Enterprise Partners v. County of Perkins

In 1998, the Perkins County Board of Commissioners (the board) (defendant) voiced concerns to the Nebraska Department of Environmental Quality (DEQ) about proposals to build hog confinement facilities in Perkins County and the effects that they would have on the environment and public health. DEQ responded to the board by explaining the evaluation procedures and requirements necessary for a permit to be issued. The DEQ did not address the issues of odor and insects because the county, rather than the DEQ, had the authority to regulate those issues. The lagoons were used by confinement facilities to store and treat waste-produced odor, and by controlling odors, other problems such as flies could be avoided. The board subsequently passed an ordinance to regulate the use of these lagoons. The ordinance required that an owner or operator of a large livestock containment facility was not permitted to operate unless their waste storage facilities were covered. The ordinance also included that the county had the right to inspect sites to ensure compliance with the cover requirement. Enterprise Partners filed a petition for declaratory judgment, arguing that the ordinance was passed in violation of a Nebraska state law that required the board to have a county comprehensive development plan before adopting zoning regulations. The trial court ruled that the ordinance was not a zoning ordinance but was within the exercise of police powers granted to the counties by the legislature and was thus valid and enforceable. Enterprise appealed and argued that the trial court erred in not finding that the ordinance was a zoning ordinance passed in violation of Nebraska state law.