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In the Matter of the Jerome v. Jerome County

July 6, 2012

IN THE MATTER OF THE JEROME COUNTY BOARD OF COMMISSIONERS; DECISION DATED SEPTEMBER 23, 2008, APPROVING A LIVESTOCK CONFINEMENT OPERATION PERMIT FOR DON MCFARLAND, DBA BIG SKY FARMS. FRIENDS OF MINIDOKA, DEAN & EDEN DIMOND, HAROLD & CAROLYN DIMOND, WAYNE SLOAN, GUARDIAN OF JAMES SLOAN, THE IDAHO RURAL COUNCIL, INC., IDAHO CONCERNED AREA RESIDENTS FOR THE ENVIRONMENT, INC., PETITIONERS/APPELLANTS/CROSS-RESPONDENTS,
v.
JEROME COUNTY, JOSEPH DAVIDSON, CHARLES HOWELL, DIANA OBENAUER, MEMBERS OF THE JEROME COUNTY BOARD OF COMMISSIONERS, RESPONDENTS/RESPONDENTS ON APPEAL/ CROSS-APPELLANTS, AND SOUTH VIEW DAIRY, AN IDAHO GENERAL PARTNERSHIP, WILLIAM VISSER, WILLIAM DE JONG, AND RYAN VISSER, GENERAL PARTNERS, INTERVENORS/RESPONDENTS ON APPEAL.



Appeal from the District Court of the Fifth Judicial District, State of Idaho, Jerome County. Hon. Robert J. Elgee, District Judge.

The opinion of the court was delivered by: Burdick, Chief Justice

2012 Opinion No. 111

Stephen W. Kenyon, Clerk

District court decision, affirmed.

This case concerns the approval of a permit application for a Livestock Confinement Operation (LCO), also known as a Concentrated Animal Feeding Operation (CAFO), by the Jerome County Board of County Commissioners (Board). The Board approved the application after a remand by the district court of the Board's decision previously denying the permit. Several individuals and organizations were opposed to the LCO because of the potential harms to the neighboring farms and to the Minidoka National Historic Site petitioned the district court for review of the Board's decision on remand from the district court. The district court affirmed the Board's approval of the permit, finding in the process that four of the organizations concerned with the effects on the Minidoka National Historic Site lacked standing. Several of the objecting parties have appealed the district court's decision, asking that this Court find that these parties had standing to challenge the permit approval, that the Board's procedure for presenting evidence before the Board violated procedural due process rights, and that the Board failed to follow all of the county's relevant zoning ordinances when it approved the application. In resolving the appeal, we address issues concerning the standing of appellant-organizations, the due process rights of individuals wishing to present evidence throughout the LCO permit application process, the constitutionality of the "one mile rule" of Idaho Code section 67-6529, and the application of the Jerome County Zoning Ordinances. We conclude that the Board properly applied its zoning ordinance to the LCO permit application process, that I.C. § 67-6529 is not unconstitutional, and that the public was afforded appropriate due process prior to, and during the LCO permit application hearing. We affirm the district court's decision on judicial review.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Original Proceedings

1) Application and Hearing

On May 3, 2007, Big Sky Farms (Big Sky) filed an application with Jerome County for a LCO permit. The application indicated an 8,000 Animal Unit*fn1 facility on 1,204.61 acres zoned as A-1 agriculture on the north side of US Highway 25 near Eden, Idaho. The proposed site is approximately 1.25 miles from the Minidoka National Historic Site and is surrounded by resident farms. After the application was forwarded to the Idaho Department Agriculture Siting Team for a suitability determination, the Board set public hearings for the application on September 25 and 26, 2007, and also discussed the matter at a public meeting on October 9, 2007.

Originally, the Board scheduled a public hearing to be held on August 14-15, 2007. Pursuant to the county zoning ordinance, the Board sent written notice to individuals owning property within one mile of the proposed site on July 17, 2007, and published the hearing dates in the Jerome North Side News two days later. In these initial notices, the Board indicated that it would only consider written comments submitted within fifteen days of the publication date by property owners having a primary residence within a one mile radius of the proposed site. Any public testimony during the hearing would be limited to one 8.5″x11″ single-sided sheet of paper and two minutes of oral testimony.

