Complaint Is Filed - Challenging Weakened Controls on Swine Feeding Operations

COMMONWEALTH OF KENTUCKY

FULTON CIRCUIT COURT
CIVIL ACTION NO. ___________

BARRY SHARP, PLAINTIFF
312 Hickory Lane
Fulton, Kentucky 42041

V.

FULTON COUNTY FISCAL COURT and

HAROLD GARRISON, in his official capacity
as Fulton county Judge Executive

and

BILLY NELMS, JR. in his official capacity as
Magistrate of Fulton County

and

ROSCOE HUTCHINS in his official capacity as
Magistrate of Fulton County

and

JAMES BLACK in his official capacity as
Magistrate of Fulton County

and

DENNIS HULIN in his official capacity as
Magistrate of Fulton County

and

RALPH WAYNE ADAMS, JR.

and

J. P. AMBERS

and

CHAD ALLEN EVERETT

and

MATT MOSE

and

JIM MOSE, DEFENDANTS

* * * * *

VERIFIED COMPLAINT FOR DECLARATION OF RIGHTS AND INJUNCTIVE RELIEF

* * * * *

INTRODUCTION

This action arises under the provisions of the Kentucky Declaratory Judgment Act, KRS 418.040 et seq., seeking a declaration of rights between the Plaintiff and the named local government officials and holders of ?swine feeding facility permits,” concerning the validity of action taken by the Fulton County Fiscal Court on May 10, 2005 to adopt, by motion, a document purporting to be regulations and a “general permit” authorizing construction and operation of a “swine feeding facility” in Fulton County.

This action also arises under Section 2 of the Kentucky Constitution, which prohibits arbitrary government action, seeking a declaration that the action taken by the Fulton County Fiscal Court to adopt the regulations and “general permit” and to delegate the review and issuance of permits to a single individual under said regulations and “general permit” was arbitrary, capricious and otherwise inconsistent with law for want of compliance with the mandatory procedures established under KRS 67.075 through 67.077 for adoption of ordinances and for amendments to ordinances, and that all permits issued by such individual under the unlawfully-adopted regulations and “general permit” are void ab initio.

Finally, this action seeks temporary and injunctive relief against county officials and the Fulton County Fiscal Court prohibiting approval of any applications to construct or operate swine feeding facilities in Fulton County under the improperly-adopted regulations and “general permit”, and against the five holders of the four permits issued under such improper procedures, Ralph Wayne Adams, Jr., Matt Mose, Jim Mose, J.P. Amberg, and Chad Everett, prohibiting construction or operation of any swine feeding facility absent proper compliance with Ordinance 97-5.

PARTIES

1. Barry Sharp is a resident of Fulton County and a property owner, residing at 312 Hickory Lane, Fulton, Kentucky 42041. Mr. Sharp is a person with interests which are or may be adversely affected by the adoption by the Fulton County Fiscal Court, without proper compliance with applicable law, of a set of regulations and “general permit” for swine feeding facilities in Fulton County, Kentucky. Among the interests of Mr. Sharp that are or may be adversely affected are interests in the maintenance of the value of his property, since the operation of intensive swine feeding operations has been demonstrated in numerous studies to have an adverse effect on the value of nearby properties.

2. Additionally, Mr. Sharp has interests in the peaceful use and enjoyment of his property; interests which may be affected by the construction or operation of swine feeding facilities. Numerous studies indicate that the airborne emissions from such facilities and from the land application of wastes produced by such facilities can interfere with the uses of nearby lands.

3. Additionally, Mr. Sharp has informational interests that have been injured by the failure of the Fulton County Fiscal Court to proper publish and to allow public review and comment on proposed ordinances. The failure to follow mandatory procedures deprived Mr. Sharp of the ability to review and to provide comment on the adopted regulations and “general permit.”

