What's happening with the Faria Dairy? (updated October 1, 2009)
Here's a quick summary of the underlying issues:
In 2003, Sebastiao and Maria Faria bought land south of Willcox, and
built a dairy with 10,000 cows on the east side of Kansas
Settlement Road. The property also includes land about a half
mile west of Kansas
Settlement Road. In late 2006, the Farias wanted to build a pen
feeding operation to supplementally feed heifers -- young cows --
before adding the acceptable milkers to the main herd. County Supervisor Searle told Sebastiao Faria a special
permit would not be needed. The Farias then, without asking permission
from county zoning, built the pen feeding operation on 40 acres next to
300 acres of pasture.
Many neighbors complained about smells, flies, dust and light
pollution from the heifer operation. The Farias wouldn't shut down.
The case ended up going to court. At trial, one neighbor said "[a]s
ranchers, we are very familiar with the odors associated with
cattle. However, even with this background, the Faria operation
has produced odors so bad that it is unbearable to spend time
outdoors." The judge said "awful and sometimes overpowering odors
and stench, and dust, and swarms of flies, are regular problems.
The impact is real and quite severe at times." However, not every
nearby resident complained, and the Farias argue
that the County provided no evidence showing that the impact of their
dairy operation on neighboring landowners is different in nature or
kind from any dairy's impact. The Farias add that they generally
employ the best available measures to limit
the odors and flies associated with raising cattle and dairy farming.
If county zoning regulations apply to the pen
feeding area, then the Farias need a special use permit from the county
department. However, for lots of over five acres, a state law
exempts "general agricultural
operations" from regulation by county
zoning. Much of the argument in the case is about whether the pen
feeding operation is a "general agricultural operation" which one state
law exempts from county zoning regulations, or is a "commercial feed
lot" or a "like operation" which another state law says counties may
The Farias lost at trial,
and lost on most of the issues when they took the case to appeals
court. These earlier events are discussed in Section II below.
Section I, which immediately follows, concerns only the
possibility that the case will get into the state Supreme Court.
I. The Farias are now attempting to get their case into the Arizona Supreme Court.
The Supreme Court must first decide whether or not to accept the
Farias' appeal. If the Court does decide to accept the appeal,
then both sides will argue "the merits" of the case; but right now, the
Farias' job is to convince the Court that the case is worth taking the
time to hear, and the County's job is just to convince the Court
of the reverse.
On August 5, the Farias filed their initial Petition arguing that
the Supreme Court should accept their appeal. The County filed
its Response, arguing against accepting the appeal, on August 24.
The Farias can't file any more arguments at this point, unless
the Court gives special permission. Basically, what'll happen
next is that the Court will issue an order either granting review, or
denying it. If the Court grants review, then there'll be briefs
"on the merits," followed by oral argument.
The County had the right to appeal anything it didn't like, but didn't.
The Farias' arguments are in Section A below, the County's answers are in Section B. Added on October 1: The arguments by a friend of the court are in Section C.
A. The Farias August 5 brief, arguing for the Arizona Supreme
Court to accept their further appeal, is online, in a 1.3MB pdf file, at
The Farias' overall argument is "that this is
a case of first impression and that the court has incorrectly decided
important issues of state-wide significance," Petition ("Petn.") p. 1.
The Farias state one issue: "Is the use of real property to raise
heifers as replacement stock for a dairy farm exempt from county zoning
regulation as a use of land or improvements for 'general agricultural
purposes' ...?" (Petn. p. 1).
Petn. pp. 1-3 then state a "Factual Background" of the case, including
the basic facts, and the procedure in the trial and appellate courts
Petn. pp. 4-12 contain five arguments, stated and summarized below.
I: "The Court of Appeals Has Incorrectly Decided Important Issues Of State-Wide Significance" (Petn. pp. 4-5)
-- Summary: Arizona Revised Statute ["ARS"] 11-830(A) says that on a parcel of five or more "contiguous
commercial acres," no county zoning ordinance shall regulate the use or
occupation of land or improvements for "general agricultural purposes." The court of appeals held that raising heifers as
replacement stock for a dairy farm was not a "general agricultural
purpose." That ignored the accepted meaning of the phrase "general
agricultural purposes," and negated the words of ARS 11-830(A). That
holding "dramatically expands the power of county zoning authorities
over agricultural land uses and threatens the economic security of
dairy farms and other agricultural pursuits in unincorporated areas
throughout the state. The court's holding presents a purely legal
issue, is plainly wrong and should be reviewed by this Court."
II: "The Agricultural Exemption Limits the Authority of
Counties to Regulate the Use or Occupation of Land or Improvements"
(Petn. pp. 5-6)
-- Summary: ARS 11-830(A)(2) specifies that
for a tract of five or more acres, no county zoning ordinance "shall
... prevent, restrict or otherwise regulate the use or occupation of
land or improvements for ... general agricultural purposes." Raising
heifers is a general agricultural purpose. Therefore, a county
zoning ordinance cannot regulate the Farias' operation.
III: "The Use of Land to Raise Heifers as Replacement
Stock for a Dairy Is a General Agricultural Purpose" (Petn. pp. 7-8 )
-- Summary: Many cases and other legal authorities are offered in support.
IV: "The Court of Appeals Erred in its Application of
[ARS] 11-821.01(A) to Allow Regulation of Agricultural Uses" (Petn. pp.
-- Summary: ARS 11-821.01(A) lets counties pass zoning ordinances
"canneries, fertilizer plants, refineries, commercial feed lots, meat
packing plants, tallow works, and other like businesses." The
court assumed that commercial feedlots are
agricultural uses; however, there is some legal authority that when ARS
11-821.01(A) was passed, the legislature considered feedlots not
as agricultural uses, but as industrial "meat factories." The court
raising heifers was not operating a feed lot. However, the court
also found the operation to be an "other like business," meaning "like"
a commercial feed lot.
Regulation of such a business is allowed by ARS
11-821.01(A). The court
defined ARS 11-821.01 "as including 'those businesses which would have
an obvious impact on adjoining and nearby property owners.' This test,
however, would encompass many previously-exempt agricultural uses....
In order to harmonize [ARS 11-821.01(A) and 11-830(A)] 'other like
businesses' should be interpreted to exclude exempt agricultural uses."
V: "The Court Should Exercise its Discretion to Review
the Court of Appeals' Opinion in this Matter" (Petn. p. 12)
-- Summary: "Based on the [appellate] Opinion, any dairy operation in any
unincorporated area of the State is potentially subject to zoning
regulation ... based upon the vagaries of local county politics.... The
effect of the Opinion extends far beyond the immediate parties. It
involves a pure issue of law erroneously decided .... The Court should
exercise its discretion to grant review."
-- This reference to "the vagaries of local county politics" is as
close as the Farias' brief comes to mentioning County Supervisor Searle, whose advice to the Farias began this train of
B. The County's "Response To Petition For Review" is online, in a .45 MB pdf file, at
The County opens by stating its position clearly: "The
Opinion [on appeal] follows the plain reading of an Arizona statute --
that counties must provide for and regulate the location of 'commercial
feed lots...and other like businesses....'; there are no conflicting
decisions from the Courts of Appeal; and no Supreme Court decision
needs to be overruled or qualified. Accordingly, the Appellant's
Petition for Review should be denied," Response ("Resp.") p. 2.
-- The County's statement does not directly
address the corresponding section in the Farias' brief, that "this
a case of first impression and that the court has incorrectly decided
important issues of state-wide significance," Petition ("Petn.") p. 1.
-- Nor does the County's statement address the main problem, which is
reconciling two overlapping statutes, not simply reading one statute.
The County's statement of issues is not quite equivalent to the Farias' formulation.
The Farias stated one issue: "Is [their] use of real property ... for 'general agricultural
purposes' ...?", Petn. p. 1. The County now frames a single
"Issue Decided By the Court Of Appeals" thus: ARS "11-821.01.A
requires counties to provide for and regulate the location of
'commercial feed lots...and other like businesses....'
