By Wally Kennedy
wkennedy@joplinglobe.com
EAGLE ROCK, Mo. — The construction permit for a poultry farm with 65,500 chickens within a mile or so of Roaring River State Park, near Eagle Rock, has been stayed by an administrative hearing judge for the state of Missouri.
But the developer of the concentrated animal feeding operation, Michelle Ozbun, said Tuesday that the stay is “a temporary hurdle” that will be overcome, and that the zero-emission CAFO will be in operation as scheduled in January.
She said the poultry farm has four main buildings, and that the construction of those buildings is complete. The stay bars any further action at the site pending more action by the administrative judge.
Ozbun plans to obtain pullets from George’s Processing Inc., Butterfield, and grow them under contract for that company.
The Missouri Department of Natural Resources must issue an operating permit before the CAFO can obtain the pullets. That is not expected to take place until after an appeal of the request for an operating permit has been heard by the Administrative Hearing Commission on Jan. 7. The commission noted that “many people have appealed the issuance of the permit.”
One of the appellants, Mark Stephenson, a Joplin resident who has an interest in a farm near the construction site, filed a motion to stay the effect of the construction permit on May 30. The hearing on the stay was conducted July 18.
Stephenson represented himself. Assistant Attorney General Timothy Duggan represented the DNR. Permit holder Ozbun testified as a witness for the DNR.
The commission, which issued its ruling late last week, granted the stay after Stephenson produced evidence that the developer had not obtained permission from two property owners who had to waive a setback or buffer requirement for operation of the CAFO.
Stephenson, a Realtor with Brookman Realty in Joplin, produced evidence that only Walter Henke Jr. had signed the waiver. His wife, Phyllis Henke, who also holds title to the property, initially signed the waiver but rescinded her approval after being approached by Stephenson.
The stay was issued after Stephenson produced a notarized signature, obtained by his wife, a notary public, that showed Phyllis Henke opposed the buffer-zone waiver.
When the DNR was alerted about the problem, it sent a document to Phyllis Henke asking her to clarify her position. She signed the document, expressing agreement with the waiver. The document was entered into evidence, but it was not notarized.
At issue is whether Phyllis Henke, who reportedly has Alzheimer’s disease, can represent herself. Ozbun said Phyllis Henke, whom she has known for many years, “lives in the moment.” Ozbun said Henke’s husband recently obtained legal power of attorney with regard to his wife.
Stephenson, who acknowledged that Phyllis Henke apparently has “a memory problem,” said he and his wife stopped by the Henke home near Eagle Rock and talked with the couple about purchasing the property to prevent the CAFO from being constructed.
“She (Phyllis Henke) said to us that she had not given her permission, although the deed was in both their names,” Stephenson said. “Only he had given his permission.”
The DNR later notified Ozbun of the rescinded waiver and said the matter needed to be straightened out before an operating permit could be issued.
Ozbun said she provided the DNR with the documents it needed, including one with a notarized signature by Phyllis Henke showing she agreed to the setback waiver. But that notarized signature was not submitted into evidence.
“We had a notarized signature, but it was overlooked and not put into evidence,” Ozbun said. “Somebody overlooked something. It’s a fluke thing. Somebody messed up. As it stands now, we are not sure where we are with this.”
She said she is obtaining counsel with a law firm in Jefferson City “to get the stay released and do whatever I need to get my permit. Going without legal counsel won’t happen again.”
Ozbun said she is not receiving any assistance from George’s in her fight to get the permit.
“It’s just me he (Stephenson) is fighting,” she said. “I could go for 1,000 less chickens, and I would not need a permit over me. By getting a permit, the DNR has more authority over me. If I have fewer chickens, there would be no need for a permit. He (Stephenson) is shooting himself in the foot, in a way, by opposing this permit.”
Ozbun, who said she borrowed $1 million to construct the chicken houses, vowed to “not lose a century farm because of what I decide to do for a living on my own property. I cannot afford to lose this, and I won’t because I would lose this farm, and I won’t lose this farm.”
Derek Steen, who supervised the construction permit, said the DNR “will not issue an operating permit to the facility until the issue has been adequately resolved.”
Steen noted that when the construction permit was issued, the agency “had received the required buffer waiver documents from both the husband and wife,” but that a document that rescinded the earlier document from Phyllis Henke had been submitted by Stephenson.
Glen Balch, spokesman for George’s Processing Inc., Springdale, Ark., could not be reached for comment Tuesday.
Tribunal
The Missouri Administrative Hearing Commission is a neutral, independent, administrative tribunal that has jurisdiction over 100 statutorily specified matters, including state taxes, professional licensing, Medicaid-provider issues and state permits.
In calendar year 2003, nearly 2,400 cases were filed with the commission. The commission makes decisions under a contested-case procedure, usually involving a trial-type hearing. All such decisions are subject to judicial review.
