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E-M:/ Court Affirms Odor Ordinance

Enviro-Mich message from Patty Cantrell <patty@mlui.org>


Big agriculture industry interests have been after Brady Township
(Kalamazoo County, Michigan) ever since it enacted an ordinance some years
ago to protect local residents from the offensive odors of Confined Animal
Feeding Operations. Last year's battle over local control of agriculture in
Michigan (Senate Bill 205) came in part from the industry's efforts to shut
down township CAFO ordinances like Brady's.
The Michigan Farm Bureau and others succeeded last year in the Legislature
with S.B. 205, which took away local governments' power to manage
agriculture nuisances and environmental risks with zoning ordinances. But
this week a federal circuit court told them Brady Township's animal odor
ordinance is fair and reasonable.

The Sixth Circuit Court ruled that a Brady Township hog factory owner could
not claim that the township's ordinance was an unconstitutional taking of
his private property. In particular, the hog factory owner, Rob Richardson,
claimed that he was denied due process because Brady Township defined odor
thresholds for itself (per the number and type of animals at the operation)
not by using the federal government's weight-based definition of an "animal
unit."  Mr. Richardson wanted to expand his swine nursery CAFO, but the
township's ordinance limited the number of animals on site irrespective of
whether they were small pigs or large hogs.

The court essentially ruled that local governments can decide for
themselves what is offensive.

Below are some excerpts of the judges' comments. 


Patty Cantrell
Michigan Land Use Institute

>RICHARDSON v. TOWNSHIP OF BRADY; No. 99-1169;  2000 U.S. App. LEXIS 15520
(6th Cir. July 5, 2000)

The Sixth Circuit Court's majority opinion on substantive and due process
challenges to an animal odor control ordinance rejected the facial and as
applied substantive due process challlenges because: 

"A local zoning ordinance survives a substantive due process challenge if
there exists a rational relationship between the terms of the ordinance and
a legitimate governmental purpose. . . . While swine may produce less waste
than cows and horses, it is not irrational to base
>animal-unit equivalencies on offensiveness of waste rather than relative
quantity produced. . . . Although taking the weight of pigs into account in
determining their animal-unit equivalencies might result in an ordinance
more narrowly tailored to the Township's goal of reducing odor, the fact
that the Township chose not to do so does not mean that its ordinance is
irrational. "  
>The majority rejected the procedural due process claim because:
>"If Richardson's claim is that he was deprived of a text amendment or
"interpretation" without due process, he cannot show that he has a
protected property interest in such an amendment. Simply put, Richardson
can have no legitimate claim of entitlement to a discretionary decision. .
. . Richardson really seems to be arguing that he has a property interest
in the procedures
>themselves, and that by failing swiftly to execute its procedures the
Township has deprived him of that property right without due process. . . .
 However, Richardson can have no protected property interest in the
procedure itself. "

>The Sixth Circuit's rejection of substantive and due process challenges to
an animal odor control ordinance includes a concurring opinion on the
inability to challenge a pre-existing law and differing views on whether
protected property rights differ for purposes of substantive and procedural
due process.  
>Judge Ryan's concurring opinion relies on an analysis that is in accord
with numerous state and federal court decisions that reject takings claims
involving laws that were in effect when the plaintiff acquired the property:
>"While I have no doubt that Richardson's fee simple ownership of his land
is a property interest sufficient to assert a due process claim, whether
procedural or substantive, his inability to demonstrate any governmental
action that deprived him of any protected property right is fatal to his
lawsuit. Richardson purchased his property long after the defendant enacted
the zoning ordinance
>Richardson challenges. Therefore, there has been no action by the
defendant that deprived Richardson of anything; rather, this case is about
nothing more than Richardson's unfulfilled desire that the defendant act in
a manner favorable to Richardson's business interests. The Due Process
Clause is not offended when such aspirations are unrealized."

Patty Cantrell
Public Trust Alliance Project Manager
P.O. Box 228, 845 Michigan Ave.
Benzonia, MI 49616

tel: 231-882-4723 ext. 18
fax: 231-882-7350 
e-mail: patty@mlui.org
internet: www.mlui.org

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