The Board rescheduled the public hearing to September 25-26, 2007, to make amends for submissions that were denied by the county zoning department when it improperly interpreted the end date for public submissions. New notices were sent by mail on August 15, 2007, and published in the newspaper on August 23, 2007; these notices included the same submission procedures. On September 10, 2007, the Board amended the submission procedures for the public hearing and denied another delay that was requested by attorneys for entities in opposition to the LCO that were unable to attend on the dates of the hearing. The new procedures were adopted upon the county attorney's recommendations that the two minutes allotted for oral testimony may be unconstitutional; the Board voted to allow four minutes for oral testimony and two pages of written testimony instead of one from a person willing to forego his or her opportunity to testify orally. These new procedures were mailed out to property owners within the one-mile radius on September 11, 2007, and published in the newspaper on September 13, 2007. Also at this time, the Board amended other procedures for hearings, yet did not include them as part of the notices to the parties or for the Big Sky LCO hearing publication notice. These amended procedures provided for the submission by the public of any written testimony or documentary evidence prior to the hearing, as long as it was received no later than seven days before the hearing.*fn2

On the day that the notice was published in the newspaper, the Board received a letter from the attorney of the guardian for James Slone indicating that he owned property approximately 300 yards southeast of the LCO site and he had not received a notice in the mail. The letter indicated that Mr. Slone had the right to be represented by counsel at the hearing and asked the Board to delay the hearing because the attorney could not attend on the published dates. A notice was sent to Mr. Slone on September 14, 2007, but he did not receive it before the time for written submissions expired. The zoning department later explained to the Board that no notice had been previously mailed because there was no residence on Mr. Slone's property and it had interpreted the zoning ordinance to only require notices be sent to properties within the one-mile radius with residences. The Board considered delaying the hearings because of the lack of mailed notice, but on advice of the county attorney that there was no deficiency in notifying Mr. Slone, the Board decided to go forward with the previously scheduled hearing.

2) Hearing Participants

Among those that appeared before the Board at the hearing or submitted written evidence were Big Sky, Dean and Eden Dimond, Harold and Carolyn Dimond, Wayne Slone as guardian of James Slone, the Idaho Rural Council, Inc., Idaho Concerned Area Residents for the Environment, Inc., the Japanese American Citizens League, Inc., the National Trust for Historic Preservation, Inc., and Preservation Idaho, Inc.

a. Big Sky

The attorney for Big Sky was the first to appear at the hearing and asked the Board to focus solely on whether the application met the requirements of Chapter 13 in the zoning ordinance and recited the requirements listed therein, describing how Big Sky had met each.

b. Friends of Minidoka

Friends of Minidoka is a non-profit organization based in Twin Falls dedicated to educational, preservation, and research pursuits and projects related to the Minidoka National Historic Site. Friends of Minidoka has approximately 108 members, nineteen of which reside in Idaho, with one residing in Jerome County. According to their chairperson, these members travel to the Minidoka National Historic Site on a yearly basis and co-sponsor a Civil Liberties Symposium each year at the College of Southern Idaho. Friends of Minidoka have joined other entities to challenge the LCO, and have written articles in their newsletters and spoken to reporters in Jerome County to spread knowledge about the LCO. They have also partnered with the National Park Service to hire a Washington State University scientist to study the effects of the LCO on the air quality in Minidoka. Friends of Minidoka believe that the LCO will impair their efforts to safely utilize the historic site and prohibit members from participating in its events. The Board received correspondence from Friends of Minidoka during the submission period.