The Court of Appeals held that this means that commercial feed
lots and like businesses, including the Petitioners' pen feeding
operation, are not 'general agriculture' pursuant to [ARS] 11-830(A)(2)
and thus are not exempt from zoning regulations," Resp. p. 2.
-- The County's formulation assumes the truth of the County's position.
If the Farias' operation is "like" a commercial feed lot, as the
County assumes, then the County wins; that's why the Farias are arguing
that their operation is not like a commercial feed lot, but is instead
a general agricultural purpose.
The County then adds an "Issue Not
Decided By the Court Of Appeals, Which Must Be Decided If Review Is
Granted:" "Even assuming commercial feedlots and other like
businesses, including a large industrial agri-business such as
Petitioners' pen-feeding operation, might constitute 'general
agriculture,' whether it is nevertheless subject to County zoning
pursuant to ...
([ARS] 11-821.01.A)," Resp. p. 2.
-- The appellate rules allow the County to raise "issues which were not
decided but perhaps now must be," but the particular issue that the
Count is raising here appears inconsistent with the County's
own statement of the
"Issue Decided By the Court Of Appeals," which includes "The Court of Appeals held that ... commercial feed
lots ... are not exempt from zoning regulations," Resp. p. 2.
Resp. pp. 3-7 are entitled "Material Facts."
-- These four pages appear to be unnecessary. In the Supreme
Court's "Rules Of Civil Appellate Procedure," Rule 13(b)(1) says that
in in a Response, "a
statement of the facts ... need not be included unless the appellee
finds the statements of the appellant to be insufficient or incorrect."
Response pp. 3-7 do not appear necessary, since nothing in
them is disputed; this section even
begins "There is no dispute about what Appellants are doing on the
All of the County's arguments are in one section, Section IV, on Resp.
pp. 7-12, entitled "There Is No Reason To Grant the Petition."
The first paragraph of this section, on Resp. pp. 7-8, makes two
points: it opens and closes "The Petitioners' pen feeding
operation looks, smells and operates like a feedlot.... the Court
of Appeals held that [the Farias] waived the argument that their use of
the Subject Property is not a like business."
As to the detailed arguments which follow on pp. 8-12, they can be restated, but hardly condensed. The County's argument is very convoluted, and undercuts the County's
opening statement that this
is an appeal from
"the plain reading of an Arizona statute." Otherwise, the County
seems to be arguing more about what "like" means than what a "general
agricultural purpose" is.
The only possible closing: Never try to outguess a Supreme Court.
C. The United Dairymen Of Arizona (the "UDA") has filed an amicus brief in the Faria Dairy case.
Amicus briefs -- technically,
"amicus curiae," pronounced "ah-MEE-kus CUR-ee-eye," meaning "friend of
the court" -- are, in theory, aimed at helping a court decide a case
understand the law better. In practice, they're often filed by an
organization that isn't a party to the case but believes its members
will be greatly affected by the decision.
The complete brief is posted online, in a file about 568K long, at
The UDA's website is at
That site's "About UDA" page
says the UDA "is an agricultural milk marketing cooperative
incorporated in 1960 [whose] membership consists of approximately 90
producers, averaging 1200 head per dairy, representing approximately
90% of the milk in the state. UDA's modern manufacturing facility
in Tempe operates 24 hours a day, seven days a week .... We
provide product for a cheese manufacturer on-site. UDA's plant
can process 10 million pounds of milk per day .... UDA is among
the few remaining full service dairy co-ops in the country.... We
employ approximately 165 full-time employees."
The UDA's brief opens (p. 1)
with a "Statement Of Interest," in which the UDA states that the
opinion being appealed "constitutes an unworkable shift in regulation
of agricultural pursuits in the State of Arizona that imposes an undue
burden on dairying in Arizona." Frankly, an amicus brief is
overdue; the Farias' filings didn't just open the door for one, they
virtually hung out the party flag.
The brief (p. 1) gives two main
reasons for reversing the result below: "(1) it ignored a
legislative mandate detailed in [ARS] 11-821(H)(2) requiring that
county plans not [boldface "not" in original] impinge upon the
long-established agricultural exemption provided in [ARS] 11-830(A)(2);
and (2) it incorrectly found that feeding corrals incidental to the
operation of a dairy are 'like' commercial feedlots."
As to point (1), the Statement
Of Interest argues (pp. 2-3) that ARS 11-821(H)(2) constitutes an
"unequivocal legislative mandate ... not [boldface "not" in original]
to impinge upon the agricultural exemption," and that the opinion on
appeal "eviscerates Arizona's long-standing public policy to promote
agriculture, creating an onerous and unworkable partitioning of
legitimate agricultural pursuits."
As to point (2), the Statement
Of Interest argues (p. 2) that the opinion on appeal "creates a
perverse situation in which Arizona dairies and farming operations in
unincorporated areas, which have operated for years using feeding
corrals ... are now subject to the whims of county zoning panels."
A "Material Facts" section
(entirely on p. 3) has two paragraphs. Both set out facts, such
as "Arizona is an arid state with limited land available for grazing;"
the second paragraph adds some argument: that "commercial feed
lots ... are generally run by third parties to temporarily house and
feed other farmers' beef cattle before slaughter. Dairy feeding
corrals ... are ... part of each dairy farm's milk-producing operations
[therefore] are part of a 'general agricultural purpose' and are not
subject to regulation pursuant to [ARS] 11-821(H)(2) and
11-830(A)(2)." The Supreme Court may accept that conclusion, but
not because the amicus brief labels it as a fact.
The "Argument" section begins
on p. 4, with a summary of the arguments that will be made: "...
the court below failed to consider all applicable legal
authority. It ... neglected to undertake any analysis of
legislative intent in regulating commercial feedlots and 'like'
businesses. The central holding was essentially therefore by
default. A ruling of such import by default is an inappropriate
resolution of an issue that impacts many thousands of people in
Arizona. Dairy feeding corrals are not 'like' a commercial
feedlot. The court below erred in ruling otherwise."
Argument I is titled "The Court
Of Appeals Failed To Consider and Give Effect To All Applicable Legal
Authority." This general proposition is argued in parts I.A and
Argument I.A (pp. 4-5), titled
"The Court Below Was Not Directed To Statutory Authority Determinative
Of The Issues," is that the court below thought "that, because the
Legislature enacted [ARS] 11-821.01 after ... 830(A)(2), the
legislature meant ... 821.01 to be an exception to ... 830(A)(2) [but
the court below ignored that] [i]n 2002, decades after [italicized
"after" in original] passing ... 821.01, the Legislature reaffirmed the
agricultural exemption in ... 830 by amending ... 821.01," and that in
amending "... 821, the Legislature specifically commented that 'county
plans may not regulate [boldface "may not regulate" in original] ...
grazing or agricultural activities.'... These authorities were
never cited to the Court of Appeals by any party, however." The
Supreme Court will appreciate being supplied with authority that is
essential but was ignored by the courts below. However,
appreciation of the supply does not always translate into agreement
with the supplier.
Argument I.B (pp. 6-7), titled
"The Opinion Neglected To Evaluate [ARS] 11-821(H)(2) And Thus Failed
To Give Effect To Legislative Intent," is that in ARS 11-830(A)(2),
"the Legislature intended the phrase 'general agricultural purpose' to
have a broad scope," and that "the Legislature has [evidenced] an
intent ... that the term 'agriculture' be broadly construed;" and that
the appeals court "abrogated the [court's] acknowledged duty to uphold
the intent of the legislature, which had explicitly provided that ...
821.01 was not intended to carve out an exception to ... 830."
