Posted by: Patricia Salkin | October 27, 2007

Ordinance Prohibiting Keeping Farm Animals in the City Does Not Constitute Zoning Regulation

Following the enactment of a county ordinance that prohibited farm animals in the city, the plaintiffs who had been keeping horses in the city for resale purposes argued that they were entitled to continue such use under the state right-to-farm statute and/or because the ordinance constitutes a zoning ordinance and they therefore had what would amount to a pre-existing nonconforming use.   

The Kansas Appellate Court dismissed both of these claims, first holding that the state right-to-farm statute was inapplicable to the county ordinance since the state statute addresses limitations on nuisance abatement for agricultural activities on farmland. Meaning, that neighbors who come to a nuisance on nearby property may not sue to abate it.  Second, the Court held that the ordinance in issue was not a zoning ordinance.  The plaintiffs argued that since zoning ordinances are enacted to promote the health, safety and welfare of the community, and that was the purpose of the ordinance in question, therefore the ordinance must be a zoning ordinance.  The Court noted that this reasoning was flawed because zoning ordinances are not the only mechanism available for municipalities to promote the health, safety and welfare of the community.  Of course, the essence of zoning is to create zones or districts within which certain activities may or may not occur.  This ordinance does not remotely fit the definition.  Since the ordinance is not zoning, there is no valid claim for pre-existing nonconforming use status which is available in zoning cases.  

Bice v. City of Rexford, 2007 WL 2915611 (Kan. App. 10/5/07).


Responses

  1. I guess to the court if it looks like a duck and quacks like a duck, it’s a horse.

    Of course not all HSW ordinances are “zoning” ordinances, and I suppose the City asserted this was simply an anti-farm animal ordinance, not a use restriction, and it could ban farm animals within its jurisdiction in the interests of HSW in the same fashion a few California cities have enacted citywide smoking bans.

    But an ordinance that says what uses you can or can’t do on certain property — even if it is a citywide ban — sure comes close to being “zoning.”


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