Judge strikes down rural Cass County township’s zoning restriction on feedlot siting

FARGO — A judge has ruled that Howes Township in rural Cass County overstepped its authority in imposing what the plaintiff called “overzealous” zoning setback requirements to keep feedlots away from residential property.

Cass County District Judge Wade Webb agreed with arguments presented by the North Dakota Farm Bureau that the township’s setback requirement lacked the authority to impose its requirement that any feedlots be at least 1½ miles from occupied residential property.

“The township does not have the authority to regulate an animal feeding operation’s appearance, burden on streets, nor general compliance with the Township’s Comprehensive plan,” Webb wrote in his decision.

The zoning requirement was put in place when farmers led by Pipestone Group were planning several years ago to build a 9,000-head swine feeding operation 2½ miles from the community of Buffalo that sparked heavy opposition from nearby residents and landowners.

Ultimately, Pipestone Group backed away from its planned Rolling Green Family Farms project, but the controversy generated by the proposal prompted the North Dakota Legislature to decrease township zoning authority in 2019.

North Dakota agricultural officials and farm groups have been trying to promote the state’s livestock industry, which has long lagged behind nearby states.

“Despite priding itself as an ag-friendly state, North Dakta lags far behind neighboring states when it comes to animal agriculture,” Daryl Lies, president of the North Dakota Farm Bureau, said in a statement. “Unfortunately, overzealous regulation and red tape has become a preferred means of preventing farms from diversifying to include animal agriculture.”

Ron Fraase, a farmer and Howes Township supervisor, said the decision is disappointing and frustrating, but the township board is still mulling whether to appeal.

“It’s still uncertain,” he said on Friday, Oct. 7.

Since the proposed Rolling Green Family Farms project failed to materialize, the township has not received any permit applications for concentrated animal feeding operations, Fraase said.

Township officials aren’t aware of any current plans, but an owner of the land the Pipestone Group planned for the swine operation, Randal Melvin, has said he intends to bring a livestock feeding operation to his family’s land.

Melvin is a member of the North Dakota Farm Bureau, which sued on his behalf to challenge the township’s setback requirement.

Although state law allows townships to impose greater setback requirements for feedlots than state law, they must demonstrate justification, a test Webb ruled Howes Township failed to meet.

A township must demonstrate “compelling, objective evidence specific to the township which requires a greater setback,” Webb wrote.

The township “produced extensive documentation associated with studies related to the effects of animal agriculture in places such as Ohio, North Carolina, Missouri, and Iowa,” Webb wrote, but failed to “produce any studies or evidence about the effects of animal agriculture in Howes Township,” failing its legal obligation under state law.

“One judge decides the fate of local control in North Dakota,” Fraase said, adding that he is “frustrated” by the legislative process that redefined township zoning authority in 2019, which he said ignored the concerns of local residents who are most affected by the zoning decisions and should have a greater voice in those decisions.

“Local control’s a big thing,” Fraase added. “I feel bad for the townships of North Dakota. ”In his statement, Lies said the North Dakota Farm Bureau supports “responsible local control, but when a small group of people demonstrates an inability to use their authority within the confines of state law, something has to be done.”

He added: “We hope the outcome in Howes Township is a wake-up call for other townships that may have similar problems. We want to work with townships, not against them.”

In order to spur more livestock production, Fraase said North Dakota should work to increase the state’s meat-processing capacity. He said he stopped raising hogs after the Cloverdale processing plant in Minot closed 15 or 20 years ago because it was no longer economical.

Jason McKenny, chairman of the North Dakota Livestock Alliance, said boosting meat-packing capacity is a goal of the industry, but it’s not an easy problem to solve.

“I would say processing is they key piece to development now,” he said. “You need processing to get animals, but you need animals to get processing. We’ve got to crack that code.”

In order to find acceptance for livestock feeding operations, developers should consult with neighboring landowners early in their planning, McKenny said.

“We’ve seen other operations go in where there was local support,” he said. “Have the meetings up front when you’re still in the exploratory phase.” When a good discussion unfolds, “More often than not, the local support comes.”