Daley Farm - no public hearing

Photo by Chris Rogers

Ben Daley spoke at a hearing on the Daley Farm's variance request in 2019.

by CHRIS ROGERS

 

Winona County will reconsider the Daley Farm’s expansion proposal on Dec. 2, and county officials do not plan to hold a new public hearing before making their decision on the controversial project. Normally, a public hearing would be legally required. However, attorneys for the Daley Farm and the county said that because next month’s meeting is a court-ordered redo of the county’s 2019 decision to deny the project and a public hearing was already held in 2019, no public hearing would be required this time around.

The meeting will be held at the Riverport Inn and Suites in Winona at 1 p.m. on Dec. 2 and will be open to public attendance, but not public comment, Winona County Planning and Environmental Services Director Kay Qualley explained. “There will not be 400 people speaking for two minutes apiece,” she said. “That testimony is already on record.”

“It’s not a new application. [The county is] only required to hold one public hearing; the county’s already held the public hearing,” attorney for the county Paul Reuvers explained.

“I just don’t think it’s fair that we’re not getting another public hearing,” said Barb Nelson, a rural Lewiston resident who opposes the expansion.

“For the members I’ve talked to and been organizing with, it’s upsetting to see that, because this is a community conversation that has been happening for years,” Land Stewardship Project (LSP) Organizer Matthew Sheets said.

The Daley Farm is applying for an exception, or variance, from the county’s 1,500-animal-unit limit on feedlot size so the Lewiston dairy can expand to nearly 6,000 animal units (over 4,500 cows). Although the Minnesota Pollution Control Agency ruled the expansion did not pose significant environmental risks, many local residents are concerned the added manure could worsen nitrate pollution in well water. In 2019, the Winona County Board of Adjustment (BOA) denied the Daleys’ variance request, blocking the project. However, the Daley Farm successfully sued the county, showing that some of the BOA members and the County Board members who appointed them were actively involved in an LSP campaign against the project. A judge ruled they were unfairly biased and ordered the county to reconsider the variance.

The county had initially planned to hold a public hearing on Dec. 2., but attorney for the Daley Farm Matthew Berger argued in a letter to the county that would be legally impermissible. He maintained the county should make its decision solely based on the information presented in 2019, including a public hearing at which over 40 people spoke. He cited a 1999 Minnesota Supreme Court ruling against a second public hearing in a similar case, in which the justices wrote, “There is no basis … to allow the county another chance to build a record to support its denial of the permit.”

“If the Daleys are objecting to another public hearing, fine, we’re not legally required to have one, and we’ve got a complete public record,” Reuvers said. He continued, “In light of the Daley’s objection to it, I’d rather move this forward as smoothly as possible, and this just avoids one legal argument the Daleys might make. If the application were to be denied, I’m sure we would have the Daleys argue that we shouldn’t have held a public hearing and reopened the record … So from a strategy perspective, I’m trying to take one more legal argument off the table if we’re challenged again.”

The potential for future legal challenges hang over the county on multiple fronts. 

Earlier this year, the Daleys appealed the district court decision and tried to get the Minnesota Court of Appeals to simply grant the variance, arguing that their farm would not get a fair shake from the county the second time around. After the Court of Appeals passed on the case for the time being, Ben Daley told the Winona Post that he fully expects the county to deny the variance again, setting the stage for another appeal. “We’ll go through the whole process and appeal it later,” he said.

The idea behind the district court’s ruling was that a new BOA, with unbiased members and a fair process, should make a new decision. However, Berger raised some doubts about that premise in his letter to the county. “… The fact remains that the existing [BOA] members were appointed by the same county commissioners who previously conspired with the local activist organization to stack the Board of Adjustment with members who would oppose Daley Farm’s variance application,” he wrote. “Daley Farms remains deeply disturbed by the county’s past malfeasance, as well as its complete failure to acknowledge that its actions were wrong and apologize for the time and expense that Daley Farm incurred to discover these improper actions, and Daley Farm remains skeptical that it will receive a fair hearing on remand. I expect that the county will implement appropriate procedures to identify potential bias by the current board members … and ensure that biased members do not participate on remand.”

In 2019, Winona County Attorney Karin Sonneman allowed BOA members who made public statements opposing the expansion to vote on the variance, so long as they swore to be impartial. That became the basis for the Daley’s lawsuit against the county. Some residents argued the potential bias went both ways, as another BOA member who supported the expansion was related to the Daleys through his grandson’s marriage.

While the BOA members the judge ruled were biased have since left the BOA, current BOA Chair Bob Redig testified against the variance in 2019. “The biggest thing, probably the biggest thing, is when you change the rules of the game in the middle of the game,” Redig said at the time, arguing an exception would be unfair to other farmers. 

In other court cases, judges have overturned permit denials because of government decision-makers publicly stating their opposition to a specific permit application before voting on it.

“We’re just asking for a fair hearing by our peers, and so far we haven’t had it,” Ben Daley said.

Chris@winonapost.com