Daley Farm appeals

Photo by Chris Rogers

Ben Daley speaks at a Dec. 2, 2021, Board of Adjustment meeting.

by CHRIS ROGERS

 

On Monday the Daley Farm appealed the Winona County Board of Adjustment’s (BOA) denial of the farm’s request for an exception to the county’s limit on feedlot size. The farm had sought a variance from the county’s 1,500-animal-unit cap in order to expand its Lewiston dairy operation to nearly 6,000 animal units (roughly 4,500 cows). Now Daley Farm will take its case up with the district court.

If this article sounds familiar, that’s because it’s the second time the BOA denied the Daley Farm’s request and the second time the farm is challenging that decision in court. The Daley Farm won its first appeal, but didn’t get exactly what it wanted. In 2019, the BOA denied the same request. Some BOA members had publicly opposed the project before their vote, and the Daley Farm sued, arguing that those members were biased against them, violating the farm’s right to due process. Subpoenas in that lawsuit further showed that some BOA members were actively involved in a Land Stewardship Project (LSP) campaign opposing the farm and that County Board members coordinated with LSP on whom to appoint to the BOA. District Court Judge Kevin Mark ruled, “This decision made by the Board of Adjustment is so severely tainted by members of the Board of Adjustment that it can’t stand.” He ordered the county to redo the decision with new BOA members.

The county did just that last month. A closely watched meeting ended with the BOA stalemated in a 2-2 tie, resulting in the variance being denied by default.

“There’s a systemic problem with the three county commissioners that so boldly corrupted the BOA last time, so we feel it’s just part of the due diligence and the process of going through the process and procedures to make sure everything was done correctly this time around,” said Ben Daley of the Daley Farm. Daley said that, although the farm doesn’t have evidence of it, he suspects there may have been an attempt by the County Board to appoint certain people to the BOA with the goal of them denying the farm’s request — the same thing the judge ruled happened in 2019. “For some odd reason, if you’re part of Land Stewardship, it’s very likely you would be put on the BOA,” he said.

“I think we have endeavored to ensure the process is as fair as it possibly could be,” said Paul Reuvers, the attorney for the county. “We had the board chair recused. Arguably he didn’t have to do that, but to ensure there wasn’t any hint of potential bias or prejudgement, he recused himself to make this process as pristine as possible.” He added, “I fully expect the court will affirm the process this time around.”

While there is currently no evidence that there was bias on part of the BOA or County Board this time around, the lawsuit may give the Daley Farm a chance to subpoena documents and testimony and look for evidence. “I expect they’ll want to do some additional discovery,” Reuvers said. “It won’t be as intensive as last time, but I’m sure there will be some. To Ben Daley’s comment, they want to know if there’s something out there. We don’t believe there is, but they’re likely going to look.”

“We’ll see where everything, where the evidence and where the appeal takes us,” Daley said.

Secondly, Daley argued that the basis for the BOA’s denial wasn’t supported by the facts. The variance very nearly passed the BOA, with three members agreeing that all criteria had been met except for one — a requirement that economics cannot be the only reason for the variance request.

While the Daleys have consistently said their primary reason for wanting to expand their farm was to support a new generation of their family joining the operation, at the BOA meeting, they argued that increasing cover crops and runoff-reducing alfalfa acreage and supporting their employees and animals were also reasons for the variance request. In a decisive moment, BOA member Kelsey Fitzgerald acknowledged some of those benefits, while ultimately saying economics were the primary reason. “I’m saying they’re [planting more alfalfa] because they need to feed their animals to benefit them economically and, in fact, grow their herd,” she said.

Daley argued the evidence shows that economics were not the sole reason.

“The record is replete with [comments that] they are doing this to support more family and have economics of scale. So I think the record amply supports that this was all about economics,” Reuvers said.

The Daley Farm’s quest to expand dates back to 2014 and 2015, when County Board members Steve Jacob and Marcia Ward unsuccessfully sought to change to the animal unit cap, a move opposed by County Board members Greg Olson, Marie Kovecsi, former member Jim Pomeroy, and later by current member Chris Meyer. Supporters of the cap say it’s crucial to protecting groundwater from nitrate pollution from manure in a county where many rural wells are contaminated and that the cap helps preserve small farms. Opponents say that animal agriculture can actually help reduce pollution compared to the row crops that have increasingly replaced dairy operations in the county and that limiting large farms’ size in one county doesn’t help small farms survive in a global economy. The Minnesota Pollution Control Agency (MPCA) ruled in 2019 that the Daley Farm’s manure management plan was sufficient and the proposed expansion did not pose significant environmental risks.

In a statement, LSP wrote, “Over the years, Daley Farm has repeatedly shown it has little respect for common-sense, local government rules that protect the environmental and economic health of the community. This latest appeal is yet another waste of public resources at a time when we should be focusing on investing in a type of farming that benefits the wider community, and not just one mega-sized dairy facility.”

Chris@winonapost.com