopt zoning ordinances to divide their community into districts that allow specific land uses and do not allow other land uses. Local governments may regulate the density of uses within a district, the location of structures on parcels, and the size of structures. A zoning ordinance may also establish performance standards for allowed uses. These standards may control on- and off-site impacts including odor, noise, and dust. In order to make well-considered decisions, and obtain sufficient public input, a local government may choose to place a moratorium on the siting of new feedlots. This gives the local government time to develop an appropriate ordinance. The time can also be used to inform people of the process and answer their questions with reliable information. The time must be used productively with a defined process and end goal, and not just used as a cooling off period.

RELATIONSHIP BETWEEN COUNTY, TOWNSHIP AND CITY LAND USE ORDINANCES

Cities lie within townships and townships and cites lie within county boundaries. Through statute, the state has established how the potentially conflicting land use regulations of these three jurisdictions relate to each other. If a county adopts a zoning ordinance, a township can not adopt a ordinance that is inconsistent with the county ordinance. (Minn. Stat. §394.33, subd. 1) The township may, however, zone more restrictively. Within their boundaries, cities have exclusive land use authority. They can also choose to exercise some authority over rural areas in the surrounding township. Minn. Stat. §462.358 allows cities to extend application of their subdivision regulations to unincorporated territory located within two miles of its city limits in any direction.

As a counterbalance to this power, Minn. Stat. §462.3585 gives surrounding townships and counties the authority to require cities who invoke extraterritorial power to engage in cooperative planning for the overlapping jurisdictional area.

Because of the overlapping jurisdictions in rural areas, counties, townships and cities must work together to make land use decisions. In some instances, counties choose not to plan and zone at the county level. If feedlots are an issue for a single township or city, or a combination of townships, they have the statutory authority to address the issue. Townships may have local issues, needs and goals that diverge from the larger community and the resulting ordinance may contain different choices than other townships or the county would make. In some cases, counties have not wanted to enter the feedlot fray or feedlots have not affected the entire township but rather concentrate in a few townships. This is the base reason for townships and counties both having land use powers.

RELATIONSHIP OF STATE ACTION TO LOCAL LAND USE REGULATION.

Because local land use authority is derived from a delegation of state authority, it is possible for the state to preempt local action. The doctrine of preemption takes authority to act in an area of law away from the local government. Preemption occurs when the state so completely regulates an area that there is not room left for local control. Even though the state has not asserted that it has preempted local governments land use authority, the question of whether local governments can address environmental issues with their land use regulations, however, is open to question.

When local land use regulations attempt to address pollution or environmental issues they begin to step into the realm of state action. Although the authority of local units to independently regulate feedlots in the area of environmental control is somewhat uncertain, the State has elected to share authority under Minn. Rules 7020.0100 with counties in a joint feedlot permitting program. As of 2000, 51 counties had accepted delegation of joint feedlot permitting powers.

LOCAL AUTHORITY IN OTHER STATES

A survey of eight states was conducted in September and October 2000 as part of the Role of Government TWP team work. The states were: Iowa, Wisconsin, Nebraska, Missouri, North Carolina, South Carolina, California and Idaho were included in the survey. The surveyed states differ significantly on what authority local governments have over feedlot facilities. In Missouri, local government involvement is reported to be uncommon and then only if the concern involves human health. Iowa law exempts land and farm buildings from county zoning authority. Wisconsin county governments are involved on a zoning and ordinance level. South Carolina’s counties are responsible for land use decisions and can regulate the location of facilities through zoning.

North Carolina, like Iowa, specifically excluded farms from county zoning regulations but the 1997 Clean Water bill removed the previous zoning exemption for farms and authorized county governments to regulate hog farms and other agricultural facilities. Idaho’s land use planning laws give counties authority to permit CAFO facilities.

