by CHRIS ROGERS
The Daley Farm of Lewiston is suing Winona County over the county Board of Adjustment's (BOA) decision to deny a variance that would have allowed the farm to expand its dairy herd to nearly 6,000 animal units (4,628 cows, calves, and heifers). In a lawsuit filed today, the Daley family claimed the county violated its due process rights because, the suit alleges, BOA members were unfairly biased.
The disagreement stems from the county’s animal unit cap, a zoning rule that limits feedlot size to no more than 1,500 animal units (1,070 cows). The Daley Farm’s current 2,275-animal-unit operation existed before the creation of that rule in 1998, so the farm was “grandfathered in” and allowed to continue operating at its current size but not allowed to expand. Last month, the Daley Farm asked the BOA for a variance — an exception to the normal rule — that would allow the farm to expand to 5,968 animal units. The siblings who run the Daley Farm want to expand their operation so it can support their children, the next generation of Daley family farmers. The BOA denied the variance request, saying that the Daleys did not meet special criteria needed to qualify for a variance and allowing a feedlot already out of conformance with the rule to expand further would go against the principles of the county’s zoning ordinance.
The lawsuit claims that BOA members Cherie Hales, Wendy Larson, and Rachel Stoll — who cast deciding votes against the variance — were biased. “I believe it’s my family’s constitutional right to have a fair hearing, and that did not happen,” Shelly DePestel of the Daley Farms stated. The U.S. Constitution’s right to due process requires that, when making decisions such as a variance, governments must give citizens a fair hearing from impartial decision-makers who have not made up their minds in advance.
During a Minnesota Pollution Control Agency (MPCA) public comment period related to the Daley Farm expansion last fall, Hales, Larson, and Stoll all submitted comments raising concerns about the expansion or criticizing it. The three are also members of the Land Stewardship Project (LSP), an environmental and sustainable agriculture organization that opposed the Daley Farm expansion and sued the MPCA over the MPCA’s ruling that the expansion would not pose significant environmental risks. “It is my belief that such a large, factory-farm-style operation would be very detrimental to our environment and to the interactions within our rural communities,” Larson told the MPCA.
“Cherie Hales, Wendy Larson and Rachel Stoll are members of the Land Stewardship Project and have all publicly expressed opposition to the project prior to considering the Daleys’ variance request,” attorney for the Daley Farm Matthew Berger stated in a written comment today. “The public has the fundamental right to expect that variance requests will be decided by fair and impartial decision-makers based on facts and science rather than the predetermined beliefs of handpicked activists.”
The County Board “manipulated the process” when it appointed Hales, Larson, and Stoll to the BOA, DePestel argued. “They did so to appoint people who would decide the issue based on their beliefs on modern agriculture and not the evidence,” she claimed.
Before the BOA vote, Berger demanded that Hales and Larson recuse themselves from voting on the variance. At the same time, opponents of the Daley Farm’s expansion questioned the impartiality of BOA members Larry Greden — who is the grandfather-in-law of one of the Daley family’s young farmers — and Philip Schwantz, who is a member of the Winona County Township Officers Association (TOA) board. The TOA endorsed the Daley Farm’s variance request, but Schwantz said he did not participate in the vote. Greden and Schwantz cast votes in favor of the Daleys’ request.
Winona County Attorney Karin Sonneman advised the BOA members that as long as they could make a fair decision based on the evidence in front of them, none of them needed to recuse themselves. “It is … this office’s opinion that all of the BOA members can participate and vote on the matter of the Daley Farm’s variance request, provided that they can state for the record that they are able to set side their personal opinions and relationships and fairly and impartially decide the matter solely on the record before them,” Sonneman wrote.
All of the members said they could do that. When Berger pressed Stoll about her prior insistence that the MPCA should conduct more in-depth study before permitting the Daley Farm expansion, Stoll answered, “It’s the role of the MPCA to determine if there is a risk or a need for those things. It’s the role of our citizens to state their opinions, and it’s the role of this board to decide if this variance meets the criteria laid out in the law.”
Winona County is divided over the Daley Farm’s request. Many citizens and municipalities supported the Daleys, vouched for their farming practices, and urged the county not to block the economic boost they believe the expansion would bring to rural communities. Even more citizens spoke against the proposed expansion because of concerns that manure from expansion could seep into groundwater and worsen nitrate pollution in rural aquifers and the belief that allowing the expansion would worsen farm consolidation and hurt small farms and rural communities. After months of study, the MPCA ruled this winter that the feedlot expansion would not pose significant environmental risks, but LSP disagreed and sued the MPCA over that decision. That case is still pending.
Earlier this month, rural county commissioners Steve Jacob and Marcia Ward tried to get the County Board to consider changing the animal unit cap, but commissioners Marie Kovecsi, Chris Meyer, and Greg Olson declined. “I’m concerned about our groundwater and the number of wells that are failing,” Kovecsi said. “I’m going to again advocate for waiting until we have definitive proof that what we end up with is a good number,” Olson said, referring to a new maximum number of animal units.
The county is aware of the Daleys’ lawsuit, Winona County Administrator Ken Fritz said, and the case has been assigned to an attorney from the Minnesota Counties Intergovernmental Trust (MCIT) — the county’s insurance provider, which pays for lawyers to defend the county. “Until the county actually reviews [the lawsuit] and the attorney from MCIT researches it, I don’t know what the county’s position will be.” The county has several weeks to file an initial response to the lawsuit’s claims. “I’m sure the county will indicate the process is as fair as it is,” Fritz said. “It’s really up to the court to decide,” he added.