Argument II (pp. 7-9), titled
"The Court Of Appeals Erred By Failing To Consider Whether Dairy Farms
Are 'Like Businesses,'" is that the court below "found that [the
Farias] had waived the argument that their dairy pens were not a 'like
business,'" but that nonetheless "The Supreme Court may hear
[such] issues ... particularly where the issues are of first impression
or statewide importance," so "This Court should consider the authority
presented by all interested parties before making a determination of
whether a dairy farm's feeding corrals are 'like businesses' under
Argument III is titled "The
Court Of Appeals Erred In Holding That Dairy Farms Are 'Like
Businesses' under [ARS] 11-821.01." Argument III.A (pp. 10-15) is
titled "The Court Of Appeals Failed To Analyze Facts Bearing Upon The
Definition Of 'Commercial Feedlot' And 'Other Like Businesses.'"
(There is no III.B.) The brief offers several authorities for the
proposition that the Farias' feeding corral is completely unlike a
The Conclusion (p. 15) is that
the appellate court "failed to consider applicable legal authority and
failed to give effect to the intent of the Arizona Legislature.
The Opinion will result, unless reversed, in a potentially damaging
reformation of agricultural and dairy farming operations in
Arizona. This Court should therefore grant review to ensure
adequate consideration of the statewide implications of the decision
II. The case up to the appellate court denial of the Farias' appeal
In 2006, Cochise County Supervisor Richard Searle told Sebastiao Faria
that he could go ahead and add some feeding pens to his dairy operation
without asking for county approval. Many nearby residents say the
smell and flies from the pens are awful. The county zoning
department told the Farias to either get a permit, or shut down the
pens. The Farias applied for a permit. The Planning &
Zoning Commission denied a permit, and so did the Board of
Supervisors. The county got a court order for the Farias to shut
down. The Farias appealed, and are operating the pens during the
appeal. The appeal will be orally argued on May 20, 2009.
After the appeal is decided, Faria may pursue a counterclaim exceeding
$1 million against the county.
This article summarizes the main points of the dispute, not every
detail. For those who want every detail of the appeal, the
opening brief, answering brief, and reply brief are online at
Filings about the County's cross-appeal are at
Instead of copying the organization of those briefs, which get tangled
up in disputing each other's points, this article gives the history of
the Faria Dairy and its problems with neighbors and the county, and
looks at the three big issues in the appeal: Is the heifer
operation a "general agricultural purpose"? Is it "like" a
commercial feedlot? Can the statutes about "general agricultural
purpose" and "like" be reconciled?
In 2003, Sebastiao and Maria Faria bought land south of Willcox,
Arizona, and built a dairy. The main operation, with 10,000 cows,
is on the east side of Kansas Settlement Road.
The property also includes land about a half mile west of Kansas
Settlement Road. In late 2006, the Farias built pens here for
feeding up to 3000 heifers -- young cows -- before adding them to the
main milking herd. Unpromising heifers are sold at a local
auction, but such sales are merely incidental to the operation.
If county zoning regulations apply to the land the heifer operation is
on, then the Farias need a special use permit from the county zoning
department. However, a state law exempts "general agricultural
operations," on more than five acres, from being regulated by county
Sebastiao Faria says that before building the heifer pens, he spoke
with Supervisor Searle "regarding [Faria's] plan to use the subject
property to raise heifers, and described 'a use of the land nearly
identical to that now being employed.' ... [Searle] advised [him]
that a special use permit would not be required."
The County admits the conversation, but says Searle made an incorrect
assumption about what Faria meant: "Faria told Supervisor Searle
that he intended to build 'some pens' on the west side of Kansas
Settlement Road (on the Subject Parcel) and wanted to know if he needed
a permit to do so. Supervisor Searle, who is a lifelong cattleman
and former agricultural lender, understood him to mean working or
holding pens to be used in conjunction with a grazing operation, not
feeding pens or a feedlot. Based on that understanding,
Supervisor Searle told Faria that as long as it was part of his grazing
operation, pens would be considered general agriculture and would not
need a permit.... This discussion lasted less than a
minute. Faria did not tell Supervisor Searle that the pens would
be used for feeding cattle or about building a feedlot."
After Searle said a special permit would not be needed, the Farias went
ahead without asking permission from the zoning department. They
built pens on 40 acres next to 300 acres of pasture. The pens are
used for supplementally feeding the heifers, which are continuously
moving between pasture and pens.
The pens are arranged in two rows, each about a half mile long.
Between the rows is a lane where trucks drive to spread food into both
rows. Outside the rows are troughs that collect urine, manure,
feed, and refuse of all kinds, and channel it to a detention basin at
the far west of the Farias' property. The basin also collects
runoff stormwater. The county says the basin is not "built to
drawing standards, and is not connected to an irrigation system that
would carry a run-off and water mixture."
Many neighbors complained about smells, flies, dust and light pollution
after the heifer operation was built. One neighbor said "[a]s
ranchers, we are very familiar with the odors associated with
cattle. However, even with this background, the Faria operation
has produced odors so bad that it is unbearable to spend time
outdoors." The judge said "awful and sometimes overpowering odors
and stench, and dust, and swarms of flies, are regular problems.
The impact is real and quite severe at times." The County says
"[t]he problem is not just that the 3,000 heifers add to the smells,
flies and dust from the existing dairy operation, but also that it is
located much closer to residences than the dairy" and "the size,
dimensions, and orientation of the half-mile of pens means a much
larger 'vector' for winds to blow the smells, flies, and dust toward
the neighbors' residences."
However, not every nearby resident complained, and the Farias argue
that the County provided no evidence showing that the impact of their
dairy operation on neighboring landowners is different in nature or
kind from any dairy's impact -- different in size, perhaps, but not in
nature or kind. The Farias add that they produced evidence
showing that they generally employ the best available measures to limit
the odors and flies associated with raising cattle and dairy farming,
and that the County did not produce any evidence otherwise.
Because of the County's failure to produce evidence, the appeals court
may be forced to choose between allowing the heifer pens, or letting a
county shut down pens that, with no evidence to the contrary, must be
found to be following the highest standards of sanitation.
On January 24, 2007, the zoning department sent the Farias a notice
stating that they were operating a "commercial feed lot," and must
either apply for a Special Use Permit or rezoning, or remove the
improvements. On March 22, the Farias chose to apply for a
Special Use Permit for a commercial feed lot.
The Planning & Zoning Commission held a hearing on May 9,
2007. Based on personal notes (this author attended the meeting
and spoke against the dairy), one Commissioner kept calling the heifer
operation a feed lot, until the Farias' attorney said "I guess if you
want to call it a feed lot, we'll call it a feed lot. I just
don't think it meets the standards of a feed lot, truly.... I
guess it is better off if we call it a feed lot, then, so it's a feed
lot, thank you." That commissioner answered "That would make me
not grin every time ...."
Also, the Farias' attorney said flatly "There are no flies" at the
dairy. This contradicted what neighbor after neighbor said:
the flies were thick. The chairwoman noted that many of the
neighbors were from families that had been farming and ranching for
generations, were used to being near cattle, and were unlikely to
complain unless conditions were really bad.
The County website does not currently post the minutes of that meeting online, but a copy is posted at
According to the minutes, the Farias' then-attorney stated that Mr.
Faria "had discussed his plan with a County Supervisor and was told
that what he wanted to do did not require a permit. Commissioner
Basnar asked who gave the approval from staff. Mr. Elston [the
attorney] explained it was not staff, it was a County Supervisor.
Mr. Basnar asked if that had been confirmed. Judy Anderson,
[then] Planning Director, explained that the County Supervisor had
misunderstood and he did not understand that it was a feedlot.
Commissioner Walters stated that he had spoken with the Supervisor and
stated that the Supervisor had misunderstood, and he felt it was a
misunderstanding on both parts. Commissioner Wendell stated he
had concerns if the applicant had been misled by a County
official." Just before the Commission voted, "Commissioner Basnar
stated he ... feels they need to know if Mr. Searle gave him [that is,
Sebastiao Faria] the incorrect information."
The Commission voted 5-0 to deny a permit (four Commissioners were absent).