LOCAL GOVERNMENT REGULATION OF FEEDLOTS IN MINNESOTA

Most local feedlot ordinances in Minnesota contain a combination of the following provisions:

Multi-tier agricultural zoning districts
Separation distances from rural residences, towns, parks, and other gathering places
Setback distances from parcel boundaries, roads and other on-site structures
Procedures and requirements for permitting feedlots as a conditional use instead of a permitted use
Limits on the number of animals allowed per site or per a specified amount of land
Public notice and public hearing requirements
Design and management requirements for manure lagoons and earthen basins that go beyond MPCA standards
Requirements for land application of manure
Financial and land reclamation requirements for cleanup of abandoned sites
47 counties and several townships require conditional use permits for some feedlots, particularly large feedlots, feedlots with earthen basins or lagoons, and for feedlots within defined distances from water, cities or residences.
Many local governments require greater setbacks and separation distances for larger feedlots than for smaller feedlots: a sliding scale
Some ordinances prohibit feedlots within areas of high environmental risk: floodplains, shorelands, wetlands, near drainage ditches, wells or sinkholes, and on steep slopes.
Some ordinances establish requirements for manure storage facilities and setback requirements for manure application. A few counties require incorporation of manure within a day of application, and some require injection or immediate incorporation.

Although local governments have land use planning and zoning authority, many have not adopted comprehensive zoning ordinances. Controversy over a feedlots has spurred several counties and townships to adopt zoning ordinances where the concept of zoning had previously been rejected by residents.

Scoping Question 3: What are the costs and benefits of these different land use strategies?

The literature quantifying the costs and benefits of different land use strategies as applied to animal agriculture is nearly nonexistent. As noted earlier in this report, and researched in the GEIS Literature Summary, chapter F, External Benefits and Costs, the research on the cost and benefits of feedlot impacts on nearby landowners' property values is limited and contradictory.

There is, however, substantial literature investigating Asmart growth@, the cost of public services and the fiscal impact of various types of urban development. These studies, including the most recent study by the Minnesota Department of Agriculture on cost of services, show that Anew residential development is more fiscally advantageous when it occurs within or adjacent to established urbanized areas.@ Low-density residential development is more expensive than high-density development. The cost of services studies and fiscal impact studies are in virtual consensus. The conclusion that increasing density decreases societal, public, or private costs is held by nearly every type of organization that has studied the cost issue.

Conflicts between farmers and neighbors typically emerge from a lack of communication, information, or differences in attitudes, perceptions, beliefs, values, or desires. The purpose of conflict resolution is to find common ground on which opposing parties can agree, and thereby avoid expensive and bitter litigation and long lasting bad feelings. It is important to keep in mind, however, that conflict resolution may not succeed. Conflict resolution depends in large part on the willingness of opposing parties to negotiate. An all-or-nothing attitude on the part of one party will prevent a satisfactory settlement. A negotiated resolution of conflicts is more likely when the stakes are small because legal costs are seen as much higher. Technically complex issues are often difficult to resolve through negotiation.

In rural areas, residents often look to local government for conflict management, not merely for regulation. Local governments have the opportunity, outside of regulation, to create conflict management programs or use conflict management techniques to resolve feedlot conflicts.
However, there are also benefits to having a state agency conflict manager. Section 4 of the Land Use TWP discusses the essential elements of a conflict resolution program, including the formation of a conflict management team led by local government staff but including other experts to be used as needed.

WHY LAND USE CHOICES ARE MADE AT THE LOCAL LEVEL

The statutory power to regulate land uses, including feedlots, is based on the belief that local governments are the best forum for resolving local land use conflicts. Local government most closely represents the people who are directly and continuously affected by land use choices. Local government is also the most accessible to citizens. There is some evidence that siting controversies seem to be the most intense in states where county action is preempted by the state. He observes that this is in part because county officials have little say over where feedlots are located.

Since land use conflicts most intensely affect residents at the county level or smaller, this is traditionally where land use decisions have been made. These decisions are made by the people affected. Pollution concerns are more likely to affect people in a broader area, therefore, pollution control and enforcement has more often occurred at the state level.

Decisions at the state level are more likely to be standardized for the entire state, not allowing for variations at the local level. Land use problems and solutions do not lend themselves to state-wide decision-making. While the state may establish goals and standards for land use planning, the state cannot take into account the varying local history, culture, environmental and economic conditions that are critical to successful land use decisions. Local land use planning and zoning enable communities to move toward desired economic development goals while guiding development to environmentally appropriate locations.

The land uses that lead to conflict change over time. Along with feedlots, currently there are local controversies over cell towers and off-road vehicle parks. There have been other controversial land uses in the past. No single controversial use has been the basis for changing the land use authority of local governments. The process for making land use decisions at the local level has been proven to serve local citizens well. Feedlots should not be a reason for changing for changing local land use authority.