4. Harold Garrison is sued in his official capacity as County Judge Executive of Fulton County, Kentucky, which by motion on May 10, 2005 adopted a document purporting to establish regulations and a “general permit” for swine feeding operations, and to delegate the review and approval of such permits to an agent of the Fiscal Court, L. Thomas Hodges. As chief executive of the County and a member of the Fulton County Fiscal Court, Mr. Garrison is obligated by KRS 67.075 - .077 to follow certain procedures in the adoption of or amendment of ordinances, and is further prohibited by Section 2 of the Kentucky Constitution from acting in a manner that is arbitrary.

5. Billy Nelms, Jr. is sued in his official capacity as a Magistrate of Fulton County, Kentucky and a member of the Fulton County Fiscal Court, which by motion on May 10, 2005 adopted a document purporting to establish regulations and a “general permit” for swine feeding operations, and to delegate the review and approval of such permits to an agent of the Fiscal Court, L. Thomas Hodges. As a Magistrate of the County and a member of the Fulton County Fiscal Court, Billy Nelms, Jr. is obligated by state law to follow certain procedures in the adoption of or amendment of ordinances, and is further prohibited by Section 2 of the Kentucky Constitution from acting in a manner that is arbitrary.

6. Roscoe Hutchins is sued in his official capacity as a Magistrate of Fulton County, Kentucky and a member of the Fulton County Fiscal Court, which by motion on May 10, 2005 adopted a document purporting to establish regulations and a “general permit” for swine feeding operations, and to delegate the review and approval of such permits to an agent of the Fiscal Court, L. Thomas Hodges. As a Magistrate of the County and a member of the Fulton County Fiscal Court, Roscoe Hutchins is obligated by state law to follow certain procedures in the adoption of or amendment of ordinances, and is further prohibited by Section 2 of the Kentucky Constitution from acting in a manner that is arbitrary.

7. James Black is sued in his official capacity as a Magistrate of Fulton County, Kentucky and a member of the Fulton County Fiscal Court, which by motion on May 10, 2005 adopted a document purporting to establish regulations and a “general permit” for swine feeding operations, and to delegate the review and approval of such permits to an agent of the Fiscal Court, L. Thomas Hodges. As a Magistrate of the County and a member of the Fulton County Fiscal Court, James Black is obligated by state law to follow certain procedures in the adoption of or amendment of ordinances, and is further prohibited by Section 2 of the Kentucky Constitution from acting in a manner that is arbitrary.

8. Dennis Hulin is sued in his official capacity as a Magistrate of Fulton County, Kentucky and a member of the Fulton County Fiscal Court, which by motion on May 10, 2005 adopted a document purporting to establish regulations and a “general permit” for swine feeding operations, and to delegate the review and approval of such permits to an agent of the Fiscal Court, L. Thomas Hodges. As a Magistrate of the County and a member of the Fulton County Fiscal Court, Dennis Hulin is obligated by state law to follow certain procedures in the adoption of or amendment of ordinances, and is further prohibited by Section 2 of the Kentucky Constitution from acting in a manner that is arbitrary.

9. Ralph Wayne Adams, Jr., is the holder of a permit to construct and operate a swine feeding operation for up to 10,400 hogs in a 12 month period. Plaintiff seeks a declaration that the permit issued to Mr. Adams under the improperly-adopted regulation and “general permit” process is void as a matter of law for want of compliance with state law and that, absent a permit issued in compliance with Ordinance 97-5, no construction of operation of a facility for feeding and confining swine can occur, and appropriate injunctive relief as necessary to maintain the last lawful status quo and to assure compliance with law.

10. Matt Mose, along with partner Jim Mose, is the holder of a permit to construct and operate a swine feeding operation for up to 20,800 hogs in a 12-month period. Plaintiff seeks a declaration that the permit issued to Mr. Mose under the improperly-adopted regulation and “general permit” process is void as a matter of law for want of compliance with state law and that, absent a permit issued in compliance with Ordinance 97-5, no construction of operation of a facility for feeding and confining swine can occur, and appropriate injunctive relief as necessary to maintain the last lawful status quo and to assure compliance with law.