The Farias appealed to the county Board Of Supervisors, and the hearing
was held on July 10, 2007. The minutes are online at
Early in the Board hearing, there was a discussion between the Farias'
then-attorney (who is not conducting their appeal), the attorney who
advised the Board during this meeting (Britt Hanson, who is the
County's attorney in the pending appeal), and Chairman Searle (the
supervisor who told Sebastiao Faria he did not need a county
permit). According to the minutes, Searle decided that "the
consideration before the Board is the appeal of the Planning and Zoning
Commissions’ decision, not the determination of agricultural
exemption, nor the status of the parcel as a commercial feedlot."
The matters Searle excluded have turned out to be key issues in the
At the end of the hearing, according to the minutes, Searle stated that
"he had been in the agricultural business for many years, and
understands all that goes with it. Even though he supports agriculture,
he must consider the recommendations of the Planning and Zoning
Commission as they are responsible for the orderly growth of the
county; and he must also consider the neighbors concerns."
Patrick Call, the other supervisor in attendance, said "he had toured
the dairy operation, and was very impressed with the professionalism,
the use of technology, and the location. However, he was concerned that
the feeding operation had begun without thorough investigation, was not
very well run, and placed a burden on the immediate community. He also
considered the opposition of the neighbors to be overwhelming."
Searle and Call both voted against the dairy.
The Farias did not immediately stop the heifer operation. On
September 6, 2007, the County filed a complaint in court, seeking an
injunction because the Farias were operating a "commercial pen-feeding
operation" in violation of County zoning regulations, and the operation
was a public nuisance.
In September 2007, after the complaint was filed, the Farias stopped
using the Subject Parcel for a heifer operation. However, in
February 2008, the Farias resumed that use.
On February 19, 2008, the County filed an amended complaint that
changed the allegations against the Farias. The new allegations
were that the heifer facility was not a "general agricultural purpose"
pursuant to ARS 11-830(A)(2), but was a "commercial feed lot" or "other
like business" pursuant to 11-821.01(A) and therefore was subject to
county zoning regulations.
The Farias filed counterclaims. Both sides moved for summary
judgment in their favor. A motion for "summary judgment" is a
request for a judge to deny an opponent's claims without going to
trial. Only certain evidence is allowed in support of a motion
for summary judgment: basic filings, like the complaint, which
set out claims and defenses; answers to certain types of questions
asked during the case; and sworn affidavits by persons with knowledge
of the facts. If such evidence "shows that there is no genuine
issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law," then the judge should grant summary
judgment. It's a way to avoid an actual trial, but only if the
evidence is very strong.
On July 24, 2008, Judge Stephen Desens granted the County's motion for
summary judgment on its complaint, fined the Farias $750 plus $50 per
day starting then, and issued an injunction against continuing the
heifer operation on the Subject Parcel.
However, the judge denied some of the County's motions, and he also
granted judgment against three of the Farias' counterclaims, but not on
the fourth counterclaim, a counterclaim for $1 million or more, based
on the Farias' detrimental reliance on Supervisor Searle's telling
Sebastiao Faria he didn't need a county permit.
Both sides appealed different parts of the judge's decision. The
Farias appealed the grant of an injunction against them, and the County
appealed "those portions of the Decision ... adverse to the county,"
including the judge's order "striking" -- excluding from use in the
case -- an affidavit by James Vlahovich, the Deputy County
Vlahovich's affidavit requires special mention. Affidavits are
basically sworn statements of facts that a witness personally
observed. Only expert witness are allowed to put conclusions into
affidavits. Vlahovich's affidavit opens "I am employed by Cochise
County as Deputy County Administrator and have served in that capacity
since January, 2006. Prior to that, I was Planning Director for
the County for over 13 years." That does not qualify Vlahovich as
an expert in any field, much less law, yet his affidavit is five pages
of second-hand information, and instructions to the judge on how to
read the law. The presumptuousness of preparing and filing such
an affidavit, and appealing when the judge tossed it out, is
On November 8, 2008, the appeals court dismissed the County's
cross-appeal without explaining why (it may have been obvious to the
Court that the County's cross-appeal was premature). The only
matter accepted for appeal is the Farias' appeal from the
injunction. Until that is decided, the trial court will take no
action on the Farias' counterclaim for $1+ million dollars. The
attorneys will make oral arguments to the appeals court on May 20,
2009. Each side has 25 minutes. Some weeks or months after
oral argument, the appeals court will issue a written decision.
An appeal of that must be to the state Supreme Court.
B. HOW THE ARGUMENTS APPEARED BEFORE THE APPELLATE DECISION CAME OUT
1. IS THE HEIFER OPERATION A "GENERAL AGRICULTURAL PURPOSE"?
a. At the July 10, 2007, hearing at the Board Of Supervisors, the
Farias relied on ARS 11-830(A)(2), which says "Nothing contained in any
ordinance authorized by this chapter shall ... [p]revent, restrict, or
otherwise regulate the use or occupation of land or improvements for
railroad, mining, metallurgical, grazing or general agricultural
purposes, if the tract concerned is five or more contiguous commercial
acres." The "any ordinance authorized by this chapter" language
includes all ordinances authorized by 11-801 through -877.
The Subject Parcel is over five contiguous acres, and is used to raise
livestock, so the Farias argue that their use is a "general
agricultural purpose" within the meaning of 11-830(A)(2), and exempt
from zoning regulation by the County, period.
Though 11-830(A)(2) says "general agricultural purposes," it does not
define that phrase. The judge found that "The commonly understood
meaning of 'general agricultural purposes' includes the raising of
livestock (cattle) which is consistent with the county's definition of
'agricultural, general' which in Section 203 of the Zoning Regulations
defines the same in part as being '...the grazing or raising of farm
11-830 was amended seven times from 1972 through 2007. The 1972
amendment matters to this case: it changed 11-830's agricultural
exemption from county zoning regulations from "not less than two" to
"five or more" contiguous commercial acres.
Instead of directly addressing the words of ARS 11-830(A)(2), the
County argues "whether large industrial agri-businesses, such as
Appellants' pen feeding operation, can be located anywhere the owner so
desires, regardless of the impact from the smells, flies and dust, free
from any county zoning regulation." The Farias argue that "[t]he
County's failure to address, or even acknowledge, [830A2's] statutory
language betrays the weakness of its legal arguments...."
In the judge's rulings of July 24, 2008, he stated that ARS 11-830
"does not exempt all agricultural uses[,] just 'general' agricultural
land uses." That is, he found the heifer operation to be an
agricultural use, but not a general agricultural use.
b. The Farias cite the 2003 "Braden Trust" case, in which the
other of Arizona's two appellate districts had to determine whether
housing for farm workers in Yuma County was exempt from county zoning
and building codes. The court began "by noting that the terms
used in [11-830A2] are quite broad in their scope and application," and
that though "general agricultural purposes" is not defined in the
zoning statutes, "other statutes illustrate the broad scope of the
concept," and so do dictionary defintions, and decisions from other
states. The court concluded that under 11-830(A)(2), farm worker
housing "is exempt from the requirements of the [c]ounty's zoning and
building codes." The Farias agree, and would read "general
agricultural purposes" as broad enough to include raising heifers.
The County responds that "the Court in 'Braden Trust' construed [that
is, interpreted] both [830A1] and 11-865. It is not clear why the
Court did so, since the issue in the case was whether the building
codes applied to farm worker housing. In any event, 'Braden
Trust' did not involve land use as it affects neighboring property
owners or the public. Nor did 'Braden Trust' involve the
Legislative mandate to zone the kinds of agricultural uses specified in
[821.01]." The County's argument is not so much a refutation of
the principle stated in "Braden Trust," as a list of possible ways to
distinguish its facts from ours.