INTERVIEWS WITH SELECTED COUNTIES

The Land Use TWP team held interviews with selected county feedlot staff. The procedural details are described in the Land Use TWP beginning on page 58. The following points were observed from these interviews:
Pennington County staff and elected officials view feedlots as a possible economic boost to the depressed agricultural economy. Because of their relative disperse population, they feel there are areas within the county where feedlots could be encouraged with low risk of complaints. Pennington County is currently working to have townships adopt feedlot ordinances that encourage the location of feedlots in "pre-approved feedlot zones."
Nicollet County recently began using the Odor from Feedlots Estimation Tool (OFFSET), as an aid in determining separation distances for feedlots locating within the county. The county adopted revised feedlot regulations in December 2000, after six months of field-testing of OFFSET. Nicollet County Environmental Director and CAC member, Tina Rosenstein strongly advocates the benefits of using OFFSET in her county. In 2001, five additional Minnesota counties will be implementing OFFSET as part of a pilot program to examine the wider utility of this tool, which was developed by the University of Minnesota.
Since August 1998, Morrison County has required a "Land Use Notification" form to accompany every land use permit for the construction or addition to a dwelling unit in their Agriculture Zone and Agriculture/Forestry Zone.
Nearly all of the counties have undertaken specific outreach and educational efforts for producers to inform them of the ordinances regarding feedlots. Likewise, nearly all of the counties have taken steps to inform the general public about feedlots as a means to reduce potential conflicts.
Counties have made specific efforts to solicit input from producers and the public in developing or revising feedlot ordinances. All of the counties with ordinances held (mandatory) public hearings during the development and revision of feedlot rules ordinances to adoption. Several counties held multiple meetings, beyond mandatory public hearings. They felt these multiple meetings helped in the development and acceptance of the ordinances. There were few reported cases of intense reaction to the ordinances.
Most of the county staff suggested that an approach based on cooperation was preferable in order to avoid conflicts and complaints about feedlots. All, however, indicated their resolve in employing available legal authority to address egregious or persistent violations. Several commented that without strict enforcement for violations, other operators would become lax in complying with ordinances and rules.
The sentiment of county staff was somewhat mixed when asked about the effectiveness of land-use controls in reducing conflicts about feedlots. In most cases, they believed that having the ordinance in place helps to raise awareness of the relevant issues, as well as to set standards that producers could follow. In a few cases, though, they were not sure that the current state of the science supported the current level of regulation nor quantified its overall benefits beyond what most people would consider reasonable, (e.g., improved water quality).
Specific suggestions from county staff for reducing conflicts included developing standards and rules that are clear and free of personal biases and unifying all enforcement levels either through the counties, the MPCA or the federal government.

INTERVIEWS WITH SELECTED TOWNSHIPS.

The TWP team also interviewed officials in nine townships. Townships are active in adopting ordinances addressing feedlot issues, because the issue affects people at a very local level. The Minnesota Department of Agriculture ordinance survey (MDA, 1999) analyzed 34 township feedlot ordinances. Minnesota has 1793 organized townships. Township feedlot ordinances employ the same variety of land use tools as county ordinances: setbacks, separation distances, minimum acreages, agricultural districts, limitations on number of animals, and conditional use permit requirements. The following points are observed from these interviews:

Some of the townships had adopted feedlot ordinances in response to specific conflicts over a feedlot project; however, other townships in the interviewed group had adopted ordinances due to various other reasons.
Communication between township officials, operators and residents before and after ordinances were adopted is important in reducing conflict according to township officials. Communication before adopting the ordinance results in better ordinances. Communication after adoption results in fewer complaints.
Setbacks and separations distance requirements were cited as reducing complaints.
Townships have discovered that when they adopt ordinances, they also take on potential liability in defending the ordinance. One of the township has had to defend several lawsuits.
Several of the townships have turned over control of feedlots to their respective counties. After having adopted feedlot ordinances, these townships encountered liability costs and negative public opinion.
The cost of administering feedlot ordinances can also be too great for townships. Typically townships do not have staff and rely either on volunteer township officers or contracting with county staff for ordinance administration. Some counties are not willing to administer township feedlot ordinances.