11. Jim Mose, along with partner Matt Mose, is the holder of a permit to construct and operate a swine feeding operation for up to 20,800 hogs in a 12-month period. Plaintiff seeks a declaration that the permit issued to Mr. Mose under the improperly-adopted regulation and “general permit” process is void as a matter of law for want of compliance with state law and that, absent a permit issued in compliance with Ordinance 97-5, no construction of operation of a facility for feeding and confining swine can occur, and appropriate injunctive relief as necessary to maintain the last lawful status quo and to assure compliance with law.

12. J. P. Ambers is the holder of a permit to construct and operate a swine feeding operation for up to 10,000 hogs in a 12-month period. Plaintiff seeks a declaration that the permit issued to Mr. Ambers under the improperly-adopted regulation and “general permit” process is void as a matter of law for want of compliance with state law and that, absent a permit issued in compliance with Ordinance 97-5, no construction of operation of a facility for feeding and confining swine can occur, and appropriate injunctive relief as necessary to maintain the last lawful status quo and to assure compliance with law.

13. Chad Allen Everett is the holder of a permit to construct and operate a swine feeding operation for up to 20,800 hogs in a 12 month period. Plaintiff seeks a declaration that the permit issued to Mr. Everett under the improperly-adopted regulation and “general permit” process is void as a matter of law for want of compliance with state law and that, absent a permit issued in compliance with Ordinance 97-5, no construction of operation of a facility for feeding and confining swine can occur, and appropriate injunctive relief as necessary to maintain the last lawful status quo and to assure compliance with law.

JURISDICTION AND VENUE

14. KRS 418.040 vests this Court with jurisdiction over an action by a plaintiff seeking a declaration of rights, alone or with other relief, where an actual controversy exists.

15. KRS 418.045 provides that any person "whose rights are affected by statute, municipal ordinance, or other government regulation" may apply to secure a declaration of rights and duties.

16. Barry Sharp is a person whose rights are and have been adversely affected by the adoption, without proper adherence to the requirements of state law, on May 10, 2005 of regulations and a “general permit” authorizing the construction and operation of swine feeding operations in Fulton County. Mr. Sharp’s interests include property, health, aesthetic, recreational, and informational interests in the use and enjoyment of his land and of other lands within Fulton County that may be adversely affected by the failure of the Fiscal Court of Fulton County to conduct hearings and make the requisite findings under Ordinance 97-5, and by the issuance of permits under the improperly-adopted regulation and general permit.

17. Injunctive relief may be obtained in conjunction with a declaration of rights "whenever necessary or proper."

18. Declaratory and injunctive relief is appropriate in this case since the requested declaration of rights will terminate the uncertainty and controversy that gave rise to the action. KRS 418.065.

19. This Court also has jurisdiction to entertain Plaintiff’s claim that the action of the Fulton County Fiscal Court in adopting the document described herein by motion on May 10, 2005 rather than through proper procedures for adoption of an ordinance under KRS Chapter 67, violates Kentucky Constitution Section 2 and is arbitrary government action.

20. Venue is appropriate in this Court pursuant to KRS 452.405(2), which provides that an action must be brought in the court where the cause of action, or some part thereof, arose "[a]gainst a public officer for an act done by him in virtue or under color of his office, or for a neglect of official duty[.]" Venue is appropriate in the county that includes the seat of county government.

BACKGROUND

21. Paragraphs 1-20 are incorporated herein by reference as if set forth below.

22. On May 27, 1997, the Fiscal Court of Fulton County enacted, after proper publication and after the requisite two readings on May 5, 1997 and May 27, 1997, Ordinance 97-5.

23. In relevant part, Ordinance 97-5 prohibited the construction, establishment or operation of a “confined hog facility” in Fulton County without a permit approving the location and conduct of such a business “issued upon the approval and authority of Fulton County Fiscal Court.”

24. “Confined hog facility,” as defined in Ordinance 97-5, included but was not limited to “confined hog barns, farrowing houses, gestation barns, nursery barns, feeding floors, finishing floors, and hog waste holding ponds.”

25. Applications for permits for a “confined hog facility” are required by the ordinance to be made to the office of the Fulton County Judge Executive “for consideration by the Fulton County Fiscal Court.”

