Can a Tennessee county zone or regulate large-scale concentrated animal feeding operations (factory farms) within its borders?

Plain-English summary

Rep. Craig Fitzhugh asked AG Slatery a series of questions about whether Tennessee counties can use their zoning or general powers to regulate concentrated animal feeding operations (CAFOs), the modern industrial-scale livestock operations defined in 33 U.S.C. § 1362(14) and 40 C.F.R. § 122.23.

The opinion says no, on every front, and explains the regulatory architecture along the way.

CAFO water-pollution permitting in Tennessee. CAFOs that meet the federal thresholds need NPDES permits. Tennessee has had an EPA-approved state NPDES program since 1977, codified as the Tennessee Water Quality Control Act of 1977 (Tenn. Code Ann. §§ 69-3-101 to -148). The Tennessee Department of Environment and Conservation (TDEC) issues those permits through its Division of Water Resources. So one important piece of CAFO regulation already exists at the state level, run by TDEC.

County zoning authority does not reach CAFOs. Tennessee counties have only the powers expressly granted by the General Assembly. Shore v. Maple Lane Farms, 411 S.W.3d 405, 425 (Tenn. 2013); Howard v. Willocks, 525 S.W.2d 132, 135 (Tenn. 1975). Since 1935 counties have had zoning authority under Tenn. Code Ann. §§ 13-7-101 to -119, but that authority has always carved out agricultural uses. Section 13-7-114(a) provides that the zoning chapter "shall not be construed as limiting or affecting in any way or controlling the agricultural uses of land." In 1995, the General Assembly granted counties additional general powers but specifically excluded "the power to prohibit or regulate normal agricultural activities" (Tenn. Code Ann. § 5-1-118(b)) and "the regulation of buildings used primarily for agricultural purposes" (§ 5-1-122).

CAFOs fit squarely within "agricultural" use as defined in Tenn. Code Ann. §§ 1-3-105(a)(2)(A) and 43-1-113(b)(1): "land, buildings and machinery used in the commercial production of farm products" and the "activity carried on in connection with the commercial production of farm products." So the agricultural carve-outs apply, and counties cannot reach CAFOs through zoning or general powers.

Right-to-farm law does not grant counties new zoning authority. Tenn. Code Ann. §§ 44-18-101 to -104 is a right-to-farm law. It protects feedlots, dairy farms, and poultry production houses from nuisance suits when they comply with applicable rules. The "absolute defense" in § 44-18-102 turns on whether the operation complies with TDEC rules (§ 44-18-103) and any "applicable" zoning requirements and regulations (§ 44-18-104).

Section 44-18-104's specifications about which zoning requirements and regulations apply (those in effect at the operation's "established date of operation," subject to the April 12, 1979 carve-out) do not give counties power to enact such requirements. § 44-18-104 takes pre-existing zoning rules and tells you which ones are relevant to a nuisance defense. The statute even spells out the limit: "[n]othing in this chapter shall be deemed to empower any agency described in this definition to make any regulation or ordinance." § 44-18-101(14). So § 44-18-104 is downstream of an authority that does not exist.

§ 13-7-114 doesn't conflict with § 44-18-104. § 13-7-114 limits county zoning power for agricultural uses. § 44-18-104 doesn't grant any zoning power. There's no conflict because they operate at different levels.

What § 44-18-104(b) and (d) mean. These subsections say a CAFO operator "shall comply with this section as a matter of law where no zoning requirement [or regulation] exists." Read literally, that would command compliance with rules that don't exist, which is absurd. The AG reads them sensibly: when no zoning rules apply, the operator is deemed to have complied as a matter of law. That preserves the operator's nuisance defense even where there's no regulatory framework to comply with. State v. Fleming, 19 S.W.3d 195, 197 (Tenn. 2000) (avoid absurd statutory results).

