Gum rejected the plaintiff’s argument that it was regulating hog densities rather than farm structures.

“By regulating the number of hogs, whether confined or unconfined, plaintiff is regulating farm structures housing confined hogs,” he wrote.

Gum also ruled that the township’s zoning handbooks are void and unenforceable because the board allegedly violated the Sunshine Law and couldn’t prove that it had met the requirements for notification of public meetings.

During the hearing before Gum, two signed affidavits were presented by witnesses who said they saw the postings of the meetings in compliance with the Sunshine Law. The court accepted the affidavits with other papers. But the affidavits turned up missing when the court papers were filed with the appellate court.

Without the original affidavits, the township could not validate that the Sunshine Law had been followed. Gum said he did not have the affidavits. But a recording of the hearing showed that the affidavits were entered into the record and that the judge had accepted them. Because of that, the township was allowed to present copies of the affidavits to the appellate court.

Another lawsuit

The case being appealed is the first of two legal actions against Kenoma and Synergy. In November 2008, more than 30 people with homes in rural Barton County filed a nuisance lawsuit against the companies.

The property owners, represented by Charles Speer, a Kansas City lawyer who specializes in environmental law, allege that odors stemming from the concentrated animal feeding operations have deprived them of their ability to enjoy their homes and have caused “substantial damage” to their quality of life.

They allege that the hog farms, waste-holding lagoons and waste-storage pits, and the spreading of hog waste as fertilizer on farmland near their homes create unbearable odors and toxic gases, including hydrogen sulfide, methane and ammonia. They allege that they have experienced nausea, gagging, vomiting, headaches, anxiety, and burning skin, eyes and throats because of the odors.

When the lawsuit was filed, the company’s attorney, Eldon McAfee, based in Des Moines, Iowa, said he has represented Synergy for a number of years and has found the company “to be conscientious about environmental compliance and respecting the rights of neighbors. We regret this lawsuit has been filed, and we will do everything we can to reach a resolution that respects the rights of neighbors and the rights of family farmers who formed this company.”

Precedent

In the Richland Township case, Carl Gum, a senior judge who works via appointment by the Missouri Supreme Court, ruled in line with a similar case in 1997 in Putnam County, where Lincoln Township mounted a legal challenge against Premium Standard Farms, a hog operation. In that case, the Missouri Supreme Court ruled that a township did not have the authority under state law to regulate agricultural structures.