Thieman v. Cedar Valley Feeding Co.

Ted Thieman, an individual , appellee , v.
C edar valley F eeding C ompany, inC.,
a nebraska CorporaTion,
eT al ., appellanTs.
789 N.W.2d 714
Filed February 23, 2010. 	No. A-09-639.
1. Injunction: Equity: Appeal and Error. An action for injunction sounds in
equity. In an appeal of an equity action, an appellate court tries the factual ques-
tions de novo on the record and reaches a conclusion independent of the findings
of the trial court.
2. Zoning: Ordinances. A zoning regulation may not operate retroactively to
deprive a property owner of his previously vested rights.
3. Zoning: Ordinances: Proof: Time. The burden is upon the landowner asserting
a right of nonconforming use to prove that his use existed prior to the effective
date of the ordinance.
4. Zoning: Ordinances. Ordinances which limit and plan for the elimination of
nonconforming uses are generally considered a proper exercise of a municipal-
ity’s power.
5. ____: ____. Zoning laws should be given a fair and reasonable construction in
light of the manifest intention of the legislative body, the objects sought to be
attained, the natural import of the words used in common and accepted usage,
the setting in which they are employed, and the general structure of the law as
a whole.
6. ____: ____. Where the provisions of a zoning ordinance are expressed in com-
mon words of everyday use, without enlargement, restriction, or definition,
they are to be interpreted and enforced according to their generally accepted
meaning.
7. Judgments: Appeal and Error. Where the record adequately demonstrates that
the decision of the trial court is correct, although such correctness is based on a
ground or reason different from that assigned by the trial court, an appellate court
will affirm.
Appeal from the District Court for Boone County: miChael
J. owens, Judge. Affirmed.
Jeffery T. Peetz and Monica L. Freeman, of Woods &
Aitken, L.L.P., for appellants.
Gregory D. Barton, of Harding & Schultz, P.C., L.L.O., for
appellee.
inbody, Chief Judge, and irwin and Cassel, Judges.
302 	18 NeBrASkA APPeLLATe rePOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:12 AM CST

Cassel, Judge.
INTrODUCTION
In this appeal from a permanent injunction enforcing zoning
regulations against a livestock feeding operation, we first con-
sider whether the scope of a nonconforming use is dictated by
the physical capacity of the premises or the actual number of
cattle confined. We conclude that under the specific language
of the regulations, actual usage controls. We then review the
evidence de novo to determine whether such usage is limited
to 5,000 cattle, as the district court concluded, or a greater
number, as advocated by the operation. We find the evidence
supporting the lesser number more persuasive, and accordingly,
we affirm.
BACkGrOUND
richard Van Ackeren is part owner and manages the opera-
tions of Cedar Valley Feeding Company, Inc., and Van Ackeren
Farms, Ltd. Van Ackeren’s siblings own the remaining shares
of these two entities. The first entity is a cattle feeding com-
pany. The second owns and leases the land on which the feed-
ing operation is located. We refer to Van Ackeren and the two
entities collectively as “Cedar Valley.”
Ted Thieman owns real property in Boone County, where
Cedar Valley’s operations are located. Thieman filed a com-
plaint pursuant to Neb. rev. Stat. § 23-114.05 (reissue 2007)
as an “owner . . . of real estate within the district affected
by the [zoning] regulations” to request that Cedar Valley be
enjoined from violating the Boone County zoning regulations.
Thieman claimed that the regulations prohibit Cedar Valley
from having more than 5,000 cattle on its premises.
The zoning regulations, which became effective on October
1, 1999, included regulations governing livestock feeding
operations. The regulations classified livestock feeding opera-
tions based on the number of animal units in the operation
and contained setback requirements. Where a livestock owner
could not comply with the setback requirements, the regula-
tions required that the owner obtain a conditional use permit.
The regulations also required the owner to obtain a waiver of
THIeMAN v. CeDAr VALLey FeeDING CO. 	303
Cite as 18 Neb. App. 302