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Can a county at least require a building permit for a CAFO?
A: § 13-7-114(a) prohibits requiring building permits for buildings or structures on land devoted to agricultural uses, except on agricultural lands adjacent or in proximity to state federal-aid highways, public airports, or public parks. So in most rural locations the answer is no.

Q: What if rural neighbors are dealing with odors or runoff from a CAFO?
A: NPDES water-quality issues go to TDEC. Nuisance lawsuits remain available for harms outside the right-to-farm law's absolute defense, but the defense will block claims when the operator is in compliance with applicable TDEC rules and zoning requirements (subject to the established-date-of-operation framework in § 44-18-102).

Q: Why does the right-to-farm law exist?
A: The 1970s saw widespread conversion of farmland to residential and commercial uses. Right-to-farm laws spread across the country to apply the common-law "coming to a nuisance" doctrine: people who move next to an existing farm cannot complain about its normal noises, odors, and operations. Tennessee's law tracks that pattern.

Q: What does "established date of operation" mean?
A: It is the reference date the right-to-farm law uses to decide which zoning rules apply to a feedlot, dairy farm, or poultry production house. As the opinion explains, operations established before April 12, 1979 generally must comply with the zoning requirements in effect on that date, while later zoning requirements apply when the operation's established date comes after the rule took effect.

Q: What about a CAFO close to a public park, highway, or airport?
A: § 13-7-114(a) carves out "agricultural lands adjacent or in proximity to state federal-aid highways, public airports or public parks" for buildings incidental to the agricultural enterprise. In those locations, county building-permit authority can apply to agricultural buildings. The opinion does not detail how this exception affects CAFO siting near such locations; consult counsel.

Q: Could a city use its zoning power to regulate CAFOs within the city limits?
A: The opinion focuses on counties. Section 13-7-114 governs the county zoning authority. Municipal zoning authority operates under a different statutory chapter, which the opinion does not address. This opinion does not decide whether a city could zone CAFOs within its limits.

Background and statutory framework

Tennessee CAFO regulation runs through three layers.

Federal: The Clean Water Act (33 U.S.C. §§ 1251-1387) requires NPDES permits for CAFOs above defined thresholds (40 C.F.R. § 122.23). EPA can run the permit program directly or delegate to a state.

State: Tennessee has the delegated NPDES program under Tenn. Code Ann. §§ 69-3-101 to -148, administered by TDEC's Division of Water Resources. So permitting authority over CAFO water-quality issues sits at TDEC.

Local: Tennessee has historically declined to give counties authority over agricultural land uses. § 13-7-114(a) exempts agricultural uses from the zoning chapter. § 5-1-118(b) and § 5-1-122 reinforce that exemption for general county powers. The right-to-farm law (§§ 44-18-101 to -104) protects CAFOs from nuisance suits but does not grant counties any new authority.

The opinion's textual core is the agricultural-use definition in § 1-3-105(a)(2)(A) and § 43-1-113(b)(1), which sweeps in modern CAFOs. Combined with the carve-outs in §§ 13-7-114, 5-1-118(b), and 5-1-122, that definition forecloses any county regulatory grip on CAFOs.