The Farias argue that "The County argues that 'Braden Trust'
incorrectly relied on [830A1] to hold that farm worker housing is
exempt from county building codes." If the appeals court takes
the County's argument as a sideways attack on "Braden Trust," the court
might be reluctant to go along with the County.
c. The Farias cite definitions in standard dictionaries; cases
from other states; Arizona's Agricultural Protection Act, defining
"agricultural operations" to include "all activities ... conducted on
any facility for the production of crops, livestock, poultry, livestock
products or poultry products;" Arizona's employment security statutes,
in which "agricultural labor" includes services performed on a farm in
connection with raising any agricultural commodity, "including the
raising, shearing, feeding, caring for, training and management of
livestock;" and "Hight v. Industrial Commission," a 1934 Arizona
Supreme Court case which found it "very persuasive" that "[e]very
standard authority that defines the word 'agriculture' includes ... the
rearing and care of live stock," and concluded that "one employed to
look after and care for cattle is an agricultural worker."
The County criticizes the Farias as "pluck[ing] definitions of
agriculture from contexts other than land use, pars[ing] words to fit
the results they desire, and end[ing] up with an expansive definition
with drastic consequences: every homeowner, every residential and
commercial developer, and every property owner will be subject to the
risk that a feedlot or like business could move in next door,
inflicting a plague of flies, odors and dust -- all despite the fact
that the Legislature clearly has mandated that they be subject to
county zoning." That argument appears overbroad, since lots
larger than five acres, onto which feedlots or the like could move, are
rare in many residential areas.
The County argues "[t]here is little to be gained by lifting statutory
definitions of agriculture from contexts other than land use ....
What the Legislature might have intended when defining it in the
context of agricultural labor ... can be far different than when
defining it for purposes of land use. Perhaps ... these 'other
statutes illustrate the broad concept' of the 'general agricultural
purposes,' but the Legislature quite clearly did not intend for
agriculture to be unfettered by regulation."
The County cites a particular example: "in [49-201] the
Legislature defines 'regulated agricultural activity' to include
'concentrated animal feeding operation,' such as [the Farias'], so that
they are subject to state permitting in order to regulate pollutants
generated by such operations." The Farias reply that "this
regulation by the State undercuts, rather than supports, the County's
claim that the legislature intended counties to regulate the public
health aspects of agricultural uses through their zoning ordinances" --
that is, that the state gave regulatory power to itself implies that
the state did not wish to give regulatory power to counties.
d. The Farias offer arguments about the word "general."
The Farias note that the County now says "[t]here is nothing in the use
of the word 'general' to suggest that the legislature intended to
narrow the application of [830A]," but that "this interpretation did
not become apparent to the County until this litigation was well under
way. In proceedings before the County zoning authorities, the
County took the position that the Farias' heifer pens were subject to
zoning regulation as a commercial feed lot.... In its Complaint
[in the trial court], the County alleged that the heifer pens
constituted 'commercial pen feeding,' a term that is not defined in the
County Zoning Regulations.... It was not until the County filed
its Amended Complaint that it raised the argument that [821.01] limited
[830(A)] instead of the other way around."
The Farias also cite Webster's Third New International Dictionary
(2002), and argue that the legislature's use of "general" indicates a
broad intent for the agricultural exemption to include all agricultural
purposes -- that there is nothing in the legislature's use of "general"
to suggest that the agricultural exemption should be limited to
specific agricultural purposes.
The County says the legislature meant "general" another way:
"[i]n the context of land use, the Legislature has chosen to use
'general' as a modifier of 'agriculture,' indicating that it did not
intend to exempt every conceivable agricultural use.... [The word
'general'] was intended in the same way we use 'general rule' or
'general procedure': generally, this is the rule, or generally,
this is the procedure, but the rule or procedure does not apply in
every circumstance; in some instances, more specific rules will
apply. In this particular instance ... the Legislature has left
no doubt about a more specific rule: feedlots and like businesses
are subject to county zoning."
The Farias reply by citing actual legislative history: "[t]here
is no evidence of a legislative intent to limit the scope of the
agricultural exemption. Instead, the available legislative
history of [830(A)] suggests otherwise. In 2001, [830(A)] was
amended ... to add an exemption for agricultural composting. [ARS
11-830A3]. In the House Summary of the Bill, the history and
purpose of [830(A)] was explained as follows: '... For
counties, current law exempts existing property uses and uses of land
for railroads, mining, grazing, or agricultural purposes from
regulation by county ordinance.'... This report suggests that
[830(A)] was intended to mean what it says.... Within
unincorporated areas of a county [830(A)] provides an exemption for
existing property uses and for the use of larger tracts of land for
railroads, mining, grazing or agricultural purposes. There is no
evidence of a hidden legislative agenda for the word 'general' to
create a broad exception to the agricultural exemption for those uses
identified in [821.01]."
e. The County seems to argue that two items in any list must be
completely distinct: "Although the Legislature has not defined
'general agriculture,' it has [elsewhere] made clear what kinds of
agriculture are not exempt from zoning regulations, including feedlots
and other large industrial agri-businesses. Consequently, the
Legislature could not intend such an operation to be exempt as a
'general agricultural purpose'."
The County also argues that "the exemption from building codes set
forth in [11-865] illustrates the perils to the [Farias] of referencing
other definitions. That exemption applies to 'farming, dairying,
agriculture...or stock...raising.' If we attempted to gain
meaning from this definition in interpreting the agricultural exemption
in , we would conclude that the Legislature thinks of farming,
dairying and stock raising as activities separate from 'agriculture'."
The Farias reply that "[t]he County's reliance on [11-865] is also
misplaced.... If anything, the broad exemption from county
building codes reinforces the legislative purpose of 'limiting
governmental controls on farm property' [as stated in "Braden Trust."]"
2. IS THE HEIFER OPERATION "LIKE" A COMMERCIAL FEEDLOT?
a. Recall that the trial judge found that the Farias are "not
operating a 'commercial feedlot' as defined by the County's Zoning
Regulations nor does the County have a specific definition for what the
[Farias] are doing on the Subject Parcel incidental to their dairy
operation." The appeals court might ask some questions about the
propriety of the County's trying to regulate an activity that the
County hasn't first defined.
b. The judge's order found that the "pen feeding of the heifers
located on the Subject Parcel is in fact an 'other like business(es)'
subject to Cochise County Zoning Regulations pursuant to [821.01], and
under the facts of this case is not exempt as 'general agriculture'
pursuant to ."
The text of 11-821.01(A) includes an actual list: it says county
zoning ordinances "shall designate and zone appropriate areas of
reasonable size in which there may be established with reasonable
permanency canneries, fertilizer plants, refineries, commercial feed
lots, meat packing plants, tallow works, and other like businesses
...." The judge's order did not recite that list, but said that
"The description of the business activities set forth in [821.01A] is
intended to be broader than those specifically set forth in the statute
since the term 'other like businesses' is part of the statutory
The Farias argue that the judge's order would let the County zone any
commercial business "which would have an obvious impact on adjoining
and nearby property owners," so that "any land use that produces odors,
noise, dust, light or even traffic is potentially subject to county
zoning regulation under [821.01]. That conflicts with the express
language of 11-830, ignores established rules of statutory
construction, and undermines the legislative intent "to aid agriculture
c. The County argues that "the Legislature ... in [11-821.01],
made clear what kinds of agriculture are not exempt from zoning
regulations, including feedlots and other large industrial
agri-businesses," and "mandated that 'counties shall designate and zone
appropriate areas' for 'canneries, fertilizer plants, refineries,
"commercial feed lots," meat packing plants, tallow works, "and other
like businesses...."';" that "[t]reating the words 'commercial
feedlots', 'like businesses' and other terms used in the statute as
though they do not exist would violate the rule of statutory
construction that no clause, sentence, or word should be rendered
superfluous, void, contradictory, or insignificant;" and that "[t]here
is no dispute that at the very least the [Farias'] use of the parcel is
a 'like business' -- the pen feeding operation looks like a feedlot and
smells like a feedlot. [The Farias'] use therefore is subject to
The Farias argue that "[u]nder the County's 'smell test,' any farming
operation that raises horses, cattle, hogs or poultry, or that uses
sludge, manure or pesticides, would be subject to zoning
regulation." The Farias add that "nearby residents ... being
adversely and negatively impacted" by odor, flies, and dust are not
unique to their operation, and that any large-scale dairy or livestock
operation will generate some odor and flies, and any large-scale
farming operation will generate dust and odors. The Farias note a
Pennsylvania case ruling that a local ordinance could not be reasonably
construed to allow prohibition of a farm merely for generating odors or
dust, because "[s]uch a construction would completely nullify and
destroy the entire agricultural provision" of the state scheme;
"[e]very farm gives off odors of manure, cattle, ... fertilizer etc.,
all of which are offensive to the uninitiated nostril. Such aroma
is 'the usual' in agricultural areas." The Farias argue that
"when the legislature amended the statute in 1991, it described the
zoning requirements mandated by [821.01] as 'county industrial
zoning.'... This suggests a legislative intent that the
identification of 'other like businesses' does not depend upon whether
they impact neighbors or smell bad, but whether those businesses are
industrial in nature." The Farias cite a very terse Massachusetts
case: "[t]he test is whether the use is agricultural and not
whether it is detrimental."
