May 3, 2012

County Commission Being Sued For Denying Health Permit for Proposed CAFO

A Scotland County farmer is taking the county to court seeking a judicial review of the county commission's decision not to grant him a county health permit for a proposed concentrated animal feeding operation (CAFO).

Gavin Hauk has filed a lawsuit against the Scotland County Commissioners, Charles Harris, Jr.; Paul Campbell, and Danette Clatt, seeking judicial review of the November 30, 2011 decision by the commission to deny Hauk's permit request as well as injunctive relief by the court.

Hauk had proposed the construction of a hog finishing operation involving 4,960 head of swine on his property, a 327-acre farm located east of Memphis.

The lawsuit claims that the commission's decision to deny Hauk's permit was unconstitutional, unlawful, unreasonable, arbitrary, capricious and an abuse of discretion. It goes on to claim that the County Health Ordinance, as applied to Hauk by the commission, is unconstitutional and unlawful.

The request for a judicial review of the decision is based on RSMo 536.150, which according to the lawsuit, provides for such recourse when any administrative officer or body renders a decision which is not subject to administrative review, determining the legal rights, duties or privileges of any person, including the denial or revocation of a license, and there is no other provision for judicial inquiry into or review of such decision.

The petition also notes that Hauk is seeking a declaratory judgment and injunctive relief with respect to what the plaintiff claim's was the defendants' invalid decision and the invalid ordinance.

The petition highlight's the commission's decision to deny the health permit based on the proximity of the proposed CAFO to a "populated area".

The plaintiff's argument claims that the commission was "arbitrary, capricious, discriminatory, unlawful, and unconstitutional," in its decision, claiming that Hauk's proposed CAFO does in fact meet the setback provision in the Ordinance in that: "the ten dwellings located nearest to Hauk's proposed CAFO are spread out about one mile apart from each other; and there are less than ten occupied dwellings within two miles of Hauk's proposed CAFO as measured in a straight line from the dwellings to the nearest proposed confinement building, lot or area.

The lawsuit also questions the county health ordinance as a whole, highlighting the plaintiff's belief that only a small percentage of CAFO's in the county are regulated by the ordinance, since they were in place prior to its passage in August of 2009.

The petition states: "The permitting and regulatory requirements of the Ordinance are not vital to the public health and safety of the citizens of Scotland County and are arbitrary, capricious and discriminatory because they only apply to three out of the two dozen CAFOs in Scotland County and any proposed CAFOs."

The lawsuit goes on to address procedural questions regarding the commission's handling of the process, highlighting concerns that Commissioner Clatt actively participated and voiced opposition to Hauk's permit application in her official capacity prior to and following her recusal from the official decision, as well as alleged failures to comply with notice requirements of the Sunshine Law before holding meetings and public hearings about the application.

The petition ultimately is questioning the validity of the health ordinance as a whole, stating "the Ordinance is void for vagueness in violation of these constitutional provisions because Defendants are unable to understand and evenly apply and enforce the guidelines for setback for population as demonstrated by the disparity of the treatment of Hauk versus all other applicants and the need for their counsel to make their decision."

It goes on to claim that the commission's definition of a populated area, as was used to deny Hauk's claim, would ultimately prevent any CAFO's from being built in Scotland County. The petition notes this would be in direct conflict with state law authorizing the establishment of CAFOs (RSMo 640.710).

The suit requests the court, which ultimately is assigned the case, to grant it a hearing on this Petition as soon as possible and order the trial of action on the merits to be advanced and consolidated with the hearing on the request for preliminary injunction under Rule 92.02(c)(3).

The lawsuit ultimately seeks reversal of the defendants' decision denying Hauk's permit application; and asks the court to declare the ordinance unconstitutional and unenforceable with a permanent injunction prohibiting the county from enforcing the ordinance. The plaintiff is also seeking to have the defendants pay his costs and asks the court to "order such other relief as this Court may deem just and proper in the premises."

The lawsuit claims "as a direct and proximate result of Defendants' actions, Hauk's has been deprived of his constitutionally protected First, Fifth and Fourteenth Amendments rights and has been damaged in an amount in excess of $25,000.00, plus attorneys' fees and costs.

"Hauk has suffered and will continue to suffer immediate and irreparable injury, loss or damage in the absence of relief for which there is no adequate remedy at law."

Hauk is being represented in the case by Lathrop & Gage, LLP.

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