Citations

• 33 U.S.C. §§ 1251-1387; 1342(a); 1362(14)
• 40 C.F.R. § 122.23
• Tenn. Code Ann. §§ 1-3-105(a)(2)(A); 5-1-118(b); 5-1-122; 13-7-101 to -119; 13-7-114(a); 43-1-113(a), (b)(1); 44-18-101 to -104; 44-18-101(14); 44-18-102; 44-18-103; 44-18-104(b), (d); 69-3-101 to -148; 69-3-108(b)
• Tenn. Comp. R. & Regs. 0400-40-05-.02(63)
• Ready Mix, USA, LLC v. Jefferson Cnty., 380 S.W.3d 52 (Tenn. 2012)
• Lafferty v. City of Winchester, 46 S.W.3d 752 (Tenn. Ct. App. 2000)
• Shore v. Maple Lane Farms, LLC, 411 S.W.3d 405 (Tenn. 2013)
• Edwards v. Allen, 216 S.W.3d 278 (Tenn. 2007)
• Howard v. Willocks, 525 S.W.2d 132 (Tenn. 1975)
• KLN Assocs. v. Metro Dev. & Hous. Agency, 797 S.W.2d 898 (Tenn. Ct. App. 1990)
• Fallin v. Knox Cnty. Bd. of Comm'rs, 656 S.W.2d 338 (Tenn. 1983)
• 421 Corp. v. Metropolitan Gov't of Nashville and Davidson Cnty., 36 S.W.3d 469 (Tenn. Ct. App. 2000)
• Tennessee Envtl. Council v. Tennessee Water Quality Control Bd., 254 S.W.3d 396 (Tenn. Ct. App. 2007)
• Arkansas v. Oklahoma, 503 U.S. 91 (1992)
• Home Builders Ass'n of Middle Tennessee v. Williamson Cnty., 304 S.W.3d 812 (Tenn. 2010)
• Bateman v. Smith, 194 S.W.2d 336 (Tenn. 1946)
• State v. Fleming, 19 S.W.3d 195 (Tenn. 2000)
• State v. Turner, 913 S.W.2d 158 (Tenn. 1995)
• Tenn. Att'y Gen. Op. 17-35 (July 26, 2017)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2018/op18-30.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
July 6, 2018
Opinion No. 18-30

County Regulation of Concentrated Animal Feeding Operations

Question 1
Do Tennessee's zoning statutes authorize counties to regulate concentrated animal feeding operations?

Opinion 1
No.

Question 2
Does Tenn. Code Ann. § 44-18-104 authorize counties to regulate concentrated animal feeding operations?

Opinion 2
No. Tennessee Code Annotated § 44-18-104 is not an independent source of authority for a county to enact zoning requirements or regulations; it merely states which zoning requirements and regulations are applicable in determining whether a feedlot, dairy farm, or poultry production house can be afforded absolute immunity from a nuisance claim.

Question 3
If counties may regulate concentrated animal feeding operations pursuant to Tenn. Code Ann. § 44-18-104, must the regulations have been in effect as of April 12, 1979?

Opinion 3
As stated in Opinion 2, Tenn. Code Ann. § 44-18-104 is not an independent source of authority for a county to enact zoning requirements or regulations. It merely states which zoning requirements and regulations are applicable in determining whether a feedlot, dairy farm, or poultry production house can be afforded absolute immunity from a nuisance claim. Generally, feedlots, dairy farms, and poultry production houses established prior to April 12, 1979, must comply with zoning requirements and regulations in effect on that date. But later zoning requirements and regulations can apply when the feedlot, dairy farm, or poultry production house has an "established date of operation" subsequent to the effective date of a zoning requirement or regulation.

Question 4
Does Tenn. Code Ann. § 13-7-114 affect the reservation of local regulatory authority found in Tenn. Code Ann. § 44-18-104?

Opinion 4
No. As stated in Opinion 2, Tenn. Code Ann. § 44-18-104 is not an independent source of authority for a county to enact zoning requirements or regulations. Therefore, there is no conflict between Tenn. Code Ann. § 13-7-114 and Tenn. Code Ann. § 44-18-104.

Question 5
What is the effect of Tenn. Code Ann. § 44-18-104(b) and (d), which direct compliance with the section when no zoning requirements or regulations exist?

Opinion 5
Tennessee Code Annotated § 44-18-104(b) and (d) do not direct compliance with the section when no zoning requirements or regulations exist. When no zoning requirements or regulations exist, these provisions convey that a person's compliance with the section is deemed to be established as a matter of law.