MODEL ELEMENTS OF A FEEDLOT LAND USE ORDINANCE

The inclusion of this section is not meant as unconditional advocacy of the elements listed below. Each local unit of government will have to carefully consider if each or any of these elements is applicable to their unique local situation. There are often unforeseen consequences from any regulatory change that is made. Based on the results of their research on feedlot ordinance components in Minnesota and other states, and the perceptions of how effective various components are in reducing conflict, the Land Use TWP team has developed a set of model elements for a feedlot land use ordinance that could be used by any local unit:

Use a participatory process for developing a feedlot ordinance. A participatory process should involve residents, producers, and representatives of all levels of local government. This type of process builds trust in the process and the outcome. It also can build ownership over the final product.
Base ordinances on comprehensive plan policies. Comprehensive plans reflect the long-term goals of a community and states a vision for the character of the community. If ordinances are connected to comprehensive plan goals, the ordinances will help reach long-term goals and not merely react to immediate, specific problems.
Try to be proactive, not reactive. The timing of when feedlot ordinances are developed can also contribute to reducing conflict. The worst time to solve a problem is after the conflict is roaring and positions are entrenched. If local governments try to address feedlots before they become problems, it may result in amore conscientious ordinance. Some counties and townships have suffered from the thinking that if you ignore feedlots they won’t happen or they will go away.
Identify potential areas of conflict and address these with ordinance provisions. As part of the ordinance development process, local governments should identify potential areas of conflict and address these issues with specific ordinance provisions. Local governments have been consistently addressing the following issues:
Spatial relationship of feedlots to other land uses and critical natural resource. Local governments have employed the following spatial separation techniques in feedlot zoning ordinances:
- agricultural zoning districts or "large-scale" agricultural districts. Standard agricultural zoning districts require relatively large lots sizes, but allow a mix of agriculture and non-farm residential uses in close proximity. Local governments should consider designating a "large scale" agriculture district. These districts are based on the notion that large scale agriculture is similar to industry and should be separated from other non-farm uses. There is still a need to provide for separation distances and setbacks within a large-scale agricultural district because of farm residences and sensitive natural resources.
- Large-scale agricultural districts as part of a tiered system of agricultural zones. An example of a tiered system is included in Attachment 6 of the TWP. Minnesota courts have supported single-use zones that exclude other uses (Connor v. Chanhassen Township, 81 N.W. 2d)
- Establishing separation distances and setback requirements.

Notification and communication. Notification and communication efforts can help moderate expectations and increase understanding which leads to reduces conflict. Techniques used for notification and communication that have been discussed in this report include:
- land use notification forms that must be signed by people wishing to locate in an agricultural zone that allows feedlots;
- public hearings required for permit applications; and
- notification of neighbors about upcoming odor events.

Use of conditional use permits. Local governments may require conditional use permits for feedlots that do not meet the minimum requirements of the zoning district. Conditional use permits offer local governments more opportunity to mitigate off-site impacts such as odor and risk to water quality. The consideration of an application for a conditional use permit for a feedlot also requires a public hearing. This recognizes the need to consider neighbors opinions in siting feedlots.
Manure management. The odor and environmental risks associated with manure management are an important land use issues addressed in feedlot ordinances. Manure management provisions that aim to reduce associated odor problems and risks to water and soil, can reduce complaints. Ordinances reviewed by the land use team included the following provisions addressing manure management.
- bans on certain types of storage, particularly open pits and earthen lagoons;
- requirements for filing of manure management plans;
- controls on land application of manure, including
- location - buffers from water and wetlands
- time of year - don’t spread on frozen ground
- methods of application - incorporation requirements for liquid manure
- notification of neighbors about land application

Enforcement. Enforcement provisions and programs are also important in the development of feedlot ordinances. Consistent enforcement based on clear rules will reduce conflict over time because operators will know what is expected and the consequences of not complying. Enforcement provisions need to identify who enforces and the consequences for non-compliance. The best laws, rules and ordinances are meaningless unless there is consistent enforcement of the standards, with penalties for nonperformance or violation.

A number of technical recommendations from Biko Associates staff can be found in the Land Use TWP document at the Minnesota Planning website given previously in this document. Additional social, legal and environmental research is needed to address gaps in the current knowledge of potential impacts of animal agriculture on long-term land use patterns in Minnesota. It is important to document the precedents established in current litigation in order to understand how the courts are interpreting past and current legislation regarding the feedlot issue.

Author and Copyright Information

The primary author of the TWP is Jean Coleman, a land use attorney in Minneapolis, Minnesota. She can be reached at jcoleman@bikoassociates.com

The primary author of the GEIS is George Johnson, a Project Manager at the Minnesota Planning Agency. He can be reached at george.johnson@state.mn.us