26. Notice is required to be published under Ordinance 97-5 and a public hearing “shall be held on the application prior to consideration by the Fiscal Court.”

27. Factors to be considered in the permit process “will include adverse effects, if any, on soil, air, water, and other natural resources as well as any such effects on neighboring property owners’ peaceful use and enjoyment of their own property or on the public in general.”

28. According to the Draft Minutes of the Fulton County Fiscal Court, on May 10, 2005, at a meeting of the Fulton County Fiscal Court, “[w]ith [Magistrate] Black making the motion, Nelms second, and all voting aye, the Court approved the regulation process for swine feeding operations in Fulton County.”

29. The “regulation process” described in the Fiscal Court Minutes consists of a 5-page document captioned “Fulton County Permit for Swine Feeding Operations” and purporting to be a ”general permit” requiring submittal of a signed “Notice of Intent Permit Application” along with a USGS topographic map or aerial photo with the facility location clearly marked.”

30. The “permit” document purports to establish standard conditions for the general permit, including a duration of five years, setback requirements (which can be waived by adjoining landowners or residence owners), an obligation to comply with existing state and federal environmental regulations, a prohibition on open ponds, lagoons or open waste holding facilities, a requirement that solid and liquid manure waste be disposed of either by injection or by trucking said waste “to an approved facility” and prohibition on open storage or open application of the liquid or solid manure, and a requirement that dead animals not be left exposed on open fields and that they be disposed or buried within 48 hours.

31. According to the document, the regulations are adopted pursuant to Ordinance 97-5:

These (sic) regulations in this permit have been issued as authorized by the management of Fulton County Swine Ordinance(97-5) enacted on May 27, 1997, and as official regulations promulgated thereto. Issuance of this permit does not relieve the permittee from the responsibility of obtaining any other permits or licenses as required by federal, state and local agency. This permit shall not be construed to allow any operation in contradiction of any law, regulation, ordinance, or duly enacted order of any governmental union.

32. The document approved by the Fiscal Court at the May 10, 2005 meeting also purports to establish an “application and hearing process” as follows:

All applications shall be received by the Permit Coordinator. The Permit Coordinator shall immediately set a date for public hearing for notice and comment and advertise the application and hearing in the Hickman and Fulton paper. The advertising and hearing shall be held within 14 to 21 days of the date of the filing of the Application. Prior to the hearing date, the Permit Coordinator shall inspect the site and verify the mandatory setback limitations. The Permit Coordinator shall review and approve or deny the applications based solely on the permit criteria listed above.

33. The same document purported to appoint L. Thomas Hodges as the “Fulton County Swine Feeding Permit Coordinator.”

34. To the best of Plaintiff’s knowledge and belief, neither the text of the document captioned “Fulton County Permit for Swine Feeding Operations” nor a summary thereof was published as required by KRS Chapter 424.

35. To the best of Plaintiff’s knowledge and belief, the document captioned “Fulton County Permit for Swine Feeding Operations” and purporting to establish a general permit and regulations under Ordinance 97-5 was not given two readings on different days prior to adoption by motion by the Fulton County Fiscal Court on May 10, 2005.

36. The definition of “swine feeding facilities” in that May 10, 2005 document is more narrow than the definition in Ordinance 97-5 of a “confined hog facility,” since the former applies only to facilities confining, feeding, stabling or maintaining swine above certain numerical thresholds (400 pigs each more than 55 pounds in weight, or 1000 pigs of less than 55 pounds each), while the latter applies to all such facilities regardless of the number of swine confined, fed, stabled or maintained.

37. Ordinance 97-5 does not authorize adoption by motion of implementing regulations.

38. Ordinance 97-5 does not authorize appointment of a Permit Coordinator to receive, review, conduct hearings on and approve applications for permits for “confined hog facilities” or “swine feeding facilities.”

39. The May 10, 2005 document does not provide for consideration of the permit by the Fulton County Fiscal Court or consideration of the factors in Ordinance 97-5 prior to issuance of the permit.

40. On May 11, 2005, one day after the adoption by motion of the May 10, 2005 document, an application was made by Ralph Wayne Adams for a facility maintaining up to 10,400 hogs in a 12-month period.

