Enterprise Partners v. County of Perkins
260 Neb. 650, 2000 Neb. LEXIS 226, 619 N.W.2d 464 (2000)
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Rule of Law:
Under Nebraska law, any county regulation that legally controls the use of property and the physical configuration of development upon land is a zoning regulation. Such regulations are invalid if enacted before the county has adopted a comprehensive development plan as required by statute.
Facts:
- Enterprise Partners (Enterprise) proposed to build a large-scale hog confinement facility in Perkins County, Nebraska.
- In response to public concerns about health and environmental effects, the Perkins County Board of Commissioners (the Board) contacted the Nebraska Department of Environmental Quality (DEQ).
- The DEQ informed the Board that it did not regulate odors, dust, or insects, suggesting these were local nuisance issues that could be addressed through county land use planning and zoning.
- The Board subsequently passed Ordinance 98-1, which required covers on livestock waste lagoons to control odor and flies.
- The Board also passed Ordinance 98-2, which required large livestock operations to demonstrate that animal waste would not run off onto adjacent properties or county roads during a 25-year storm.
- At the time the ordinances were passed, Perkins County had not adopted a comprehensive development plan.
Procedural Posture:
- Enterprise Partners filed a petition for declaratory judgment in a Nebraska trial court, seeking to have Ordinances 98-1 and 98-2 declared invalid.
- The trial court found the ordinances were a valid exercise of police power, not zoning, and ruled in favor of the Perkins County Board of Commissioners.
- Enterprise Partners, as the appellant, appealed the trial court's decision to the Nebraska Court of Appeals.
- The Nebraska Supreme Court then removed the case from the Court of Appeals' docket to hear it directly.
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Issue:
Are county ordinances that regulate odor, flies, and waste runoff from large livestock facilities considered zoning regulations that are invalid if passed without a pre-existing county comprehensive development plan?
Opinions:
Majority - McCormack, J.
Yes, the ordinances are zoning regulations and are invalid because they were passed without a pre-existing county comprehensive development plan. A county's power is delegated by the legislature and must be strictly construed. Nebraska statute § 23-114.03 explicitly requires that a county adopt a comprehensive development plan before adopting any zoning regulations. Zoning is defined as the process a community uses to legally control the use of property and the physical configuration of development. Ordinance 98-1, by requiring covers on waste facilities, and Ordinance 98-2, by requiring a pre-construction demonstration of waste containment, both control the use and physical development of land. Because they fit this definition, they are zoning regulations. Citing precedent from Deans v. West, which invalidated regulations adopted before a comprehensive plan, the court held that since the Board stipulated it had no such plan, the ordinances are invalid.
Analysis:
This decision clarifies the distinction between a county's general police power and its specific zoning authority in Nebraska. It establishes that regulations controlling the physical use and development of land are considered zoning, regardless of their stated purpose (e.g., public health). The ruling serves as a strong procedural check on counties, preventing them from enacting ad hoc land-use restrictions without first engaging in the formal, long-term planning process mandated by the state legislature. This precedent reinforces that counties cannot circumvent statutory zoning requirements by labeling land-use controls as general health and welfare ordinances, thus impacting how local governments can respond to controversial development proposals.
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