Brewer, 052919 NEAGO, AGO 19-8

• Case Date: May 29, 2019
• Court: Nebraska

Senator Tom Brewer AGO 19-8 No. 19-008 Nebraska Attorney General Opinion State of Nebraska Office of the Attorney General May 29, 2019          SUBJECT: LB 373 - County Zoning Provisions for Wind Energy Generation Projects          REQUESTED BY: Senator Tom Brewer Nebraska State Legislature          WRITTEN BY: Douglas J. Peterson, Attorney General, Lynn A. Melson, Assistant Attorney General          INTRODUCTION          You have requested our opinion on two questions with regard to county zoning authority. As we have frequently stated, we will limit our opinions for members of the Legislature to instances where the questions posed to us involve a legislative purpose growing out of pending or proposed legislation. Op. Att'y Gen. No. 157 (December 24, 1985). Under that standard, it appears that your questions may relate to LB 373, which you mention in your request letter.^[1] The Introducer's Statement of Intent for the legislation states "LB 373 creates a law that requires counties to have zoning if the county wishes to host wind energy facilities. The zoning must address three subjects (set-backs, noise, decommissioning) but leaves the establishment of particular values for these subjects up to the county." Committee Records on LB 373, 106^th Neb. Leg., 1^st Sess. (Introducer's Statement of Intent,) (January 31, 2019). Your specific questions are:

1. Does Nebraska case Saw, including but not limited to the Lincoln Dairy Company v. Finigan, 170 Neb. 777 (1960) and Gillette Dairy, Inc. v. Nebraska Dairy Products Bd., 192 Neb. 89 (1974) line of cases, stand for the proposition that counties and other political subdivisions may not (a) altogether prohibit or (b) in practice prevent the undertaking of an otherwise lawful occupation or activity?

2. Do Nebraska counties have the lawful authority, e.g., under Neb. Rev. Stat. § 66-913, to impose zoning or other restrictions that prohibit the construction of wind turbines whose height is in excess of a certain specified maximum height?

         ANALYSIS          I. Lincoln Dairy Company and Gillette Dairy, Inc.          Your first question is whether two cases which you cite stand for the proposition that counties and other political subdivisions may not prohibit or prevent the undertaking of an otherwise lawful occupation or activity. In Lincoln Dairy Co. v. Finigan, 170 Neb. 777, 104 N.W.2d 227 (1960), the court considered the constitutionality of the Grade A Milk Act and determined that it unconstitutionally delegated legislative powers to the director of the Department of Agriculture, including the power to define crimes. The court also found provisions of the Act violated the due process clause at Neb. Const, art. I, §3, stating:

A citizen clearly has the right to engage in any occupation not detrimental to the public health, safety, and welfare. Measures adopted by the Legislature to protect the public health and secure the public safety and welfare must have some reasonable relation to those proposed ends. A citizen has a constitutional right to own, acquire, and sell property, and if it becomes apparent that the statute, under the guise of a police regulation, does not tend to preserve the public health, safety, or welfare, but tends more to stifle legitimate business by creating a monopoly or trade barrier, it is unconstitutional as an invasion of the property rights of the individual. Id. at 785-86,

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