d. The Farias argue "[u]nder the County's interpretation of
[821.01] ... it could also regulate the portion of the dairy used for
milking cows or for dry cows on the theory that those areas, to the
County at least, look and smell like a commercial feedlot. At a
minimum, the heifer pens on any large dairy located in an
unincorporated area of the State would be subject to county zoning
regulation .... This is contrary to the intent of [821.01] to
require counties to provide zoning for industrial rather than
agricultural uses. This conclusion is supported by the County's
own zoning regulations. Based upon the legislative mandate to
designate and zone appropriate areas of reasonable permanency for
commercial feed lots, the County has enacted several regulations
providing for such uses. For example, [zoning regulation] 1402.08
... provides for "commercial feedlots, stockyards and auction barns"
[in] an HI zoning district [and regulation] 607.17 provides for a
"commercial feed lot, stockyard, and livestock auction barn ... in an
RU zoning district. The County's Zoning Regulations, however, do
not designate or zone any areas for dairy farms. The reason for
this is apparent. Because dairy farms are not industrial uses,
the County has never recognized a legislative mandate to zone for them
as 'other like businesses' pursuant to [821.01]."
e. The Farias cite 11-830(G) [the Farias write "(E)" but mean
"(G)")], which specifically creates an exception from 11-830(A)(2) for
the use of land for "changing, remanufacturing, or treating human
sewage or sludge for distribution or resale." Surely processing
human sewage is as potentially obnoxious as the businesses specifically
listed in 11-821.01, so under the "other like businesses" reasoning, a
county would not need a statute to regulate a plant treating human
sewage. Since the legislature felt it necessary to separately
enact 11-830(G), the "other like businesses" reasoning must be
f. The Farias argue that the "other like business" language in
11-821.01 is "vague and ambiguous, and therefore, fails to support the
County's central claim that the language of this statute is somehow
more specific than the exemption for 'general agricultural' uses in
[830A2];" and that "because the statutory language is vague and
uncertain, it must be construed against the county" so "it is improper
to infer that the reference to 'other like businesses' in [821.01] was
intended to provide counties with broad zoning authority over otherwise
exempt agricultural uses."
3. CAN THE TWO STATUTES MENTIONING "GENERAL AGRICULTURAL PURPOSE" AND "LIKE" BE RECONCILED?
a. The judge wrote that 11-830(A)(2) and 11-821.01 "under the
facts of this case do not conflict with one another.  does
not exempt all agricultural land uses just 'general' agricultural land
uses," and 11-821.01 "was enacted by the legislature after the
exemption for 'general agricultural purposes' was already the law and,
consequently, it would be error ... to presume that the statutorily
mandated zoning of these 'like businesses' would be subsumed under the
term of 'general agricultural purposes' without regard to the location
of the operation and the facts and circumstances of the situation ...."
The Farias argue that there is no conflict between 11-821.01(A)'s
requiring county regulation of certain uses, and 11-830(A)(2)'s
prohibiting county regulation of certain uses on large tracts of
land. To the contrary, both statutes advance a common interest in
protecting certain uses of property.
The Farias argue that "[t]he centerpiece of the county planning and
zoning statutes is .... [821.01] supplements the
requirements of . It requires the county ... to designate
and zone appropriate areas of reasonable size and permanency for
certain industrial uses .... [830A], on the other hand, provides
restrictions on county zoning regulation. It states that nothing
contained in 'any ordinance' ... shall regulate certain uses....
Subsection (A)(2) prevents regulation of the use or occupation of land
or improvements 'for railroad, mining, metallurgical, grazing or
general agricultural purposes, if the tract concerned is five or more
contiguous commercial acres."
The Farias continue: "Many elements of county planning and zoning
are mandatory ... but all are subject to the 'restriction on
regulation' provided by [830A]. There is no basis to infer a
legislative intent to create an exception to [830(A)] from the
mandatory language of [821.01]."
To show how long it has been accepted that one statute merely
supplements the other, and that the County is turning legal
handsprings, the Farias cite a 1973 article, "Public Regulation Of
Private Land Use In Arizona," which states: "Special provisions
in the county planning chapter protect certain activities. For
example, the county must establish districts where such uses as
canneries, fertilizer plants, refineries, feed lots, packing plants and
tallow works may be located. However, the county cannot regulate
or restrict the use of land for railroad, mining, grazing or
agricultural purposes if the tract involved is five or more contiguous
The County says its own argument is the straightforward one:
"[t]he present case can be decided in a straightforward way by
excluding 'commercial feedlots' and 'like businesses' from 'general
agricultural purposes.' Alternatively, the Court could conclude
that the [Farias'] pen feeding operation might otherwise have fallen
within the exemption for 'general agricultural purposes,' but that this
must give way to the more specific Legislative mandate that counties
zone for 'commercial feedlots' and 'like businesses.'"
b. The County describes the Farias as "arguing that either [the]
exemption for general agriculture guts the Legislative mandate in
[821.01], or that the two statutes can be harmonized with a technical
distinction that the agricultural exemption applies on to parcels that
are at least five commercial acres, while [821.01] applies only to
parcels that are smaller than five commercial acres."
The County argues that the five-acre test "makes no sense. It
would mean that the Legislature mandated that counties zone very small
feedlots and like businesses, but not larger, more obnoxious
ones.... Clearly, the evil sought to be remedied by this
legislation is not solely uses on small lots. [The Farias']
reading would nullify the obvious Legislative intent of [821.01] to
regulate large, smelly, obnoxious uses. It would also require the
Court to add language to [821.01], limiting its scope to parcels less
than five acres [and] to ignore the more obvious purpose of the five
acre requirement of the exemption of 11-830A. Limiting this
exemption to parcels that are five commercial acres or larger ensures
that a homeowner cannot simply put a cow in his yard and claim an
agricultural exemption for grazing .... the use must be commercial,
with an investment in a fairly large parcel (greater than five acres),
not a homeowner who occasionally sells a cow, a few eggs or several
The Farias respond that "[t]he County dismisses the five-acre
limitation ... as a mere 'technical distinction.'... Whether it
is technical or not, this distinction was drawn by the legislature and
represents the legislature's judgment regarding the proper balance
between competing public interests.... There is no basis for the
County to ignore the express language of [830A2] as a matter of
c. The judge found that 11-821.01 is "a more specific statute enacted subsequent in time" to 11-830.
i. The Farias argue that the statute needs no interpretation,
since the legislature has already determined the relationship between
11-821.01 and -830: 11-830(A) says that "[n]othing in any
ordinance" authorized by the county zoning statutes shall restrict or
regulate the use of property subject to the agricultural
exemption. This necessarily includes the zoning ordinances
required by 11-821.01. That is clear and should not be repealed
The County says it would "harmonize [821.01] with  in accordance
with well-established rules of statutory construction. As a
result, 'general agriculture' is defined by excluding from it the
industrial agricultural uses that the Legislature has specified must be
regulated. This avoids any conflict between the two
statutes. This also makes sense in light of the fact that
[821.01] was enacted subsequent to the agricultural exemption in
. The Legislature apparently did not view these statutes as
in conflict when it mandated [that] counties regulate commercial
feedlots, other industrial agricultural uses, and 'like businesses.'"
