The Tennessee Attorney General was asked whether a concentrated animal feeding operation is an agricultural use of land so that it is protected from county zoning controls. The Attorney General replied that a concentrated animal feeding operation is an agricultural use of land.
County Zoning Authority to Regulate Concentrated Animal Feeding Operations
Honorable Gary Odom
55th Legislative District
Suite 22, Legislative Plaza
Nashville, TN 37243-0155
Does Tenn.Code Ann. § 13-7-114 prohibit a county from using its zoning authority to regulate a "concentrated animal feeding operation" because a "concentrated animal feeding operation" is an "agricultural use of land?"
Given the broad definition accorded to the term "agricultural use" in other jurisdictions deciding that operations similar to concentrated animal feeding operations are agricultural uses statutorily removed from local zoning authority, it is likely that a Tennessee court would find that concentrated animal feeding operations are removed from local zoning authority by Tenn.Code Ann. § 13-7-114.
In Tennessee, a county is prohibited from using its zoning authority to regulate buildings "used for agricultural purposes" as well as "the agricultural uses of land." Tenn.Code Ann. § 13-7-114 (enacted 1935). Therefore, whether a county may use its zoning authority to regulate a "concentrated animal feeding operation" (CAFO) depends on whether a CAFO is an "agricultural use of land." It is necessary to define the relevant terms in order to answer both questions.
The legal definition of a CAFO does not answer whether a CAFO is an "agricultural use" under zoning law. By statute, Tennessee currently accepts Environmental Protection Agency's (EPA's) definition of the term "CAFO." Tenn.Code Ann. § 69-3-103(34). EPA defines a CAFO to be an animal feeding operation that confines more than a specific number of various animals depending upon certain conditions not relevant to this discussion. 40 C.F.R. pt. 122 app. B (1999). Tennessee requires CAFOs to be permitted only by the Department of Environment and Conservation. Tenn.Code Ann. § 69-3- 108(b)(7) (enacted 1998).
In case law, CAFOs generally appear to be agricultural in nature. See, e.g., Concerned Area Residents for the Environment v. Southview Farm, 34 F.3d 114 (2d Cir.1994) (dairy farm a CAFO); Carr v. Alta Verde Industries, Inc., 931 F.2d 1055 (5th Cir.1991) (cattle feedlot a CAFO). Nevertheless, a CAFO may be fairly broadly defined to include many animal confinement operations. See Weber v. Trinity Meadows Raceway, Inc., No. 4:92-CV-267-Y, 1996 WL 477049 at *10 (N.D.Tex. June 20, 1996) (horsebarn at a racetrack a CAFO). Because neither the statutes and regulations nor the cases answer whether a CAFO is an "agricultural use," it is necessary to ask next whether the term "agricultural use" is defined to include CAFOs.
The term "agricultural use" is not defined in the Tennessee Code. We have previously noted, however, that the term "agriculture" has traditionally been broadly defined elsewhere. Op.Tenn. Att'y Gen. No. 94-103 (September 9, 1994) (opining that Tenn.Code Ann. § 13-7-114 prevents a county from using its zoning authority to regulate the clear-cutting of trees because forestry is "agriculture."). The broad definition of the term "agriculture" has generally been extended to the term "agricultural use" and like terms in zoning cases involving statutory interpretation. See, e.g., Steege v. Board of Appeals of Stow, 527 N.E.2d 1176 (Mass.App.Ct.1988) (boarding stable and riding academy incidentally selling an average of ten horses a year is "agricultural use" protected by statute from local zoning regulation); Town of Southampton v. Equus Associates, Ltd., 615 N.Y.S.2d 714 (N.Y.App.Div.1994) (raising, training and selling polo ponies is "agricultural production" under the relevant statute).
While it is clear that the terms "CAFO" and "agricultural use" are both defined broadly, we discovered no cases in Tennessee or elsewhere deciding whether a CAFO is an "agricultural use" exempted by statute from local zoning authority. Nevertheless, several cases from other jurisdictions decided that CAFO-like enterprises were "agricultural uses" protected by statutes exempting such uses from local zoning authority. In Masterson v. The Highlands, L.L.C., 705 N.E.2d 128, 131-133 (Ill.App.Ct.1998), the court held that a zoning statute that prohibited a county from regulating land used for "agricultural purposes" foreclosed a county from using its zoning authority to regulate a large scale hog feeding operation. The Masterson court noted that a separate 1996 statute gave regulatory power over such operations to the Illinois Department of Agriculture and the Environmental Protection Agency, thus evincing the legislature's continuing intent to withhold from counties regulatory power over such operations. Id. at 132-133. In County of Lake v. Cushman, 353 N.E.2d 399, 401-405 (Ill.App.Ct.1976), the court held that a 40' x 40' poultry hatchery hatching 5000 eggs into young chicks constituted an "agricultural use." In Premium Standard Farms v. Lincoln Township of Putnam County, 946 S.W.2d 234, 239 (Mo.1997), the court held that 96 hog confinement facilities attached to 12 sewage lagoons were "farm structures" protected by a statute prohibiting local governments from using their zoning powers to regulate such structures. In Fields v. Anderson Cattle Co., 396 P.2d 276, 281 (Kan.1964), the court held that animal feed lots holding up to 15,000 head of cattle and 12,000 head of sheep were for "agricultural purposes." In Carp v. Board of County Commissioners of the County of Sedgwick, 373 P.2d 153, 154- 155 (Kan.1962), the court held that a hog feeding operation handling up to 2500 hogs on 160 acres of land constituted an "agricultural purpose." Finally, in Kuehl v. Cass County, 555 N.W.2d 686, 688-689 (Iowa 1996), the court held that two proposed confinement buildings intended to feed 2000 hogs apiece on a five acre site constituted an "agricultural use." Notably, the Kuehl court overruled its previous decision in Farmegg Products, Inc. v. Humboldt County, 190 N.W.2d 454 (Iowa 1971). The court in Farmegg had concluded, over a strong dissent, that a proposed operation of two buildings confining about 40,000 chicks apiece was not an "agricultural purpose" because it was to be "organized and carried on as an independent productive activity and not as part of an agricultural function." Farmegg, 190 N.W.2d at 459. In Kuehl, the court noted that Farmegg had drawn much criticism and reversed Farmegg's "view that an exempt agricultural use must be in conjunction with a traditional agricultural use otherwise in existence." With Farmegg's reversal, we discovered no remaining cases holding that a CAFO-like operation was not an "agricultural use" when a statute prohibited a local government from using its zoning authority to regulate an "agricultural use."
The clear weight of authority establishes that large scale feed operations like CAFOs are regarded as "agricultural uses" by the courts when a statute similar to Tenn.Code Ann. § 13-7-114 prohibits a county from regulating such uses under its zoning authority. Therefore, it is likely that a Tennessee court would interpret Tenn.Code Ann. § 13-7-114 to prohibit a county from using its zoning authority to regulate CAFOs, the more so because the subsequently enacted Tenn.Code Ann. § 69-3-108(7) gives regulatory authority over CAFOs only to the Department of Environment and Conservation, thereby evincing the legislature's continuing intent to withhold such authority from a county.
Paul G. Summers
Attorney General and Reporter
Michael E. Moore
Douglas Earl Dimond
Assistant Attorney General
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