Big Sky Farms applied for a Livestock Confinement Operation permit (LCO) to operate an 8,000 animal Concentrated Animal Feeding Operation (CAFO) on 1,204 acres of A-1 agricultural land near Eden, Idaho, approximately 1.25 miles from the Minidoka National Historic Site. The Jerome County Board of Commissioners, after scheduling and rescheduling public hearings, and setting and amending procedural rules for the public hearings, issued a written decision denying the application, finding that the project complied with zoning requirements but was inconsistent with the county’s comprehensive plan. Big Sky appealed, and the district court overturned the County Board’s decision, holding that the Board was limited to considering whether the application was complete, whether the LCO was located in an A-1 zone, and whether the application complied with zoning ordinances. The court held that the Board had erred in considering the county’s comprehensive plan as a basis for denying the application. On remand, the Board reconsidered the application and approved the LCO permit subject to conditions.
In 2008, petitioners, a group of individuals and citizens groups, appealed the Board’s issuance of the LCO permit. The district court considered the petitioners’ many challenges – the constitutionality of the provision allowing siting of CAFOs in the area; procedural due process violations at the public hearing; the application’s completeness; the Board’s adherence to proper procedure in considering the application; the requirement that the Board provide a reasoned statement to justify its decision; and a motion for attorney’s fees—as well as a standing challenge raised by the respondents. The court held that four of the petitioners lacked standing, and that those who met the standing requirements failed to provide sufficient evidence of constitutional and other violations. The request for attorneys fees was denied and the case was dismissed. The petitioners here appeal.
On appeal, the court held that all petitioners except the Friends of Minidoka association had standing to appeal the Board’s decision, because each was either an individual, or an association with at least one individual, who qualified as an affected person aggrieved by the Board’s decision. An affected person is “one who has an interest in real property which may be adversely affected by the issuance or denial of a permit authorizing development.” Idaho law further limits those who can comment on or bring challenges to CAFO applications to those who own a primary residence within a one mile radius of the proposed site, unless the scope of impact is expanded by the county board. At the hearing, the Board allowed anyone from the public, however the court held that the right to judicial review is limited to those who had an interest in real property affected by the CAFO approval and who provided comments on that impact at the public hearing. In this case, each of the individuals owned a residence within a one mile radius of the proposed CAFO, and that the organizations, with the exception of Friends of Minidoka, had at least one member who qualified.
As for the procedural due process claim made by one individual, Slone, the court held that there was no violation of due process rights, even though Sloane had not received the written notice of public hearings distributed to all other affected persons. While Sloane owned property within one mile of the proposed CAFO, he did not have a primary residence there. Since the Idaho notice requirements for CAFOs required notice only to those with primary residences within one mile of the proposed site, the court held that the Board was not required by statute to serve Sloan with notice, and his procedural due process rights had not been violated.
The other petitioners also claimed violation of their due process rights, however each was shown to have been provided notice via a mailing, publication in a local newspaper, and a posting made at city hall, and an opportunity to comment at the hearings via written or oral comments. Petitioners contended that they were not given an adequate opportunity to be heard, or an opportunity to have an attorney present, because they were limited to submitting no more than two pages of written evidence and making no more than four minutes of oral testimony. The court held that the petitioners did not have a protected right to have counsel present at the hearing, and that the Board had allowed additional comment from some residents, which was more opportunity to be heard than required by statute. Ultimately, the court held the limitations on comments did not violate petitioners’ procedural due process rights.
Petitioners also challenged the “one mile radius” rule as an unconstitutional equal protection violation. The court held that the classification scheme—primary residents within a one-mile radius of the proposed site—was not arbitrary or irrational, since it was an effort by the government to preserve efficiency and expediency in the permitting process, a legitimate governmental purpose. For those reasons, the court held that the “one mile rule” was not violative of the petitioners’ equal protection rights.
Finally, petitioners claimed the Board had failed to adhere to its own zoning ordinances, which state that provisions covering CAFOs were made in accordance with a comprehensive plan. The petitioners argued that the CAFO was not in accordance with the comprehensive plan, and that the Board failed to follow ordinances obligating it to deny projects not in compliance with the comprehensive plan when it issued the permit to Big Sky. However, the court noted that comprehensive plans are meant to serve as a guide articulating the purpose and intentions of the county, rather than a legally controlling zoning law to which the Board was required to strictly adhere. For those reasons, the court deferred to the Board’s interpretation of its own ordinances, which it did not find to be arbitrary, capricious, or unreasonable, and dismissed that claim.
In re Jerome County Board of Commissioners, 2012 WL 2892399 (Idaho 7/6/12)
The opinion can be accessed at: http://www.isc.idaho.gov/opinions/friends38113.pdf