The County argues that the Farias' "claim that the agricultural
exemption guts [821.01] has no arguable merit. No existing rule
of statutory construction supports it, and every rule of statutory
construction reinforces the obvious -- that a more specific statute,
enacted later in time, must be given the plain meaning intended by the
ii. 11-830 was enacted in 1949, and 11-821.01 in 1963. The
County argues that the legislature is presumed to have known about
11-830 when it enacted 11-821.01, so either the Legislature did not
believe that mandating county zoning of feedlots and the like
contradicted the exemption for "general agriculture," or the
Legislature intended the newer statute to override the exemption "to
the extent [that] the exemption might otherwise include commercial
feedlots, canneries, fertilizer plants, tallow works, meat packing
plants and like businesses."
The Farias note that the County is under a misapprehension about
dates. The original version of 11-830 was enacted in 1949, and
the original version of 11-821.01 in 1963, but 11-830 has been amended
seven times since 1963. The 1972 amendment changed its
agricultural exemption from "not less than two" to "five or more"
contiguous commercial acres. The legislature has never limited
11-830's agricultural exemption by excluding the specific uses
identified in 11-821.01(A). In short, the Farias are not trying
to undercut later enactments, they are relying on them.
The County characterizes this argument as "the Legislature has tinkered
with  seven times since  was enacted in 1963. [The
Farias] then argue that this must mean that the Legislature had several
opportunities 'to limit the broad scope of the agricultural exemption
to exclude the specific uses identified in ' but did not do
so.... However, a more obvious explanation is that the
Legislature simply did not view the specific uses listed in  as
falling within the exemption for general agriculture, so there was no
need to limit the agricultural exemption when tinkering with ."
The Farias reply that "[u]nder the County's reasoning, it could adopt
zoning for canneries, fertilizer plants, refineries and other
industrial uses that would require existing businesses to move or shut
down," but that "[t]he Court will not construe statutes to produce an
iii. As to the judge finding 11-821.01 "more specific," the County
argues that mandating counties to zone feed lots and like businesses is
so specific that it controls over the statute establishing an exemption
for "general agricultural purposes.
The Farias respond that 11-830(A)(2) creates a broad exemption in the
coverage of other statutes, no matter how specific they are. For
instance, in "Braden Trust," Yuma County had passed some very specific
ordinances about housing for farm workers, but the appellate court
found the exemption in 11-830(A)(2) "quite broad in [its] scope and
application," upheld the exemption, and found that the housing was
exempt from the ordinances.
d. The Farias argue that "[t]he County's argument also raises the
practical problem that it is not clear which county zoning regulations
are purportedly based upon the duty to zone imposed by [821.01].
This confusion is complicated by the County's broad definition of 'like
other businesses' as those that seem smelly or otherwise offensive to
neighboring homeowners. As a practical matter, there is no way of
identifying which county ordinances would override the agricultural
exemption and which would not."
e. The County sees a more fundamental problem with the Farias'
argument: that it "presumes the land uses specified in [821.01] are
'exceptions' to the exemption for general agriculture. This
presumes that the Legislature ever intended for commercial feedlots,
canneries, fertilizer plants, refineries, meat packing plants, tallow
works and other like businesses to fall within the exemption for
general agriculture. A more obvious interpretation is that the
Legislature never intended the uses specified in [821.01] to fall
within the exemption for agricultural purposes."
f. The Farias' Opening Brief and Reply Brief raise some issues that the County does not discuss at length.
"Right to farm" laws exist in every state, curtailing nuisance actions
against agricultural operations, or limiting local governments' ability
to regulate agriculture through zoning. Arizona has such
statutes, constituting "an implicit legislative attempt to aid
agriculture." In communities going through urbanization,
agricultural landowners usually have less political clout than
non-agricultural landowners, so the legislature has given agricultural
users of large tracts in unincorporated areas some protection from
county regulation via zoning.
Zoning laws are interpreted in light of their purpose when
enacted. "Braden Trust" held that "[g]iven the broad language of
the statutes at issue, it is clear that the legislature has decided to
favor agriculture by limiting governmental controls on farm
property." That purpose is furthered by applying 11-830(A)(2)'s
express restriction on county zoning regulations.
Arizona is the 13th largest dairying state. The "ruling -- that
the agricultural exemption does not apply to feeding heifers -- has
profound implications that extend far beyond the immediate
parties. Feeding and raising heifers is an essential element of
dairy operations. Therefore, the practical effect of the ...
ruling is to subject all large dairy farms located in unincorporated
areas of the State to local zoning regulation.... In view of the
implicit purpose of [830A2] to protect agriculture, this dramatic
expansion of county zoning authority should not be inferred based
solely on the legislature's innocuous use of the term 'general' to
describe the agricultural purposes exempt from county zoning
Ultimately, it is the legislature's duty to determine whether large
agricultural properties in unincorporated areas are subject to county
zoning regulation. "It is not in the court's power to change
legislative enactments.... 'The questions of the wisdom, justice,
policy or expediency of a statute are for the legislature
alone.'... If residential dwellings are to be excluded from the
application of the statutory exemption, that change must come from the
legislature." The same rule should apply here. If
heifer-raising operations are to be excluded from the statutory
exemption, that change must come from the legislature, not from a judge.
C. THE APPELLATE DECISION
Here is a rewrite
-- slightly rewritten for greater clarity
-- without citations to uncontested principles of law
-- with simplifications of citation style
-- without all the details in the citations to legal authorities
-- with footnotes moved as close as possible to the relevant text
-- with Sec. and Para. abbreviations used instead of symbols
This is just a quick report, not an analysis.
Appellants Sebastiao Faria and Maria Faria, dba Faria Dairy, appeal from
the trial court's order granting summary judgment to appellee Cochise
County, and enjoining the Farias from using a parcel of land for a
heifer pen-feeding operation.
The Farias claim it was error for the trial court to rule that their use
of the parcel was not exempt from county zoning regulation as a "general
agricultural purpose" under ARS Sec. 11-830(A)(2), and that ARS Sec.
11-821.01(A) authorized the county to regulate their use of the property.
Viewing the facts in the light most favorable to the Farias, and drawing
all reasonable inferences arising from the evidence in favor of the
Farias, we conclude that uses included under Sec. 11-821.01 are not
"general agricultural" uses under Sec. 11-830, and we affirm the trial
The Farias own real property on each side of Kansas Settlement Road in
Cochise County. In 2003, they began operating a dairy farm on the
parcel east of the road, that is zoned HI (Heavy Industry). In 2006,
the Farias constructed feeding pens on the parcel west of the road, that
is zoned RU-4 (Rural District, minimum site area four acres). The
feeding pens consist of two parallel rows of pens about a half mile
long. Troughs run through the pens to channel urine, manure, feed and
detritus into a detention basin. (Note 1: The structural description
of the feeding pens is taken from the county's statement of facts filed
with its motion for summary judgment. The Farias moved to strike
material offered in support of the county's statement, but they withdrew
their motion, and never disputed the accuracy of the facts alleged.)
The Farias began using the west parcel to raise heifers born on the
dairy farm. The pens are used for supplemental feeding of the heifers,
which are also permitted to graze on about 300 acres of adjoining land.
Most heifers raised on the west property are eventually transferred back
to the dairy farm for use as milk cows. Approximately 3,000 heifers are
being raised on the west property at any given time.
