Posted by: Patricia Salkin | February 22, 2017

MS Appeals Court Finds Neighbor Had Sufficient Notice that Farmer was Constructing New Poultry House Within Buffer Zone

In 1979, Errington established Errington C. Poultry Farm # 2 with three poultry houses that were constructed between 1979 and 1980. In 1994, the Mississippi Commission on Environmental Quality imposed siting criteria that established a buffer zone for poultry facilities constructed or modified after February 24, 1994. In December 2011, Iva Mae Errington conveyed 2.3 acres of land located between Taylor’s property and Errington Poultry to Taylor. In 2012, Errington requested that the Permit Board grant a waiver or variance for the two new poultry houses that did not meet the siting criteria. MDEQ staff presented the matter to the Permit Board with the recommendation that a variance be granted to Errington. Taylor sent correspondence to Tompkins and the Permit Board, stating that she had not received a buffer-zone waiver and that she would be unwilling to sign a waiver. The Permit Board granted a variance from the siting criteria to Errington Poultry, and reinstated coverage for the 2010 poultry house as well as the replacement house.

On appeal, Taylor first argued that Errington failed to file a valid NOI seeking permission to construct and operate his new poultry houses at least 180 days prior to first commencing construction and operations. The NOI received by Errington established the following schedule on its cover page: “Submit at least 180 days prior to commencement of construction or planned operations.” Errington did not submit an NOI 180 days prior to commencing construction of his 2010 poultry house. While the Permit Board acknowledged Errington’s noncompliance, it also recognized that Taylor’s complaint was the first complaint it had ever received regarding Errington Poultry in its over thirty-year history of poultry operations. The Permit Board further determined that failing to comply with the 180–day notice provision did not preclude Errington from applying for a variance and obtaining coverage under the General Permit. The court noted that while permit coverage to Errington for the operation of his 2010 poultry house and for the construction of the proposed replacement house was erroneously given, Errington continued to operate the 2010 poultry house and began construction of the replacement house based on what he believed was valid permit coverage. Moreover, Taylor observed Errington undertaking the construction of the much larger 2010 poultry house 393 feet away from her home, and the demolition and construction of another much larger replacement house 279 feet away from her home. Despite this, Taylor waited until December 2011 to present her first complaint against Errington Poultry despite living next to the facility since 1983. Accordingly, the court found that Taylor was not impeded from meaningfully challenging Errington’s variance request and permit coverage. Finally, because the Permit Board’s decision was not arbitrary and capricious and was supported by substantial evidence, the court affirmed the judgment of the Greene County Chancery Court affirming the decision of the Mississippi Environmental Quality Permit Board.

Taylor v. Mississippi Environmental Quality Permit Bd., 205 So.3d 1129 (MI App. 2016)

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