the setback requirements in order to receive the conditional
use permit.
The regulations additionally provided for the nonconforming
use of land where the use was in existence prior to the effec-
tive date of the zoning regulations. Article 11 of the applicable
regulations, in pertinent part, provided as follows:
Section 2. Non-Conforming Uses of Land.
Where at the effective date of adoption or amendment
of these regulations, lawful use of land exists that is made
no longer permissible under the terms of this resolution
as enacted or amended, such use may be continued so
long as it remains otherwise lawful, subject to the follow-
ing provisions:
2.1 No such non-conforming use shall be enlarged or
increased, nor extended to occupy a greater area of land
than was occupied at the effective date of adoption or
amendment of these regulations;
. . . .
2.3 If any such non-conforming use of land ceases for
any reason for a period of more than twelve (12) months,
any subsequent use of such land shall conform to the
regulations specified by this resolution for the district in
which such land is located.
The “rules and Definitions” section of the index defined the
term “enlargement” as “the expansion of a building, struc-
ture[,] or use in volume, size, area, height, length, width, depth,
capacity, ground coverage, or in number.” The regulations also
required any livestock feeding operation “expanding to the
next level” which did not meet the new setback requirements
to obtain a conditional use permit. Under the regulations, an
operation with 5,000 animal units is at a different level than an
operation with more than 5,000 animal units.
The zoning administrator sent out a questionnaire to deter-
mine the extent of nonconforming uses in the context of
livestock feeding operations. Not all operations received this
questionnaire, and the questionnaires were sent to different
operations at different times. The questionnaire, which the
parties also described as the “no-fee” form, as completed and
returned by Cedar Valley, stated as follows:
304 	18 NeBrASkA APPeLLATe rePOrTS

Date 	9-26-00
. . . .
To protect residents, farms and livestock operations of
Boone County, the Boone County Zoning regulations,
adopted on 	, 1999, requires any size livestock
or poultry operation (confinement or open lot) to com-
plete a no-fee registration permit.
Do you own any livestock or poultry? yeS or NO
[yeS was circled.]
If yes, enter an average number of the livestock or
poultry you have had in your operation at any one time.
Beef Cattle 	5,000
Horses 	7
. . . .
/s/ richard Van Ackeren
Signature of registrant
In 2007, Cedar Valley filed an application for a conditional
use permit to construct waste control facilities and to expand
its operation to 8,000 cattle, at least in part, by building addi-
tional pens. The Boone County Planning Commission and
Board of Commissioners approved the application on the
condition that Cedar Valley obtain a waiver of the distance
requirements. Cedar Valley was not able to do so and withdrew
the application. However, at trial, Van Ackeren testified that
at the time of the application, Cedar Valley’s facilities had a
grandfathered capacity of 7,500 cattle. The 2007 application
for a conditional use permit does not state the operation’s
existing capacity.
In 2008, Cedar Valley applied for a conditional use permit
for the purpose of constructing waste control facilities only.
The application specified that Cedar Valley no longer sought
to construct additional pens but specifically reserved the
right to “maintain the present animal capacity of such opera-
tions that existed on September 13, 1999, the date of enact-
ment of the Boone County Zoning regulations.” The permit
was granted.
The evidence adduced at trial indicated that Cedar Valley’s
confinement pens had a physical capacity in excess of 5,000
cattle but were not normally filled to capacity. Van Ackeren
THIeMAN v. CeDAr VALLey FeeDING CO. 	305
Cite as 18 Neb. App. 302

testified that the first 17 pens were installed in 1978. In 1988,
14 additional pens were installed. According to a 1988 letter
Van Ackeren wrote to the other owners of Cedar Valley, the
new pens (then yet to be built) would increase the operation’s
capacity to “5,000 head.” Ten additional pens were installed in
1997, and no new pens were constructed thereafter.
Van Ackeren testified that he calculated the maximum capac-
ity of all these pens at 7,500 cattle. Van Ackeren stated that he
determined the capacity of his pens based on industry standards
by calculating the total amount of “fence line bunk” (5,650
feet) and dividing it by 9 to 10 inches per head of cattle. By
our calculations, this would provide Cedar Valley with a maxi-
mum capacity of 6,780 to 7,533 head of cattle. Cedar Valley
also provided an exhibit which showed 5,582.5 “feet of bunk”
and which, based upon 9 inches per animal, stated a capacity
of “7444” animals.
The parties disputed the actual number of cattle that were
on the property immediately before the zoning regulations took
effect and thereafter. Van Ackeren was not able to provide any
records kept by Cedar Valley regarding the number of cattle
that were on the property immediately prior to when the zon-
ing regulations went into effect or at any other time in the sur-
rounding years. Van Ackeren testified that he had stored these
records electronically but that an employee had deleted them.
Van Ackeren also testified that in general, the number of cattle
in a pen depended on how many cattle a particular customer
would place in a pen, that not all customers filled their pens to
capacity, and that he would not place the cattle of two separate
customers in the same pen. Van Ackeren also explained that the
number of cattle in the operation fluctuated by season.
In addition to the “no-fee” form, the evidence included
records 	from 	the 	Nebraska 	Department 	of 	environmental
Quality (DeQ) which list the number of cattle on the property
as specified by Cedar Valley. In the DeQ’s initial inspection of
Cedar Valley on May 19, 1999, the data sheet stated that the
total number of animal units on the property consisted of 5,000
feeder cattle. The DeQ inspector stated that this information
was provided by Cedar Valley and that this number was carried
forward to subsequent inspections. The inspector explained that
306 	18 NeBrASkA APPeLLATe rePOrTS