ANALYSIS

This opinion addresses local government regulation of "concentrated animal feeding operations." This term has its origin in the federal Clean Water Act of 1972, 33 U.S.C. §§ 1251-1387. Congress passed this Act to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). To achieve this goal, the Act established a permitting system that prohibits the discharge of pollutants from "point sources" into navigable waters except as authorized by a National Pollution Discharge Elimination System (NPDES) permit. 33 U.S.C. §§ 1311, 1342(a). The Act defines "point source" as including "concentrated animal feeding operations (CAFOs)." 33 U.S.C. § 1362(14). CAFOs with more than a defined number of animals require NPDES permits. 40 C.F.R. § 122.23.

Under the Act, NPDES permits may be issued by the Environmental Protection Agency (EPA) or by an EPA-approved state permit program. 33 U.S.C. § 1342; Arkansas v. Oklahoma, 503 U.S. 91, 101 (1992). In conformance with the Act, Tennessee has had an EPA-approved NPDES permitting program since 1977. 51 Fed. Reg. 32834-03 (1986); 46 Fed. Reg. 51644-02 (1981). This program is currently codified as the Tennessee Water Quality Control Act of 1977 at Tenn. Code Ann. §§ 69-3-101 to -148. The Tennessee Department of Environment and Conservation (TDEC) implements the program, see id., and TDEC's Division of Water Resources issues NPDES permits in Tennessee. See Tenn. Comp. R. & Regs. 0400-40-05-.02(63).

In sum, CAFOs in Tennessee that require NPDES permits receive those permits through TDEC. See Tenn. Code Ann. § 69-3-108(b). See, e.g., Tennessee Envtl. Council v. Tennessee Water Quality Control Bd., 254 S.W.3d 396, 400 (Tenn. Ct. App. 2007). The questions posed concern the authority that counties might have to also regulate CAFOs.

County Control of Private Property Through Zoning Laws and General Powers

Since the power to control private property belongs to the State, see Ready Mix, USA, LLC v. Jefferson Cnty., 380 S.W.3d 52, 64 n. 17 (Tenn. 2012); Lafferty v. City of Winchester, 46 S.W.3d 752, 757 (Tenn. Ct. App. 2000), a county lacks the inherent authority to control the use of private property within its boundaries. Shore v. Maple Lane Farms, LLC, 411 S.W.3d 405, 425 (Tenn. 2013); Lafferty, 46 S.W.3d at 757. A county's power to control private property must derive from the State through specific delegation by the General Assembly. Shore, 411 S.W.3d at 426; Edwards v. Allen, 216 S.W.3d 278, 284 (Tenn. 2007). Accordingly, the validity of any county regulation of CAFOs must be measured against the statutes that authorize local governments to act. KLN Assocs. v. Metro Dev. & Hous. Agency, 797 S.W.2d 898, 902 (Tenn. Ct. App. 1990).

1. Since 1935, the General Assembly has empowered counties to adopt zoning ordinances. Id. See Shore, 411 S.W.3d at 426. Tennessee's zoning statutes empower counties to regulate the use of real property and the structure and design of buildings within their boundaries. Lafferty, 46 S.W.3d at 758. See Tenn. Code Ann. §§ 13-7-101 to -119.

The grants of power in these statutes are broad, Fallin v. Knox Cnty. Bd. of Comm'rs, 656 S.W.2d 338, 342 (Tenn. 1983), but not without limit. 421 Corp. v. Metropolitan Gov't of Nashville and Davidson Cnty., 36 S.W.3d 469, 475 (Tenn. Ct. App. 2000). Ever since county zoning statutes were enacted, counties have not been authorized to regulate "agricultural uses" of property:

This part shall not be construed as authorizing the requirement of building permits nor providing for any regulation of the erection, construction, or reconstruction of any building or other structure on lands now devoted to agricultural uses or which may hereafter be used for agricultural purposes, except on agricultural lands adjacent or in proximity to state federal-aid highways, public airports or public parks; provided, that such building or structure is incidental to the agricultural enterprise. Nor shall this chapter be construed as limiting or affecting in any way or controlling the agricultural uses of land.