41. On May 19, 2005 newspaper notice was provided that a public hearing would be held on June 2, 2005 at 1:00 p.m. for the purposes of notice and comment on the application.

42. On June 2, 2005, a public hearing was held at the Fulton County Office Building, at which detailed written and oral comments were submitted by the Plaintiff, among others.

43. That same day, the permit was approved over the signature of L. Thomas Hodges, without any findings of fact or conclusions concerning compliance with Ordinance 97-5, and without consideration of the permit application and a determination thereon by the Fulton County Fiscal Court.

44. On May 16, 2005, applications were made by Chad Allen Everett, Matt & Jim Mose, and J.P. Ambers for permits for swine feeding facilities.

45. Newspaper notice was provided that a public hearing would be held on June 9, 2005 at 1:00 p.m. for the purposes of notice and comment on the applications.

46. On June 9, 2005, a public hearing was held at the Fulton County Office Building, at which detailed written and oral comments were submitted by the Plaintiff, among others.

47. That same day, each of the permits was apparently approved over the signature of L. Thomas Hodges, without any findings of fact or conclusions concerning compliance with Ordinance 97-5, and without consideration of the permit applications and a determination thereon by the Fulton County Fiscal Court.

COUNT I

PLAINTIFF IS ENTITLED TO A DECLARATION THAT THE FULTON COUNTY FISCAL COURT VIOLATED THE MANDATORY PROCEDURAL STEPS IN KRS 67.076 BY ADOPTING REGULATIONS AND A PERMIT PROCESS THAT HAVE THE EFEFCT OF MODIFYING, VITIATING AND RESTRICTING THE APPLICATION OF AN ENACTED ORDINANCE WITHOUT ADHERENCE TO PROPER PROCEDURE OR ENACTMENT OF AMENDMENT OF AN ORDINANCE

48. Paragraphs 1-47 are incorporated herein by reference as if fully set forth below.

49. The document captioned “Fulton County Permit for Swine Feeding Operations and purporting to be a general permit, regulations, and appointment of a Permit Coordinator, adopted by motion of the Fulton County Fiscal Court on May 10, 2005, was adopted in violation of the mandatory notice, publication and reading requirements of KRS Chapter 67.

50. Since the document is intended to be of general effect and lasting in nature and is enforceable by its terms in Fulton County, it is a “county ordinance” under the definition in KRS 67.075(1) and must be subject to public notice and must be read on two separate days prior to being voted on. To the best of Plaintiff’s knowledge and belief, two readings on separate days were not provided prior to adoption by motion on May 10, 2005.

51. KRS 67.076 demands that “[n]o action embraced in the term “county ordinance” may be taken except by passage of a county ordinance” and that such action cannot be acted on by motion or resolution.

52. The document at issue was approved by motion on May 10, 2005 in direct violation of KRS 67.076.

53. Since the general permit process outlined in the document that was considered and voted on by Fiscal Court on May 10 was not properly advertised or considered on two separate days, as are required by KRS 67.077 subsections (2) and (1), this hearing process and delegation of authority for implementation of Ordinance 97-5 and approval of permits by the Permit Coordinator rather than the Fiscal Court, is unlawful and constitutes arbitrary action in violation of Section 2 of the Kentucky Constitution.

54. Plaintiff is entitled to a declaration that the document approved on May 10, 2005 is void ab initio for want of compliance by local government defendants with the mandatory obligations of KRS 67.075 - .077, and that the appointment of the Permit Coordinator contained therein is likewise void ab initio and of no legal effect. Hancock v. Terry Elkhorn Mining Company, Inc., Ky. App. 503 S.W.2d 710 (1973); Goss v. Personnel Board, Ky. 456 S.W.2d 819 (1970); Robinson v. Ehrler, Ky., 691 S.W.2d 200 (1985); and Commonwealth of Kentucky, Tourism Cabinet v. Stosberg, Ky. App. 948 S.W.2d 425 (1997).

