November 8, 2012

Judge Takes CAFO Lawsuit Versus County Under Advisement

A Mercer County judge will be deciding the fate of a lawsuit against the Scotland County Commission following a one-day hearing held in the Scotland County Circuit Court on Thursday, October 25th.

Third Circuit Judge Jack N. Peace, of Mercer County, presided over the trial on Count I of a two charge petition filed by Gavin Hauk against the Scotland County Commission and commissioners Charles Harris, Jr., Paul Campbell and Danette Clatt for the county's denial of a health permit for a proposed hog operation.

The October 25th hearing saw 27 pieces of evidence entered for the case as well as testimony by Gavin Hauk; Raymond Massey, an expert witness for the plaintiff; former presiding commissioner Mike Stephenson; and current commissioners, Harris, Campbell and Clatt.

Judge Peace took the case under advisement, assigning a deadline of November 21, 2012 for the plaintiff's to submit a legal brief as well as a proposed judgment in the case.

The defendants will then have until December 21 to respond to the plaintiff's brief, filing their own legal brief and proposed judgment.

Count I of the petition, filed April 18, 2012 in the Circuit Court of Scotland County, claims the county's application of its health ordinance to deny Hauk's requested permit for a proposed concentrated animal feeding operation (CAFO) was "unconstitutional, unreasonable, arbitrary, capricious and constituted an abuse of discretion."

The plaintiff is claiming the proposed CAFO met the requirements of the ordinance, including the setback and variance provisions, as it is not within two miles of a "populated area".

The section of the ordinance in question defines a populated area as "an area having at least 10 occupied dwellings not on CAFO property, as measured in a straight line from the occupied dwelling to the nearest CAFO confinement building, confinement lot, or other confinement area."

In the lawsuit, Hauk contends he was initially informed by commissioners that his application met the required setbacks only to have that opinion change after public opposition was voiced about the proposed site.

The petition filed with the court by the plaintiff contends that the county changed its interpretation of the ordinance to define a populated area as any 10 dwellings within a two mile radius of a CAFO lot.

The plaintiff argued that interpretation of the guidelines would prohibit any CAFO from being established in any part of Scotland County.

The lawsuit also contends that the ordinance is obviously not vital to the public health and safety of the citizens of Scotland County, since all but three of the estimated two dozen CAFOS in existence in Scotland County were created prior to the re- enactment of the ordinance in August of 2009, and thus are not subject to its rules targeted to "enhance the public health and prevent the entrance of infectious, contagious, communicable or dangerous diseases in Scotland County," as defined in the ordinance. The argument also was made that the health ordinance allows CAFO buildings much closer to individual occupied dwellings, seemingly contradicting the idea that the setbacks for "populated areas" are necessary for protecting health.

The legal action is asking the court to reverse the county's decision to deny the CAFO permit for Hauk and require the county to issue the health permit. It goes on to ask the court to declare the county health ordinance as unconstitutional and unenforceable with the issuance of a court injunction prohibiting the county from enforcing the ordinance. The plaintiff is also seeking to be reimbursed for the costs of the case.

Count II, which argues that the health ordinance, as applied to Hauk, violated his due process, equal protection rights and constituted an unconstitutional regulatory taking of his property, will be argued before the court at a later date.

Hauk is being represented by Jennifer Tucker, a partner in the Jefferson City office of the national law firm Lathrop & Gage, LLP.

The county and county commissioners are being represented by Matthew J. Aplington of the Lowenbaum Partnership, LLC.

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