if Cedar Valley had wished to increase the number of cattle in
the operation, it would have had to submit an application for
a construction and operating permit. In an October 11, 2000,
inspection, Cedar Valley proposed to add 2,500 more cattle to
existing pens and expand to include 2,500 additional cattle but
did not ultimately expand at that time. In three separate docu-
ments signed by Van Ackeren and submitted to the DeQ after
the zoning regulations went into effect, the number of existing
cattle was listed as 5,000. One of these documents is a 2007
application for construction approval in which Cedar Valley
requested to increase its capacity from 5,000 cattle to 8,000
cattle, which application was approved by the DeQ. In a fourth
document received by the DeQ on November 16, 2000, and
signed by Van Ackeren, the “maximum number of Livestock”
was listed as 5,000.
Van Ackeren testified that he did not know who told the DeQ
that Cedar Valley had a capacity of 5,000 cattle. However, he
admitted that he had never told the DeQ Cedar Valley actually
had a capacity of 7,500 cattle and that he had signed the docu-
ments which stated Cedar Valley had a capacity of 5,000 cattle.
Van Ackeren testified that he believed Cedar Valley would not
have to get a permit from the DeQ to have a capacity of 7,500
cattle unless the DeQ found that Cedar Valley was otherwise
in violation of the DeQ regulations. Van Ackeren also testified
that he believed that the DeQ’s use of the number 5,000 was
incorrect and that his 2007 request to expand Cedar Valley was
actually a correction.
The district court determined that at the time the zoning
regulations went into effect on October 1, 1999, the existing
use of Cedar Valley was “a maximum of 5,000-head feeder
cattle operation” and enjoined Cedar Valley from maintaining
more than 5,000 head of cattle on its premises as a noncon-
forming use.
This timely appeal followed.
ASSIGNMeNTS OF errOr
Cedar Valley assigns, reordered and restated, that the district
court erred in (1) finding that Cedar Valley failed to prove that
the grandfathered capacity of its cattle feeding operation was
THIeMAN v. CeDAr VALLey FeeDING CO. 	307
Cite as 18 Neb. App. 302

7,500 head of cattle when the zoning regulations went into
effect; (2) finding that Cedar Valley’s cattle feeding opera-
tion had a grandfathered maximum of 5,000 head of cattle;
(3) interpreting and applying the zoning regulations to require
identification of a specific number of cattle on the premises on
the date the zoning regulations went into effect; (4) making a
finding of fact that when the zoning administrator accepted Van
Ackeren’s claim that Cedar Valley was operating at an average
maximum capacity of 5,000 at the time the zoning regulations
were passed, Cedar Valley received a grandfathered capac-
ity of 5,000; and (5) basing its judgment on forms from the
DeQ, because they are not probative of Cedar Valley’s grand-
fathered capacity.
STANDArD OF reVIeW
[1] An action for injunction sounds in equity. In an appeal of
an equity action, an appellate court tries the factual questions
de novo on the record and reaches a conclusion independent of
the findings of the trial court. Conley v. Brazer, 278 Neb. 508,
772 N.W.2d 545 (2009).
ANALySIS
The sole issue we must address in this appeal is the extent of
Cedar Valley’s right to a nonconforming use of its real property
stemming from its use of the property before the zoning regula-
tions went into effect. We briefly recount the general rules that
govern nonconforming uses.
[2,3] It is fundamental that a zoning regulation may not
operate retroactively to deprive a property owner of his previ-
ously vested rights, that is, a zoning regulation cannot deprive
the owner of a use to which his property was put before the
zoning regulation became effective. Board of Commissioners
v. Petsch, 172 Neb. 263, 109 N.W.2d 388 (1961). The burden
is upon the landowner asserting a right of nonconforming use
to prove that his use existed prior to the effective date of the
ordinance. Hanchera v. Board of Adjustment, 269 Neb. 623,
694 N.W.2d 641 (2005).
In order to determine the nature of Cedar Valley’s right to a
nonconforming use, we must first determine whether the actual
308 	18 NeBrASkA APPeLLATe rePOrTS

