Posted by: Patricia Salkin | February 1, 2008

NE Supreme Court Finds Mutual Impact Easements Between Farmers and Potential Homeowners Constitutional

Otoe County enacted a zoning ordinance, that among other things, prohibits the construction of single-family dwellings in general agricultural districts that are within a one-half mile radius of certain animal feeding facilities unless the owner of the dwelling grants an impact easement to the owner of the facility and the facility owner agrees to the easement. However the zoning law provides that if a homeowner grants an impact easement to the owner of a confined or intensive animal feeding use or waste handling facility, an dwelling units associated with the land on which any such easement has been granted shall not be included in the specified minimum distance measurements.  An impact easement is defined in the ordinance as “[a]n easement or deed restriction, recorded in the office of the Otoe County Registrar of Deed, which runs with the land, which is granted to the owner of an industrial use, a confined or intensive animal feeding use, a waste handling facility use or other use for the period of time that such use shall exist, by the owners of adjoining or neighboring real property in which is mutually agreed that the grantor shall hold the grantee harmless from odor, smoke, dust, or other legal impacts associated with such use on the grantor’s property when such use is operated in accordance with the terms of such easement or deed restriction.”[(emphasis supplied)].    

Prior to the adoption of the ordinance, Coffey purchased 195 acres of land adjacent to a hog confinement facility owned by Kreifels.  Approximately 192 of these acres fall within the one-half mile distance separation requirement. Coffey subdivided his land and entered into an agreement to sell one parcel for the construction of a home.  Acknowledging the need to obtain an impact easement, he had one drafted and sent to Kreifels, who refused to sign or return the easement. Without the easement, the property owners could not obtain a building permit and Coffey was denied a conditional use permit and a variance to enable the construction.  Coffey filed suit, alleging that the zoning regulations are unlawful because the impact easement requirement constitutes “an unlawful delegation of the county’s governmental regulatory power to private individuals.” 

The Nebraska Supreme Court held that the mutual impact easement requirement does not constitute an unconstitutional delegation of legislative authority, and it therefore does not violate due process. The Court explained, “If the action of a property owner has the effect of legislation in that the action creates the restriction or prohibition, then the ordinance or statute constitutes an unlawful delegation of legislative authority.  But, if the consent is used for no other purpose than to waive or modify a restriction which the governing body has lawfully created and has provide for such a waiver or modification by those most affected, then the consent is regarded as being within constitutional limitations.” The Court found that the legislative delegation here is constitutionally permissible since it is a general prohibition that would be an otherwise reasonable and valid, and that it delegates to private citizens the mere opportunity to waive that prohibition.   

Coffey v. County of Otoe, 274 Neb. 796, 2008 WL 115891 (Neb. 1/11/2008). 

The opinion can also be accessed at:  

The case is also mentioned on HuskerBlawgs at:  


Special thanks to Professor Anthony Schutz of the University of Nebraska School of Law for brining this case to my attention.


  1. As communities across America continue to grow, rural and residential land uses are clashing with an ever greater frequency. While municipalities look to zoning law to facilitate and regulate the often conflicting uses, impact easements will likely grow in popularity and application.

    A significant part of this case dealt with the consent provision and whether it is a lawful delegation of legislative authority and whether the provision violates due process. One foreseeable consequence of this scheme is the creation of a market for an agricultural landowner to sign and consent for the impact easement. The case did not specifically acknowledge the scenario of a bargain for exchange between the agricultural owner and the developer for consent to the impact easements, but it is not unforeseeable.

    It is possible that the contractual arrangements for the impact easement will ultimately dominate any decision by agricultural landowners to consent to the subdivision because the agricultural owner has nothing to gain by consenting to the impact easement absent any consideration. Furthermore as this case aptly pointed out, when an agricultural landowner consents to the impact easement and subdivision of nearby land, they open themselves up to future litigation and liability concerning the scope and legitimacy of the easement, as well as litigation concerning the health of future residential property owners.

    This scenario is problematic because the impact easement is a condition for getting a permit to construct dwellings. Once a money element is brought into the mix, the approval of a building permit is not solely predicated on objective criteria, but rather the adequacy of the consideration offered to the agricultural owner.

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