## Facts

- Enterprise Partners, a Nebraska general partnership, proposed constructing a hog confinement facility in Perkins County.
- The Perkins County Board of Commissioners held public meetings where residents and groups raised environmental and public health concerns about large livestock confinement operations.
- The Board opposed state permitting and contacted the Nebraska Department of Environmental Quality (DEQ) regarding odor, insects, and road impacts; DEQ stated several concerns were outside its statutory authority or were local issues.
- In December 1998, the County enacted two ordinances targeting livestock confinement facilities:
  - Ordinance 98-1 regulated odor and flies and required, among other measures, that livestock waste lagoons be covered.
  - Ordinance 98-2 regulated animal waste storage and discharges, including preventing waste from escaping onto land or county roadways.
- At enactment, the County had not adopted a county comprehensive development plan or countywide zoning regulations and stipulated it lacked the comprehensive plan required by Nebraska zoning statutes.
- Enterprise filed a declaratory judgment action asserting the ordinances were, in substance, zoning regulations adopted without statutory authority.

## Issues

1. Whether Ordinances 98-1 and 98-2 were zoning regulations or valid police-power health and welfare regulations.
2. If the ordinances were zoning regulations, whether they were invalid because the County had not first adopted a comprehensive development plan as required by Neb. Rev. Stat. § 23-114.03.

## Decision

- The Nebraska Supreme Court reversed the district court.
- The Court held both ordinances were zoning regulations because they controlled land use and the physical configuration and operation of livestock confinement facilities.
- Because Perkins County had not adopted a comprehensive development plan, the County lacked authority to enact zoning regulations, rendering Ordinances 98-1 and 98-2 invalid.

## Legal Principles

- A Nebraska county must adopt a comprehensive development plan before adopting zoning regulations, as required by Neb. Rev. Stat. § 23-114.03.
- Measures that regulate the use of property and the physical configuration of development function as zoning regulations, even if framed as nuisance, health, or environmental controls.
- The legal effect of an ordinance, not its stated purpose, determines whether it constitutes zoning.
- Zoning enacted without meeting statutory preconditions is ultra vires and void.

## Conclusion

The court invalidated Perkins County’s livestock confinement ordinances because, despite being framed as health and nuisance controls, they operated as zoning regulations and were adopted without the comprehensive development plan required as a prerequisite to county zoning authority.


Enterprise Partners v. County of Perkins, 260 Neb. 650, 619 N.W.2d 464 (Neb. 2000)