Tenn. Code Ann. § 13-7-114(a) (emphasis added). See Shore, 411 S.W.3d at 426.

These statutory prohibitions on county regulation of buildings and other structures devoted to agricultural uses and on county regulation of agricultural uses of land are reaffirmed in Chapter 1 of Title 5 of the Code, which governs the powers of counties generally. In 1995, the General Assembly granted counties certain powers that previously had been granted to municipalities but made clear that it was not granting counties "the power to prohibit or regulate normal agricultural activities." See 1995 Tenn. Pub. Acts ch. 264 (codified at Tenn. Code Ann. § 5-1-118(b)). Furthermore, the General Assembly reiterated: "The powers granted to counties by this part do not include the regulation of buildings used primarily for agricultural purposes; it being the intent of the general assembly that the powers granted to counties by this part should not be used to inhibit normal agricultural activities." See id. (codified at Tenn. Code Ann. § 5-1-122).

In sum, Tenn. Code Ann. § 13-7-114(a), § 5-1-118(b), and § 5-1-122 prevent counties from regulating buildings and other structures devoted to agricultural uses or purposes and from regulating normal agricultural activities and the agricultural uses of land.

Neither "agriculture" nor its adjectival form, "agricultural," is defined in any of these provisions, but the definition of "agriculture" provided in Tenn. Code Ann. § 43-1-113(b)(1) applies "unless a different definition is specifically made applicable to the part, chapter, or section in which the term appears," Tenn. Code Ann. § 43-1-113(a), just as the identical definition of "agriculture" in Tenn. Code Ann. § 1-3-105(a)(2)(A) applies wherever "agriculture" is used in the Code "unless the context otherwise requires." Tenn. Code Ann. § 1-3-105(a)(2)(A). Thus, by applicable statutory definition "agriculture" means:

(A) The land, buildings and machinery used in the commercial production of farm products and nursery stock;
(B) The activity carried on in connection with the commercial production of farm products and nursery stock;
(C) Recreational and educational activities on land used for the commercial production of farm products and nursery stock; and
(D) Entertainment activities conducted in conjunction with, but secondary to, commercial production of farm products and nursery stock, when such activities occur on land used for the commercial production of farm products and nursery stock.

Tenn. Code Ann. § 1-3-105(a)(2)(A) and § 43-1-113(b)(1). And because the natural and ordinary meaning of "agricultural" is "of or relating to agriculture," this definition of "agriculture" applies as well to define "agricultural" as used in Tenn. Code Ann. § 13-7-114(a), § 5-1-118(b), and § 5-1-122. See Tenn. Att'y Gen. Op. 17-35 (July 26, 2017).

Based on the applicable definitions of "agriculture" and "agricultural," CAFOs clearly involve "agricultural" activities and the "agricultural" use of land and structures. Thus, a county is not authorized to regulate CAFOs under its zoning powers or its general powers under Chapter 1 of Title 5 of the Code.

Tennessee Code Annotated §§ 44-18-101 to -104

2. • 4. Tennessee Code Annotated §§ 44-18-101 to -104 is a right-to-farm law that protects "feedlots, dairy farms, and poultry production houses" from nuisance suits. Right-to-farm laws became prevalent throughout the United States in the late 1970s as a means to curtail the conversion of farmland to nonagricultural uses. These laws were designed to stem farmland conversion by insulating farming operations from nuisance liability. While the States differ in their approach to providing this insulation, right-to-farm laws generally codify the common-law concept of "coming to a nuisance."

Tennessee's law embodies the "coming to a nuisance" doctrine in Tenn. Code Ann. § 44-18-102. Subsections (a) and (b) of this statute shield feedlots, dairy farms, and poultry production houses from nuisance claims when they are in compliance with applicable rules and regulations. Subsections (a) and (b) specify that when conditions or circumstances alleged to constitute a nuisance are subject to the rules and regulations in § 44-18-103 or § 44-18-104, proof of compliance with those rules and regulations is an "absolute defense" to a nuisance action when the plaintiff's date of ownership of realty is subsequent to the defendant's "established date of operation" or when the plaintiff's actual or proposed use of realty for residential or commercial purposes is subsequent to the defendant's established date of operation. Subsection (c) states that the "normal" noises, odors, and appearance of feedlots, dairy farms, and poultry production houses are not grounds for a nuisance action if the plaintiff's date of ownership is subsequent to the established date of operation.

