by CHRIS ROGERS
After a years-long regulatory and legal saga, a judge is set to rule in the coming weeks on the Daley Farm’s bid to expand its Lewiston dairy and get an exception to Winona County’s limit on farm size.
Olmsted County District Court Judge Kevin Mark ruled last month that members of the Winona County Board of Adjustment (BOA) — who actively opposed the farm expansion just before they supposed to serve as impartial judges of it — were biased, violating the farm’s due process right to a fair hearing. Now the question is, what should the court do to correct the situation? The attorney for the Daley Farm, Matt Berger, argued this week the judge should order the county to approve the farm expansion, while the county’s attorney, Paul Reuvers, wrote that the court should send the issue back to the BOA for fresh decision.
Berger and Reuvers disagreed on what case law says should happen in this situation, with Berger arguing that previous precedents establish that granting the exception the Daleys’ requested — called a variance — is the normal solution. Reuvers, conversely, argued that in parallel cases in the past, courts have always sent the decision back to the government for a redo. In part, they disagreed over which past cases are the best parallel to the current situation.
When governments act improperly to deny a variance, “the standard remedy is that the court orders the permit to be issued,” Berger wrote, quoting a Minnesota Supreme Court case. Quoting from another court case, Berger noted that the general rule is that governments who violated citizens’ rights should not be given “a second bite at the apple.”
The county shouldn’t get a second chance for their preconceived decision to pass legal muster, Berger contended, writing, “… remanding this proceeding to the Winona County Board of Adjustment for reconsideration — rather than applying the general rule and directing Winona County to grant the variance — would merely give Winona County a second opportunity to justify the decision that county officials made about Daley Farm’s proposed [expansion] before the variance application was ever heard in the first instance.”
Ordering governments to issue variances is the appropriate legal solution when governments’ decisions clearly don’t match the facts in the case, but that’s not the situation here, Reuvers argued. In previous court filings, Reuvers has pointed out that the Daleys were seeking to expand their dairy feedlot to nearly quadruple the size allowed by the county zoning ordinance. A variance that big is tantamount to rewriting the zoning code, he maintained. While a judge has ruled the BOA decision-makers were biased, the Daleys’ variance request didn’t meet the criteria for granting the variance in the first place, regardless of who was making the decision, Reuvers maintained. When the decision the government reached wasn’t inherently wrong or improper, but the process was flawed, the normal and appropriate remedy is to send it back to the government for a fresh decision with the right process, he wrote this week, citing the same Minnesota Supreme Court case as Berger did. “To grant [Daley Farm’s] requested variance, despite their admitted failure to meet the required variance criteria, would not only be imprudent, it would be a violation of the separation of powers principles undergirding this court’s review,” Reuvers wrote, citing the separation of powers between courts and local government.
The BOA members whom Mark ruled were biased are no longer on the BOA. The County Board appointed new members to the BOA this month in a series of 3-2 and 4-1 votes. Reuvers pointed to this fact as another reason to send the variance request back to the new BOA. Berger saw it differently.
While the BOA has changed, the same County Board members — who, according to the judge, intentionally appointed BOA members they knew would oppose the Daley Farm expansion — are still in charge, Berger noted. Pointing out that County Board members Marie Kovecsi, Chris Meyer, and Greg Olson appointed the former BOA members despite citizens and other County Board members raising concerns about the appointees’ impartiality, Berger wrote, “Given this history, there is simply no reason to believe that Winona County will act differently now than they did in January 2019.”
The new BOA members were actually appointed by different mixes of County Board members than the Kovecsi-Meyer-Olson trio that appointed the reportedly biased BOA. Meyer joined rural County Board members Marcia Ward and Steve Jacob in appointing Jordan Potter to the BOA, and Ward joined Kovecsi, Meyer, and Olson in appointing Kelsey Fitzgerald.
Finally, Berger argued a redo would be “incredibly unfair to Daley Farm,” which has already been battling for over two years — at great cost of time and money — to get fair treatment from the county. “A remand for reconsideration would merely exacerbate this unfairness, create further delays, and force Daley Farm to incur even greater expense,” Berger wrote. “This is exactly the type of abuse and unfairness that the general rule and standard remedy are intended to avoid.”
Judge Mark took these arguments under advisement on Jan. 4 and is expected to make a ruling in the near future.