Court resolves hen house issue
By Hank Lohmeyer
Published Thursday, October 22, 2015 11:30 am
The Colorado Supreme Court announced last week that it will not consider the case involving Delta County Commissioners, Western Slope Layers and Grand Mesa Layers.
The decision of the Supreme Court to deny a "petition for writ of certiorari" filed by plaintiffs means a previous finding by the Colorado Court of Appeals in favor of the county and co-defendant Hostetler will stand.
The appeals court decision issued last October overturned the local 7th Judicial District Court decision that led to a cease and desist order issued to Western Slope Layers on Powell Mesa. The egg-laying operation, in production for only a few months when it was served with the cease and desist order, disposed of its flocks and ceased operations.
Grand Mesa Layers, another egg-laying operation approved by the county to open on Redlands Mesa, has not been built.
Following release of the Supreme Court's decision, the Delta County Commissioners issued an advisory stating, "The Colorado Supreme Court denied the petition for writ of certiorari by the plaintiffs in the litigation over the authority of the Board of County Commissioners to approve chicken houses in Delta County. With this denial by the Colorado Supreme Court, the court of appeals will soon issue a mandate which will return jurisdiction to the [7th Judicial District] trial court to comply with the appellate decision to reinstate the Board of County Commissioners' decision and vacate the cease and desist order."
Travis Jardon of Redlands Mesa, a lead plaintiff in the case against the county and the egg laying operations, replied to a DCI request for a statement with the following email:
"I was very disappointed with the Supreme Court's decision. The appellate court's opinion that overturned Judge Patrick's ruling was poor. With the Supreme Court hearing only 8 percent of the cases submitted for their review, we knew that the chance of having our case heard was remote, but we had to try in an effort to protect the neighbors from the massive amounts of pollution discharged by these tunnel ventilated facilities. Both Hostetler facilities were approved far too close to surrounding neighbors. It bears mentioning that there was no opposition to Dr. David Kuntz's egg-laying facility because he gave due consideration to the setback concerns of neighbors and located his facility appropriately. Our county would be well served if our commissioners required similar setbacks for all like operations."
County commission chairman Mark Roeber said on Monday that the Supreme Court's decision to decline plaintiffs' writ had been anticipated.
County commissioner Bruce Hovde told the DCI, "It has been a four-year-long ordeal for all concerned, particularly for the Hostetlers."
Edwin and Eileen Hostetler, principals in the Powell Mesa operation, and Greg Carmen Hostetler, principal in the Redlands Mesa project, first applied to the county for specific development approval of their chicken barns in 2011.
Hovde added, "Our county [legal staff] and Ken Nordstrom, environmental health director, put in a great deal of work on the county's position."
When the case went to the appeals court level, the county retained the Denver litigation firm of Holland and Hart whose bills for the work on the case totaled $130,000, confirmed Robbie LeValley, county administrator.
Earlier this month and prior to the Supreme Court's announcement last week, the county commissioners issued a specific development approval for a 20,000-hen egg-laying operation, Kuntz Chicken Ranch, on Redlands Mesa's Buffalo Road. Hovde told the DCI that the Supreme Court's decision following closely on approval of the Kuntz application "was just pure coincidence."
Former county commissioner Olen Lund was on the BoCC when the Hostetler approvals were first issued. Along with Delta County Farm and Livestock Bureau, he has continued to support the Hostetlers. He stated, "As a former county commissioner seated when the Hostetlers first pursued a permit for their chicken houses, I can say that the Delta County specific development regulation
was never meant to discourage agricultural development in the county. As you recall, we did revise the regulation, but at that time our thought was that 'agriculture is agriculture.' We did not foresee the technical loophole that allowed an interpretation counter to that assumption."
Lund, speaking as a local Farm Bureau official, continued, "The Delta County Farm and Livestock Bureau would like to reiterate what I stated earlier. We are pleased that the Colorado Court of Appeals, and the Colorado Supreme Court, by their denial of the writ of certiorari, upheld the right to farm in Delta County. Although many Delta County farmers were discouraged, and millions of dollars of economic development was relocated to Montrose County, this court decision is a reassurance to the family farmers in Delta County that they can continue to produce agricultural commodities here. It was critical to the future of farming in Delta County that the court uphold our right to be productive citizens."
Ironically, the county may have lent agriculture statewide a boost by being in the position of having to defend itself in the case. Hovde noted that the 7th District Court ruling was based on alleged negative health effects from chicken barns. If that decision had ultimately been upheld, it could have opened the door to many nuisance actions against other ag operators.
That issue was a principle one in the case. In overturning the 7th District Court last October, the Court of Appeals described the issue as follows: "The 7th District Court found that the egg barns were incompatible with the neighborhood because the neighbors had presented unrebutted evidence that the WSL barn, then operating, was causing respiratory problems in the community. It further found that the new conditions regarding air quality were insufficient because they did not require medical input and set no specific limit on air quality."
However, in rejecting the 7th District Court's line of reasoning, the Appeals Court judges found that "The [BoCC] and the Hostetlers also correctly assert that the record contains substantial evidence that the egg barns will not adversely affect respiratory health in the surrounding area;" and also, "The record also contains expert testimony that exhaust from poultry houses like the WSL barn extends a mere fifty feet before being dispersed into the atmosphere and that there have been no known airborne transmissions of salmonella from poultry to humans."
Don Shawcroft, president of Colorado Farm Bureau, issued the following statement: "Colorado Farm Bureau is very pleased with the decision of the Colorado Supreme Court in supporting the private property rights of the Hostetlers of Delta County," Colorado Farm Bureau President Don Shawcroft said. "This decision gives assurance to farmers and ranchers across Colorado that agriculture production is protected. The unfortunate part of this court case is the financial cost and stress for the Hostetlers in their battle to defend the rights of all farmers and ranchers. We applaud the Delta County Farm Bureau and the community for their support of the Hostetlers in this prolonged battle."
The advisory issued by the county goes on to state, "The BoCC is pleased with the Colorado Supreme Court's decision to deny the petition and feels that the court's decision solidified the right of the county commissioners to make land use decisions in their county. The BoCC feel that the denial of the petition supported the idea that decision making should stay at the local level and involve expertise that is most familiar with the area."
The county has been awaiting final resolution of the case before proceeding with a re-examination of its 1996 master plan. The commissioners' advisory concludes, "Delta County will now move forward with improving the land use process in the county and will include public input and expertise."
One issue expected to be on the table during that review is the relationship between the master plan as a document of general policy guidance, and regulations as policy implementation tools. Many believed that the advisory and regulatory roles were confused in the 7th District Court's decision. LeValley said that those roles need to be clarified and separated in the various county planning documents.