physical capacity of the facility or the extent of its use controls
the extent of the nonconforming use that is exempted from
the zoning regulations. We must answer this question because,
from our review of the evidentiary record, it is apparent that
the actual capacity of the facility was different from the num-
ber of animals that were placed in confinement.
Zoning regulations can limit the extent of the nonconforming
use to the scale of operations existing at the time the regulation
was enacted and, in the instant case, limit the use to the num-
ber of cattle actually utilized in the operation. An ordinance
which “confine[s] a nonconforming use to its scale of opera-
tions at the time of the enactment of the restrictive ordinance
. . . will prohibit an extension or an increase in intensity of a
nonconforming use.” 101A C.J.S. Zoning and Land Planning
§ 186 at 268 (2005).
[4-6] While no published Nebraska case has addressed this
precise question, the general principles explained in several
Nebraska cases focus our attention on the language of the
zoning regulations and require us to enforce the plain mean-
ing of the regulations. The right to maintain a legal noncon-
forming use “runs with the land,” meaning it is an incident of
ownership of the land, and is not a personal right. Lamar Co.
v. City of Fremont, 278 Neb. 485, 771 N.W.2d 894 (2009).
Ordinances which limit and plan for the elimination of non-
conforming uses are generally considered a proper exercise
of a municipality’s power. Mossman v. City of Columbus,
234 Neb. 78, 449 N.W.2d 214 (1989). Zoning laws should be
given a fair and reasonable construction in light of the mani-
fest intention of the legislative body, the objects sought to be
attained, the natural import of the words used in common and
accepted usage, the setting in which they are employed, and
the general structure of the law as a whole. City of Lincoln v.
Bruce, 221 Neb. 61, 375 N.W.2d 118 (1985). Where the provi-
sions of a zoning ordinance are expressed in common words of
everyday use, without enlargement, restriction, or definition,
they are to be interpreted and enforced according to their gen-
erally accepted meaning. Id. As the Supreme Court of Indiana
explained in Ragucci v. Metropolitan Development Com’n, 702
N.e.2d 677 (Ind. 1998), drawing conclusions from the cases
THIeMAN v. CeDAr VALLey FeeDING CO. 	309
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is dangerous because the zoning regulations governing non-
conforming uses vary widely, both from state to state and also
from municipality to municipality within a state. Thus, the
Ragucci court held that the interpretation of ordinances that
restrict the expansion of nonconforming uses turns in the first
instance on the specific language of the relevant ordinance,
giving its words their plain, ordinary, and usual meaning. The
Indiana court’s holding seems to us entirely consistent with the
Nebraska case law.
The plain language of the zoning regulations in the instant
case definitively limits nonconforming uses of land. One regu-
lation specifies that “[n]o . . . non-conforming use shall be
enlarged or increased . . . .” Another defines the term “enlarge-
ment” to include an “expansion . . . in number.” When read
in the context of zoning regulations that specifically limit the
permissible number of animals that may be kept on the prem-
ises of a particular livestock feeding operation, this provision
prevents the addition of livestock beyond the extent of the non-
conforming use in existence when the zoning regulations went
into effect.
Two cases cited by Cedar Valley illustrate the danger in
comparing cases, which was recognized by the Indiana court.
To support the argument that the facility’s capacity controls,
Cedar Valley cites City of Central City v. Knowlton, 265
N.W.2d 749 (Iowa 1978), and Jahnigen v. Staley, 245 Md. 130,
225 A.2d 277 (1967). However, the ordinances in these cases
differ significantly from the regulations in the case before us.
In Knowlton, the ordinance did not define “enlarged” in terms
of numbers. In Jahnigen, the code defined nonconforming use
solely in terms of area. On the other hand, the unpublished case
cited by Thieman, Gem City Metal Spinning Co. v. Dayton Bd.
of Zoning Appeals, No. 22083, 2008 WL 185535 (Ohio App.
Jan. 18, 2008), involved ordinances regulating both “area” as
well as “use.” The latter case more aptly compares to the case
before us than those cited by Cedar Valley.
Cedar Valley also argues that the Nebraska Supreme Court’s
decision in Board of Commissioners v. Petsch, 172 Neb. 263,
109 N.W.2d 388 (1961), requires us to conclude that capac-
ity, as opposed to actual use, determines the extent of the
310 	18 NeBrASkA APPeLLATe rePOrTS

