Decision makers may have spoken early


(12/12/2018)

Did commission members flub quasi-judicial role in Daley Farms debate?

by CHRIS ROGERS

Winona County Board member-elect Chris Meyer was asked point blank during her campaign. Would she vote for the Daley Farms’ proposed dairy feedlot expansion? It would be unfair to comment on that, she responded. Meyer was on the county Planning Commission at the time — and will be until the end of the year — and she knew that she might soon be voting on that very question. “I keep an open mind,” Meyer said.

Other county decision makers did not hold back from commenting on the Daley Farms’ proposal during a recent public comment period on the Minnesota Pollution Control Agency’s (MPCA) environmental assessment worksheet (EAW) for the dairy expansion. “Over 90 million gallons of our water being used for this one enterprise. Unfair to the rest of us,” Planning Commission member Vince Ready wrote. “This particular business has already demonstrated a propensity to ignore labor laws,” Planning Commission member Kelley Stanage commented, pointing to a 2013 court case in which the Daley Farms failed to pay $43,000 in overtime wages to its employees. “Aside from the poor employment conditions … such factory farms typically do little to benefit the local economy,” Stanage told the MPCA. “I think there is a real risk of irreparable contamination of groundwater by the cumulative effect of all these livestock operations,” Winona County Board of Adjustment (BOA) member Cherie Hales stated, referring to Daley Farms’ proposal and other new and expanded feedlots.

Ready, Stanage, and Hales could soon be voting on whether to approve the Daley Farms’ project. Their decision to weigh in on the project now seemingly goes against the recommended practice of zoning experts across the country and the advice Winona County Attorney Karin Sonneman gave other county officials in the past. County Board, Planning Commission, and BOA members “should, among other things, not act as advocates for a certain position for a matter before the public body on which they serve,” Sonneman wrote in a 2013 memo on this issue.

Local politics can be just as contentious as national political battles when it comes to debating school budget cuts or whether to ban frac sand mining. But in addition to those “legislative decisions” where vigorous advocacy by decision-making leaders is appropriate, local officials are also asked to act like judges and make “quasi-judicial decisions,” calmly and impartially applying the facts and the rules to decide whether specific projects should be permitted.

The Daley Farms’ expansion is a quasi-judicial decision. The proposal to more than double the largest dairy herd in the county is currently going through a state environmental review and permitting process. In the next few weeks, the Minnesota Pollution Control Agency (MPCA) could require an in-depth environmental impact study (EIS) that would delay the project, but if the MPCA — now or after an EIS — decides to permit the project, the Daley family would turn to Winona County next for two other approvals: a variance from the Winona County Board of Adjustment (BOA) and a conditional use permit (CUP) from the Planning Commission and County Board. A CUP is required for all feedlots over a certain size. A variance would be necessary because the proposed expansion would make the Daleys’ farm nearly four times larger than the county’s current limit on feedlot size. A variance would grant the Daleys’ proposed 5,968-animal-unit feedlot an exception to the county’s 1,500-animal-unit limit. CUPs and variances are quasi-judicial decisions.

“When acting as quasi-judicial decision makers, elected or appointed board members must ensure that they listen to the evidence presented to the board in an objective, neutral manner,” the Minnesota Counties Intergovernmental Trust advises. They should not comment for or against a quasi-judicial decision beforehand, Sonneman cautioned in 2013. Doing so could be evidence of “biased predetermination,” Sonneman wrote. In other words, it could be viewed as a sign that the decision makers had already made up their minds. U.S. courts have sometimes invalidated local governments’ decisions because quasi-judicial decision makers prejudged a specific case before the case could have a fair hearing.

Sonneman did not respond before press time to questions about whether Ready, Stanage, and Hales’ comments were appropriate. Asked the same question, Winona County Planning and Environmental Services Director Kay Qualley deferred to Sonneman, but she pointed out that — even though they concern the same project — the EAW on which Ready, Stanage, and Hales commented is a separate process from a county CUP or variance. “That is what they would be acting upon, not a state-issued EAW,” Qualley said.

Daley Farms Chief Financial Officer Shelly DePestel said she was disappointed but not surprised to see the Planning Commission and BOA members’ comments. “I think it would be fair for them, for everybody, if we had openminded people who didn’t have a preconceived agenda,” she stated.

“I wasn’t really aware of it,” Ready said of the recommendation to refrain from commenting for or against specific quasi-judicial decisions in advance. “I thought I was wearing a citizen hat at the time,” he stated.

The county conducts annual trainings with Planning Commission and BOA members about legal issues and how to appropriately fulfill their duty. Past trainings have included explanations of how to treat quasi-judicial decisions, but it is unclear whether this specific issue was addressed during recent trainings.

“I think I can see the reasoning behind it,” Ready said, adding, “I guess I’d say I’m going to remain openminded and listen to both sides and keep on fact-gathering.”

There were no BOA, Planning Commission, or County Board members who commented in support of the Daley Farms during the MPCA’s public comment period, but County Board member Marcia Ward spoke positively about the Daleys during the same campaign event where Meyer held back. “I don’t know if people are so naive [they think] if we shoot this down it’ll become butterfly pasture,” Ward said. “No, it won’t. Someone will farm it.” There is no better family in Winona County to farm that land than the Daleys, she added.

Yesterday evening, after the Winona Post went to press, the County Board began discussing who to appoint to citizen volunteer committees in 2019, including the Planning Commission and BOA. Hales, Ready, and Stanage are all seeking reappointments, which are typically shoo-ins. The County Board will also need to appoint at least two new members to the BOA, and the County Board Chair — Steve Jacob is slated to be the 2019 chair — needs to make at least two new appointments to the Planning Commission. The new appointments could wind up voting on the Daley Farms’ proposal. Several of the applicants weighed in on the Daley Farms’ proposal during the MPCA’s public comment period.

Keep reading the Winona Post for more on this story.

Chris@winonapost.com

 

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