55. Plaintiff is entitled to a declaration that the action taken by the Fiscal Court in violation of mandatory procedural requirements of state law for adoption of ordinances, constitutes arbitrary government action in derogation of Section 2 of the Kentucky Constitution.

56. Plaintiff is entitled to a declaration that any permits or authorizations issued pursuant to the procedures and standards of the document approved on May 10, 2005 is likewise void ab initio and of no legal effect. As a matter of law, an invalidly issued permit does not vest legal status in an otherwise illegal activity. Holloway Ready Mix Co. v. Monfort, Ky., 474 S.W.2d 80, 84 (1968), Ashland Lumber Company v. Williams, Ky., 411 S.W.2d 909, 911 (1966), Attorney Gen. v. Johnson, Ky., 355 S.W.2d 305, 308 (1962).

 

COUNT II PLAINTIFF HAVE DEMONSTRATED ENTITLEMENT TO INTERIM AND PERMANENT INJUNCTIVE RELIEF IN ORDER TO PREVENT THE FISCAL COURT FROM ISSUING FURTHER PERMITS UNDER STANDARDS AND PROCEDURES ADOPTED IN VIOLATION OF MANDATORY PROCEDURAL STEPS FOR ADOPTION OF ORDINANCES UNDER STATE LAW

57. Paragraphs 1-56 are incorporated herein by reference as if fully set out below.

58. Absent entry of a restraining order and preliminary injunction enjoining the unlawful issuance of permits, additional permits will potentially be issued in violation of Ordinance 97-5 without consideration of and approval by the Fulton County Fiscal Court on consideration of the criteria established in that ordinance, to the detriment of the property and health interests of Plaintiff and other residents of the county.

59. Plaintiff has demonstrated a substantial likelihood of prevailing on the merits of the claim that the adoption of the document on May 10, 2005 violated mandatory obligations under state law. The document itself purports to be regulatory in nature and to impose enforceable penalties, and has the effect of substantive rules of general and lasting applicability, and was required to be adopted only after notice and the requisite two readings.

60. The equities favor issuance of interim injunctive relief. The mandatory procedural steps for adoption of and amendment to ordinances represent the determination of the General Assembly as to the policy of the Commonwealth concerning the manner in which local government units conduct the public’s business, and the actions of the Fiscal Court in adopting the May 10, 2005 document and appointing a permit coordinator without adherence to statutory requirements violated the announced public policy of the state. Such actions constitute irreparable harm without the necessity for any further showing by Plaintiff of actual harm, and in such cases injunctive relief is appropriate to vindicate the public’s interest in adherence to state law by local government officials.

61. Preliminary injunctive relief is necessary and appropriate in order to protect the Court’s ability to fashion meaningful relief, and to prevent harm by restoring the last lawful status quo during the pendency of this case.

CONCLUSION AND PRAYER FOR RELIEF

WHEREFORE, for the reasons above stated, Plaintiff respectfully requests that this Court:

1. Accept jurisdiction over this action for a declaration of rights and injunctive relief,

2. Determine and declare that the document adopted by motion of the Fulton County Fiscal Court purporting to be regulations and a general permit for swine feeding operations and appointing a permit Coordinator to review and issue such permits, is arbitrary and violative of Section 2 of the Kentucky Constitution and is void for want of compliance with the mandatory requirements of KRS 67.075 - .077;

3. Determine and declare that all permits issued under the standards and procedures, and by the delegated representatives of the fiscal court under the May 10, 2005 document are void, and enjoin construction or operation of any swine feeding facilities purportedly authorized under such void permits;

4. Enter a preliminary and permanent injunction against the conducting of further hearings or issuance of permits under the standards and procedures of the May 10, 2005 document absent full compliance with KRS 67.075 -.077, and

5. For any and all other relief to which plaintiff may appear entitled.

Respectfully submitted,

Richard Null
214 Main Street
P.O. Box 1511 Fulton, Kentucky 42041
(270) 472-5801

W. Henry Graddy
Graddy & Associates
103 Railroad Street
P.O. Box 4307
Midway,Kentucky 40347

Counsel for Plaintiff

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