February 14, 2013

Judge Rules Against County in CAFO Lawsuit

Round one of the battle between a spurned concentrated animal feeding operation (CAFO) and the Scotland County Commission has gone to the producer.

On February 6th Judge Jack Peace, Circuit Court Judge of Mercer County, ruled in favor of the plaintiff, Gavin Hauk, who sued the Scotland County Commission for its denial of a permit for a proposed hog barn to be located east of Memphis.

The Scotland County Commission received the news on Wednesday afternoon and immediately began considering which procedure to follow in order to appeal the trial court's decision. The actions will be based on the elements of the ordinance the county states was enacted to protect public health and property values while balancing certain agricultural activities with citizen's property rights.

"The County Commission believes that the trial court misapplied the law and will undertake all appropriate action to have the decision overturned," stated a press release from the county issued on February 11th.

Judge Peace ruled that commission's denial of the plaintiff's application "was unconstitutional, unlawful, unreasonable, arbitrary or capricious, and involved an abuse of discretion."

However the judge stopped short of striking the 2009 county health ordinance down, as the lawsuit had requested due to vagueness.

The commission points to the fact that the health ordinance was enacted by a majority vote of the county residents.

"The County Commission will continue to implement the desires of the voters of Scotland County who elected us and who directed us through the ballot to adopt and enforce the CAFO ordinance," stated Presiding Commissioner Chipper Harris. "The Commissioners will continue to act to protect the property values of the county residents and uphold the laws as elected to do by the voters."

Peace's ruling indicated the issue was not with the ordinance but instead with the defendants' application of sections used to deny Hauk's CAFO permit, which the judge ruled violated the plaintiff's right to equal protection as provided by the Missouri and U.S. constitutions.

The court finding enjoined the county from enforcing section 1.2 and the last sentence of section 5.2 of the 2009 County health Ordinance with respect to the plaintiff's application. Those portions of the ordinance provided that "No CAFO shall be located within two miles of a populated area" and defined 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."

The decision was based on arguments by the plaintiff that the sections of the ordinance had not been enforced uniformly. Specifically the plaintiff argued that clauses had not been used to deny four previous applications approved by the county commission in 2009 despite apparent issues with the permits if the clauses were interpreted in the same fashion they were in denying Hauk's permit request.

The court ruling went on to state that since these two issues were the lone reasons cited by the commission for denying Hauk's permit, the court ordered the county to issue Hauk a health permit for the proposed CAFO.

In addition, the court ordered the defendants, the Scotland County Commission, to pay Hauk damages in the amount of $178,566. The damages were based on lost income from the CAFO as well as rising costs of constructing facility, which would have been built in the winter of 2011. Hauk also incurred costs for fertilizer, which he would have been able to replace with manure produced by his hog confinement. All costs of the action were also assigned to the defendants.

If the finding holds up under appeal, the funds likely will come from the county's general budget. Early in the litigation process, the county was informed by its liability insurance provider, MOPERM, the Missouri Public Entity Risk Management Fund, that the county's policy excluded coverage for any issues related to zoning or land use plans.

The Scotland County Commission is scheduled to meet in closed executive session in the coming days to discuss legal options with the county's attorneys, including possible appeals. Additional documents will be filed with the trial court to establish the particular reasons why the County Commission believes the court erred in its initial decision.

"The county commission is hopeful that the Court of Appeals will overturn the incorrect decision of the trial court, if the trial court does not reverse itself," the County Commission stated in its press release.

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