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Jackel v. Brower

September 16, 2003

DORTHY JACKEL, ET AL., RESPONDENTS,
v.
JON W. BROWER, APPELLANT, COUNTY OF STEELE, ET AL, DEFENDANTS.



Steele County District Court File No. CX02559

Considered and decided by Harten, Presiding Judge, Stoneburner, Judge, and Parker, Judge.*fn1

SYLLABUS BY THE COURT

Although injunctive relief may be the most appropriate relief for a violation of a zoning-ordinance-setback requirement, such relief is neither automatic nor mandatory and the party seeking an injunction must establish that there is no adequate legal remedy and that an injunction is necessary to prevent great and irreparable injury.

The opinion of the court was delivered by: Stoneburner, Judge

Reversed and remanded

Concurring specially, Harten, Judge

OPINION

Respondents Dorthy and David Jackel sued appellant Jon W. Brower, Steele County, and Steele County's planning director asserting numerous claims arising out of Brower's construction of hog-confinement barns, including a claim that the facility built in 1996 violates the county's setback requirements. Brower filed this interlocutory appeal from the district court's issuance of an injunction compelling the county to enforce the setback requirement and compelling Brower to "permanently abate the violation" of the setback requirement. Because the district court abused its discretion by granting an injunction without determining that there is no adequate legal remedy and that an injunction is necessary to prevent great harm and irreparable injury, we reverse and remand.

FACTS

In 1996, appellant Jon W. Brower applied to Steele County for a building permit to construct an 800-animal-unit confinement facility.*fn2 Steele County's zoning ordinance provides that "no new animal feedlots or manure storage facilities shall be located closer than 1,000 feet from a neighboring residence." Brower "stepped-off" what he considered to be the distance between his proposed facility and respondents Dorthy and David Jackel's residence and submitted a handwritten drawing to the county showing that the facility would be located 1,065 feet from the Jackels' residence. The county issued the building permit.

By affidavit, Brower asserts that before construction of the facility in 1996, he spoke to David Jackel, who did not oppose the facility or its location. David Jackel's affidavit denies that such a conversation occurred. Dorthy Jackel's affidavit states that she knew nothing about Brower's plans until she noticed "digging" on his property in 1996, whereupon she called a person in the county planning and zoning department and asked "what's up?" Dorthy Jackel states that she was told that Brower had a permit to build the facility and that "there is nothing you can do; it's a done-deal."

In 1998, Brower obtained a conditional-use permit*fn3 allowing him to construct a second 800-animal-unit facility on his property. The record does not contain any evidence that the Jackels objected to this facility. But in July 2001, the Jackels complained to Steele County Planning Director Dale Oolman about odors from Brower's property and indicated their concern that the 1996 facility is too close to their residence. Oolman concluded that the 1996 facility is 52 feet inside the setback, but he also concluded that requiring Brower to move the facility to comply with the 1,000-foot-setback requirement will not address the Jackels' concerns about odor. Oolman recommended that Brower agree to additional odor-control measures, and the Steele County Board of Adjustment supported additional odor mitigation rather than strict enforcement of the 1,000-foot-setback requirement.

In June 2002, the Jackels sued Brower, the county, and Oolman, requesting, among other relief, that a writ of mandamus be issued by the district court compelling the county to enforce the setback requirement. The district court granted summary judgment to the Jackels on the setback claim and issued an injunction compelling the county to enforce the setback requirement and compelling Brower to abate the violation. All claims except the Jackels' claim of nuisance have been disposed of in pretrial motions.

Brower filed this interlocutory appeal from the injunction, arguing that the district court abused its discretion by summarily issuing an injunction because the county acted reasonably by attempting to address the purposes underlying the ordinance without strictly enforcing the setback requirement and because injunctive relief is not necessary. Brower also argues that the district ...


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