The statutory provision in question, Tenn. Code Ann. § 44-18-104, addresses the "applicability of zoning requirements and regulations." As explained above, compliance with § 44-18-103 and § 44-18-104 can afford a feedlot, dairy farm, or poultry production house with absolute immunity from a nuisance action. Accordingly, § 44-18-103 sets forth the TDEC rules that are "applicabl[e]" and § 44-18-104 sets forth the "zoning requirements" and "regulations" that are "applicabl[e]" for the purpose of determining whether absolute immunity is to be afforded to a feedlot, dairy farm, or poultry production house under Tenn. Code Ann. § 44-18-102.

The applicable zoning requirements and regulations under § 44-18-104 are generally as follows: Feedlots, dairy farms, and poultry production houses established prior to April 12, 1979, must comply with zoning requirements and regulations in effect on that date; and later zoning requirements and regulations can apply when the established date of operation of the feedlot, dairy farm, or poultry production house is subsequent to the effective date of a zoning requirement or regulation.

In sum, § 44-18-104 merely sets forth which zoning requirements and regulations apply when determining whether a feedlot, dairy farm, or poultry production house is to be afforded absolute immunity from a nuisance claim. But § 44-18-104 does not provide authority for a county to enact zoning requirements or regulations. See Howard v. Willocks, 525 S.W.2d 132, 135 (Tenn. 1975) (counties have no authority other than that expressly given by statute or necessarily implied from the provisions of such statute).

Moreover, the General Assembly specifically provided in its definition of "zoning requirement" that "[n]othing in this chapter shall be deemed to empower any agency described in this definition to make any regulation or ordinance." Tenn. Code Ann. § 44-18-101(14). Consequently, Tenn. Code Ann. § 13-7-114, which prevents counties from using their zoning power to regulate structures and land used for agricultural purposes, is not in conflict with Tenn. Code Ann. § 44-18-104 because there is no independent source of zoning power bestowed upon any local entity under this right-to-farm law.

5. The last question concerns the effect of subsections (b) and (d) of Tenn. Code Ann. § 44-18-104 when no zoning requirements or regulations exist. Subsection (b) states that "[a] person shall comply with this section as a matter of law where no zoning requirement exists," and subsection (d) similarly states that "[a] person shall comply with this section as matter of law where no regulation exists." (Emphasis added.)

When the word "shall" appears in a statute, it is normally construed as a mandatory, Home Builders Ass'n of Middle Tennessee v. Williamson Cnty., 304 S.W.3d 812, 819 (Tenn. 2010), and means "must." Bateman v. Smith, 183 Tenn. 541, 543, 194 S.W.2d 336, 336 (1946). Such a construction here, however, would lead to an absurd result: a person would be commanded to comply with zoning requirements and regulations that do not exist. A statute is not to be interpreted in a manner that yields an absurd result. State v. Fleming, 19 S.W.3d 195, 197 (Tenn. 2000). To avoid an absurd result in this instance, the most reasonable construction is that a person is deemed "as a matter of law" to have complied with the section when no zoning requirements or regulations exist. See State v. Turner, 913 S.W.2d 158, 160 (Tenn. 1995) ("We must seek a reasonable construction in light of the purposes, objectives, and spirit of the statute based on good sound reasoning.").

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

LAURA T. KIDWELL
Senior Counsel

Requested by:
The Honorable Craig Fitzhugh
State Representative
425 5th Avenue North
Cordell Hull Building, Suite 664
Nashville, Tennessee 37243