By Wally Kennedy

wkennedy@joplinglobe.com

Richland Township in Barton County will attempt to convince the Missouri Court of Appeals, Southern District, on Thursday that it has the right under state law to regulate land-use areas as they relate to factory hog farms.

In April 2007, 81 percent of the 206 Richland Township residents who cast ballots voted to enact zoning regulations amid rumors that a large hog farm was moving into the community near Lamar. It was the highest voter turnout in the history of the township.

Kenoma LLC started work on a 2,400-hog farm in June 2007, and the township sued the company in July, alleging violation of township rules.

Kenoma is a farmer-owned company contracting with Synergy, a pork producer with offices in Lamar and Sully, Iowa. Kenoma raises nursery pigs to be finished in Iowa. Kenoma owns the structures and employs workers; Synergy owns the hogs.

The suit was heard in Barton County Circuit Court by Judge Carl Gum, who was appointed by the Missouri Supreme Court to hear the case after Circuit Judge James Bickel bowed out because of a prior commitment.

Gum ruled in favor of Kenoma and against the Richland Township Board.

According to a ruling Gum released in December 2007, the 2,400-hog farm has the right to operate, even if those operations violate the township’s zoning regulations.

Gum cited a zoning exemption for “farm structures,” and an alleged violation of the Missouri Sunshine Law by the township board and zoning board as reasons for his ruling.

Francis Forst, one of owners of Kenoma, was so confident he would get a ruling in his favor that he continued work on the $3 million hog farm even after the lawsuit was filed by the township.

“It’s a very good day for agriculture in Barton County,” Forst said after the ruling. “I appreciate our legal system that protects what I can do on my private property.”

Gregory Harris, chairman of the Richland Township Planning and Zoning Board, said last week that it is imperative that the residents of the township be given the right to control where factory farms locate “since the state is incapable of enacting reasonable and fair standards.”

On Thursday in Springfield, the township will be represented by John Price, a Springfield attorney who specializes in environmental law. Price represented the township before Gum.

Robert Brundage, legal counsel for the Missouri Agribusiness Association, represented Kenoma in the lawsuit. He will represent the company at the appellate level.

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.