nonconforming use. We distinguish Petsch because it decides
an entirely separate issue—the extent to which a property
owner has an interest in a nonconforming use resulting from
an improvement which is partially completed at the time the
zoning regulation becomes effective. In Petsch, at the time a
zoning regulation went into effect which prohibited the use
of real property as a trailer court, a property owner had com-
pleted substantial work on a trailer court and it was partially
occupied. The district court limited the nonconforming use to
the use of those trailer spaces that were already in use. The
Nebraska Supreme Court reversed this decision based on its
determination that the property owner had a vested interest in
the nonconforming use of the entire trailer park, which was not
fully constructed. The court explained that “where a trailer-
court project is partially completed when zoning regulations
become effective, and the evidence is clear as to the extent of
the project, the completed project will ordinarily determine the
scope of the nonconforming use.” Id. at 268, 109 N.W.2d at
391-92. In the instant case, however, all construction had been
completed more than a year prior to when the zoning regula-
tions became effective. Thus, Cedar Valley had the opportunity
to use its property as it wished but did not fill the property
to what Cedar Valley now claims is its full capacity. In addi-
tion, there is no evidence that Cedar Valley was in the process
of expanding its operation at the time the zoning regulations
became effective but was prevented from doing so. Therefore,
the extent of Cedar Valley’s nonconforming use is limited by
the number of livestock in its operation at the time the zoning
ordinance was enacted.
Thus, the remaining question is the extent of the noncon-
forming use which existed at the time the zoning regulations
went into effect. We conclude that the nonconforming use con-
sisted of the confinement of 5,000 cattle.
We first base our conclusion, in part, on the information
provided in the “no-fee” form that the average number of cattle
in Cedar Valley’s operation was 5,000 as of September 26,
2000. Cedar Valley has argued, and we agree, that this form
has no legal effect on the extent of the grandfathered exemp-
tion. However, this evidence is probative of the number of
THIeMAN v. CeDAr VALLey FeeDING CO. 	311
Cite as 18 Neb. App. 302

cattle in the operation at the time the zoning regulations went
into effect.
Second, we base this conclusion on the numerous docu-
ments on file with the DeQ, some of which were signed by
Van Ackeren, which state that Cedar Valley had 5,000 head of
cattle. Cedar Valley insists that these documents are not proba-
tive of its grandfathered capacity, because the DeQ has noth-
ing to do with zoning. It is true that the documents were not
generated for this purpose. However, the information contained
in the documents is relevant to our present inquiry, which is
the number of cattle on Cedar Valley’s property at the time the
zoning regulations went into effect. It reflects that Cedar Valley
reported 5,000 cattle in 1999, that Cedar Valley never requested
that this number be corrected, and that Cedar Valley did not
increase the number until 2007.
While we have weighed Van Ackeren’s trial testimony, we
find the documentary evidence more persuasive. Cedar Valley
consistently reported having 5,000 cattle both before and after
the zoning regulations went into effect. Therefore, the eviden-
tiary record leads us to the conclusion that Cedar Valley’s non-
conforming use of the property is limited to the confinement of
5,000 cattle and that the district court did not err in granting an
injunction recognizing that Cedar Valley’s nonconforming use
was limited to this number.
resolution of the instant case does not require us to deter-
mine how the extent of nonconforming use would be calculated
if more precise records showed seasonal and yearly fluctua-
tions in the number of cattle.
Although we have considered Cedar Valley’s other argu-
ments in our review of the evidence, we need not address
its remaining assignments of error. The third assignment of
error pertains to the district court’s interpretation of the zon-
ing regulations. As an appellate court, we review questions of
law independently of the lower court’s conclusion. See R & D
Properties v. Altech Constr. Co., 279 Neb. 74, 776 N.W.2d
493 (2009). The fourth and fifth assignments of error relate
to the district court’s evidentiary findings and the weight it
accorded to specific portions of the evidentiary record. Because
we review the case de novo on the record, we do not review
312 	18 NeBrASkA APPeLLATe rePOrTS

the district court’s findings in this regard and reach our own
conclusions. See Conley v. Brazer, 278 Neb. 508, 772 N.W.2d
545 (2009).
[7] While our analysis differs to some degree from that of
the district court, we ultimately reach the same conclusion.
Where the record adequately demonstrates that the decision
of the trial court is correct, although such correctness is based
on a ground or reason different from that assigned by the trial
court, an appellate court will affirm. Corona de Camargo v.
Schon, 278 Neb. 1045, 776 N.W.2d 1 (2009).
CONCLUSION
We conclude that under the applicable zoning regulations,
the extent of the grandfathered nonconforming use of a live-
stock feeding operation is based on the actual use, and not
capacity. Because Cedar Valley consistently reported that there
were 5,000 cattle on its premises, we affirm the district court’s
decision to grant an injunction prohibiting Cedar Valley from
maintaining in excess of 5,000 cattle on its premises as a non-
conforming use.
aFFirmed.
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