c. Dean and Eden Dimond

Dean and Eden Dimond are landowners that reside in close proximity to the proposed LCO. The Dimonds are fourth generation farmers who reside directly west of the proposed LCO and farm for a dairy operation. The Dimonds hand-delivered comments to the Board that were initially returned but later admitted during a subsequently scheduled period for submissions; the packet of documents contained a memorandum from the Dimonds as well as correspondence with various agencies. In a letter to the Board, the Dimonds expressed their concerns with the LCO, stating initially their reservations with the limited amount of time they had been given to respond following the notice (15 days). Also, according to the Dimonds, the LCO application failed to meet minimum requirements of the zoning ordinance and included too much vague and hypothetical information for a meaningful review. The Dimonds also adopted the reservations of the National Park Service, Japanese American Citizens League, and Conservation Fund in their opposition to the LCO. The other reasons the Dimonds gave the Board for denying the application include the increased traffic in the area; the application's undercounting of animals, which leads to a number exceeding the county ordinance's allowance for cows per acre; pictures that show that the operation can be seen from Highway 25, contrary to application comments stating otherwise; allegations that the waste water pivot overlaps onto a neighbor's land; concerns about the natural drainage; water transfers that had yet to be approved; concerns about setbacks; operation lighting that will disturb the Dimond property; compromised resale value of existing homes in the area; odors; health concerns; pollution; waste of prime farm land; lack of study on the viability of surrounding property; lack of respect for the Minidoka National Historic Site; and the fact that the operation will transform the land that should be used for smaller agricultural operations into an industrial operation.

d. Harold and Carolyn Dimond

At the hearing, Carolyn Dimond testified that her due process rights had been violated because she had not received individual notice, because the Board had not accepted her written testimony, and because her attorney could not be present at the hearing. Harold Dimond testified that the Board had denied him the opportunity to have an attorney present, and that the zoning department had denied him an opportunity to submit evidence prior to the hearing. He also "expressed concern about the evidentiary limitations of the hearing." The Board asked Mr. Dimond follow-up questions regarding his concerns, asking if the Board had ever told him that he could not bring an attorney to the hearing. The county attorney also stated that "there was not necessarily a right to have an attorney" at the hearing and that Mr. Dimond was not restricted to being represented by that specific attorney.

e. James Slone

At the October 9, 2007 meeting where the Board reached its final decision, Mr. Slone's attorney requested that the Board vacate the hearing and schedule a new one because Mr. Slone's rights had been violated because of the lack of notice and lack of opportunity to testify.

f. Idaho Rural Council, Inc.

Idaho Rural Council is a non-profit, non-partisan grassroots organization committed to preserving Idaho's family farms and is interested in the negative impacts to air and water quality of its members living and farming in the area around the proposed LCO. According to its executive director, Idaho Rural Council has 425 members with more than 13 living in Jerome County, including Dean and Eden Dimond and Harold and Carolyn Dimond.

g. Idaho Concerned Area Residents for the Environment, Inc.

Idaho Concerned Area Residents for the Environment (ICARE) is a non-profit corporation advocating on behalf of Idaho citizens against the severe impact of LCOs. ICARE was denied the opportunity to provide substantial written testimony to the Board, but was allowed to provide oral testimony. According to the executive director, ICARE has 111 members, many of which live close to the proposed LCO and the Minidoka National Historic Site. ICARE submitted the report entitled "Pew Commission Report on Industrial Factory Animal Production" to the Board. Many of its members submitted written submissions (of one page) at the hearing.

h. The Japanese American Citizens League, Inc.

Japanese American Citizens League is the oldest and largest Asian-American civil rights organization in the United States. The Pacific Northwest Regional Director provided oral testimony to the Board and submitted a photograph of immediate family members who were incarcerated in Tule Lake. As of September 2009, there were six members within the counties of Jerome, Twin Falls, and Minidoka.

i. The National Trust for Historic Preservation, Inc.

The National Trust for Historic Preservation in the United States is a non-profit corporation chartered by Congress in 1949 to protect historic resources; the National Trust provided a statement of interest at the Board hearing. At least one member of the National Trust provided the Board with oral comments on behalf of the National Trust. The National Trust also submitted written submissions.

j. Preservation Idaho, Inc.

Preservation Idaho advocates for historic and cultural resources, and provided written and oral testimony to the Board. Preservation Idaho has 239 members, including two members residing in Jerome County. The President of the Board of Trustees submitted written evidence and testified orally before the Board.

3) Board Decision

The Board issued a written decision denying the application on November 1, 2007. The Board found that the application complied with the standards of the zoning ordinance, but was contrary to the county's comprehensive plan. Specifically, the Board's decision stated that the application's Nutrient Management Plan did not sufficiently provide assurances that the 267,000 pounds of annual phosphate waste would be disposed of appropriately. Big Sky filed a Petition for Judicial Review on November 13, ...


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