Para. 3 The County Planning Department sent the Farias a notice of
zoning violation for operating a commercial feed lot without a permit.
The Farias applied for a special use permit, which was denied. The
Farias appealed to the County Board of Supervisors, contending that they
did not need a special use permit because the use of the feeding pens
was a "general agricultural purpose" under Sec. 11-830(A)(2). The
Farias asserted that they were not waiving this position, but wished to
proceed with the appeal to try to obtain a special use permit and
thereby avoid further litigation. The Board of Supervisors denied the
appeal. The Farias continued to operate the pen-feeding facility.
Para. 4 Later the county sued the Farias, alleging violation of a
zoning regulation, and requesting an injunction. The Farias
counterclaimed. Each party moved for summary judgment. The trial court
denied the Farias' motion, found the heifer feeding was a "like
business" under Sec. 11-821.01(A), granted the county's motion, and
enjoined the Farias from using the property as a "pen feeding operation
for its heifers."
Para. 5 The Farias argue that the trial court erred in granting summary
judgment against them and enjoining them from using the property for
pen-feeding. They contend that the pen-feeding facility is a use for a
general agricultural purpose, therefore exempt from county zoning
regulation, under either of Secs. 11-830(A)(2) or 11-821.01(A).
Para. 6 Summary judgment is proper when "there is no genuine issue as
to any material fact and the moving party is entitled to a judgment as a
matter of law." We review "from scratch" whether there are any genuine
issues of material fact, whether the trial court applied the law
properly, and any questions regarding the construction of statutes. As
to a trial court decision to grant injunctive relief, we review that not
de novo, but for an abuse of discretion. A court abuses its discretion
if its decision is based on an incorrect interpretation of the law.
Para. 7 The power of a county board of supervisors derives solely from
state statute. When a county enacts zoning regulations, it must "adhere
to the state statutes which delegate that power." The relevant statutes
are in Title 11 of the Arizona Revised Statutes. The legislature
enacted Secs. 11-821 and 11-830(A)(2) in 1949.
Sec. 11-821(B) directs counties to adopt plans for zoning "various
classes of residential, business and industrial uses."
Sec. 11-830(A)(2) provides that nothing "in any ordinance authorized by
this chapter shall ... [p]revent, restrict or otherwise regulate the use
or occupation of land or improvements for ... general agricultural
purposes, if the tract concerned is five or more contiguous commercial
acres." The legislature did not define "general agricultural purposes."
Para. 8 In 1963, the legislature added 11-821.01, entitled "Duty to
zone certain area for canneries, fertilizer plants, refineries,
commercial feed lots, meat packing plants, tallow works, and other like
businesses." 11-821.01(A) states in relevant part:
The county planning and zoning commission shall designate and zone
appropriate areas of reasonable size in which there may be established
with reasonable permanency canneries, fertilizer plants, refineries,
commercial feed lots, meat packing plants, tallow works, and other like
businesses, and the county board of supervisors shall by ordinance adopt
at least one of any such plans as may be submitted by the commission to
the board for the location of such businesses.
The legislature did not define or provide a test for "other like
Para. 9 When construing a statute, we must "determine and give effect
to legislative intent." We look first to the plain language of the
statute because that is the best indicator of legislative intent.
Because the legislature did not define "general agricultural purposes,"
Sec. 11-830 is ambiguous, so to interpret it we must "'consider [its]
context; its language, subject matter, and historical background; its
effects and consequences; and its spirit and purpose.'" "[E]ach word or
phrase ... must be given meaning so that no part is rendered void,
superfluous, contradictory or insignificant." When interpreting a
particular term, "'we apply a practical and commonsensical construction.'"
Para. 10 "We presume the legislature is aware of existing statutes when
it enacts new statutes." When "statutes relate to the same subject and
are thus in pari materia, they should be construed together with other
related statutes as though they constituted one law," "even where the
statutes were enacted at different times, and contain no reference ...
to [each] other." Statutes granting zoning authority to the counties,
and zoning ordinances enacted pursuant to that authority, will be
strictly construed in favor of property owners.
Para. 11 According to its plain language, 11-821.01 protects the types
of businesses listed by ensuring they have a zone within which to
operate. The wording in the title of 11-821.01, "[d]uty to zone," and
the wording in subsection (A), "[t]he county planning and zoning
commission shall designate and zone appropriate areas of reasonable size
... with reasonable permanency," show that the legislature created a
duty on counties to allow the types of businesses listed to operate
somewhere in each county. (Note 2: This analysis is slightly different
than that in the County's brief. The County treated 11-821.01 as though
it gave counties the authority to restrict the types of businesses
listed -- which implies that counties had no such authority before the
statute was passed. But 11-821 gives counties broad authority to
regulate land use, and no zoning statute except 11-830 exempts any
particular use from regulation. Thus, the types of businesses listed in
11-821.01 were subject to county regulation before it was enacted. At
oral argument, the county agreed with this interpretation.)
Para. 12 The "legislature [is] presumed aware of existing statutes when
enacting new one[s]," and if the legislature believed commercial
feedlots and like businesses were "general agricultural purposes" under
11-830(A)(2), then the legislature would not have needed to extend the
protection of 11-821.01 to commercial feedlots or businesses "like" them.
Para. 13 At oral argument, the Farias postulated that, because both
11-830 and 11-821.01 were designed to protect commercial feedlots in
some way, those statutes offered "redundant protection," and it would
not make sense to use one protective section to restrict another. But
the Farias could not offer, and we have not found, any authority for
letting this court interpret two related sections as redundant. Rather,
we assume that the legislature knew about existing law and did not enact
a redundant statute, and we interpret statutes so no part will be redundant.
Para. 14 The Farias' oral argument emphasized that the general
agricultural purposes exemption in 11-830(A)(2) includes the Farias'
use, and precludes application of any zoning ordinance, including
ordinances contemplated under Sec. 11-821.01. But because the
legislature has not defined "general agricultural purposes," we are
required to construe that statutory language.
Para. 15 Because "commercial feedlots" are uses of an agricultural
nature of some kind, their inclusion in 11-821.01 means that 11-821.01
and 11-830(A)(2) both relate to the same subject. Therefore, they must
be construed together "as though they constituted one law." To ignore
11-821.01 would divest the inclusion of "commercial feedlots" and "other
like businesses" in 11-821.01 of any effectiveness, which we cannot do.
Para. 16 Additionally, because 11-821.01(A) does not mention the size
of the parcel used, it does not support the Farias' argument that it was
intended only to protect commercial feed lots and like businesses of
less than five commercial acres. When 11-821.01 was enacted, 11-830
protected general agricultural uses of "not less than two contiguous
acres." The statutes would not comport with common sense if they
provided for regulation of feedlots on less than two acres (if such uses
even exist) but exempted much larger feed lots, of much greater concern
to neighboring land owners, from all zoning regulations.
Para. 17 Because we will not construe a statute to render any part
superfluous or nonsensical, we conclude that 11-830(A)(2) does not
protect commercial feedlots and like businesses, and that 11-821.01 was
enacted to do so. Accordingly we conclude that the legislature did not
intend "general agricultural purposes" in 11-830(A)(2) to include
commercial feedlots or businesses like commercial feedlots. (Note 3:
To the extent we are not interpreting 11-821.01 and 11-830 as the
legislature intended, the "legislature retains the power to correct us.")
Para. 18 Based on the foregoing, if the Farias' use of the property
constitutes a commercial feedlot or a business "like" one, then it is
not exempt from regulation under 11-830(A)(2).
The trial court found that the Farias' business was an "other like
business" under 11-821.01. The Farias did not factually dispute that
contention in the trial court, or in their opening brief on appeal.
Therefore, they have waived argument of this point.
Para. 19 We affirm the grant of summary judgment in favor of the
county, and the order enjoining the Farias from maintaining their pen
feeding operation on the subject property.
JOSEPH W. HOWARD, Presiding Judge