Daley Farms denied waiver to expand operations
The Winona County Board of Adjustment's 2-2 vote is another blow for the Lewiston dairy's hope to grow.
WINONA — Nearly three years after the first denial, the Winona County Board of Adjustment again denied a request from Daley Farms of Lewiston for a waiver of the county's animal unit cap for feedlots during its meeting Thursday.
With just four members of the BOA present – BOA chairman Robert Redig, who testified at public hearings against the Daley's proposed project recused himself from the hearing on Thursday – during the meeting held at the Express Suites Riverport Conference and Event Center in Winona.
The board voted 2-2, with acting board chairman Jordan Potter voting in favor of the waiver along with Philip Schwantz, who is the only BOA member remaining from the 2019 version of the board. Board members Kelsey Fitzgerald and Elizabeth Heublein voted against the waiver.
Assistant Winona County Attorney Stephanie Nuttall said because the vote was tied, the waiver request was not approved.
Daley Farms, a family-owned dairy just west of Lewiston, had submitted an application to the county in 2018 asking for a waiver of the county's 1,500 animal unit cap for feedlots.
Watching for bias
The meeting began with Nuttall questioning the board members on any prejudice they might bring into the meeting about the waiver request or any connection they might have with Land Stewardship Project, an environmental and agricultural organization that has worked to bring opposition to the Daley's proposal.
During a BOA hearing on the waiver request in February 2019, three members of the board who voted against the proposal were later found to have prejudged the case before the Daleys were able to make their case and public input could be heard.
The case wound its way through the courts, making it to the Minnesota Court of Appeals which required the Minnesota Pollution Control Agency to again assess the environmental impact of the proposal so as to include an assessment of the impact the proposed dairy expansion would have on greenhouse gasses and climate change.
In a separate court case, Minnesota 1st Judicial District Judge Kevin F. Mark reversed the original waiver denial by the 2019 BOA and remanded the decision back to the current BOA due to bias against the project by three board members at the time.
The proposed project
The dairy currently has 1,996 AU at its main feedlot, but those numbers were there before the county's animal unit cap was enacted in 1998. The Daleys want to expand their operation to 5,957 AU, or by adding about 3,000 cows. The project included a manure management plan approved by the MPCA that would spread manure over nearly 4,200 acres.
The Daleys also proposed adding another 900 acres of alfalfa to their crops. Alfalfa is known as a "scavenger" of nitrates, said Winona County Planner Lew Overhaug, who presented the findings of county staff concerning the waiver request.
“So, there are benefits to this proposal," Overhaug said.
The BOA needed to consider eight criteria and approve findings of facts during the course of the hearing. Seven of those criteria were approved – some unanimously and some by a 3-1 vote with Heublein consistently being the lone dissenting vote. But the board stalemated on item six which stated that for a variance to be granted, economic considerations alone could not constitute the practical difficulties that have forced the waiver request.
On item six, both Heublein and Fitzgerald voted to uphold the staff evaluation that economic considerations were the lone motivating factor, while Potter and Schwantz agreed with the assessment of the Daleys' attorney, Matthew Berger, that the Daleys were motived by other considerations.
Fitzgerald said that because of her feelings on item six, she was voting against the overall waiver request.
Heublein said she was more concerned with water usage increases that would come if the proposal was approved.
While water usage concerns for the project are in the purview of the Minnesota Department of Natural Resources, Overhaug said, Heublein said it remained her main justification for voting against the proposal.
Next for Daley Farms
"The findings that were adopted today, the actual findings, demonstrate that this variance request actually meets the criteria set forth in state law," Berger said after the meeting. "The record is very clear on the motivation for this project. The way they went about their findings clearly shows their finding on criteria six is not supported by the factual record and is arbitrary and capricious."
Ben Daley said the family will consider all options, and another round of appeals is a possibility.
His sister, Shelly DePestal, said she was concerned about how the decision would impact other farms that do business with Daley Farms, and agriculture businesses in the area that rely on the Daleys and other farms to survive.
"Dairy in this county is on a precipice, and it's teetering," DePestal said. "The small farmers, they're here in this room, and they need us. The businesses we do business with, they do business with them."
One option that isn't likely on the table, Daley said, is moving out of Winona County. Daley Farms has been in the county for about 150 years, he said. But if they tried to move, they'd first need to sell their existing dairy, which is unlikely to happen given the county's climate for dairy operations.
"If we were going to start from scratch, we'd have to sell the dairy we have," he said, "and no one wants to own a dairy in Winona County."