WINONA — Going against what he called his normal routine, 1st Judicial District Judge Kevin F. Mark ruled Monday in favor of Daley Farm, LLC. of Lewiston in its case against Winona County concerning a decision made by the county's Board of Adjustments made in February 2019.
Mark said the bias of certain members of the Board of Adjustments "so severely tainted" the quasi-judicial process that "everybody needs to know that right now."
The judge said he will take up to 90 days to determine the remedy for the Daleys in this case – whether to send the Daleys' request for a waiver of the county's animal unit cap back to the board to re-hear or to order the county to grant the waiver without further hearing.
Making Their Case
Over the course of about 50 minutes, Matthew Berger, attorney for the Daleys, outlined the process by which Land Stewardship Project worked in conjunction with members of the Winona County Board to place LSP members on the Board of Adjustments for the purpose of voting against the Daleys’ waiver request.
In July 2017, the Daleys filed a request with the Minnesota Pollution Control Agency for environmental review and a modified National Pollution Discharge Elimination System permit. The environmental review came up for public comment in October 2018, and at that point, Berger noted, LSP began working in earnest behind the scenes to influence the decision against the Daleys and their proposed dairy expansion.
“The deck was stacked,” Berger said.
He outlined how two individuals, Cherie Hales and Rachel Stoll, who would be named to the Winona County Board of Adjustments – the committee that would approve or deny the application for a waiver of the animal unit limit – six weeks ahead of the board hearing on the topic were actively working with LSP to stop the Daleys’ project.
Hales, for example, was part of an LSP steering committee that was organizing opposition to the Daleys’ proposal. This included an analysis of the project and whether it met the guidelines for a waiver by the county. In an email to LSP Factory Farm Organizer, Hales noted that the project did not meet the standards to be rejected, and thus LSP would need to find a new path to block it.
Stoll volunteered her time to pour over county records as part of an LSP investigation into Daley Farm to find any irregularities with the dairy.
Both Stoll and Hales also made public comments during the environmental worksheet process expressing opposition to the Daley Farm project, as did Wendy Larson, a third person appointed to the Board of Adjustments in the weeks ahead of the waiver hearing.
'The Grand Conspiracy'
Finally, Berger noted, LSP conspired with members of the Winona County Board of Commissioners, particularly Marie Kovecsi, to get Kovecsi seated as the chairwoman of the county board on Jan. 3, 2019, so that she was in a position to control the appointments to fill vacant Board of Adjustment positions.
For several years, the county had selected its chairperson on a rotating basis. For 2019, the rotation was set to place Steve Jacob, who represents one of two rural districts in the county, as chairman. However, during that Jan. 3, 2019, county board meeting, commissioners Greg Olson and Chris Meyer nominated Kovecsi, going against the board’s unwritten rule of rotation.
What Berger called “the grand conspiracy” was outlined in an email from LSP employee Doug Nopar to Hales on Oct. 29, 2019. That was later followed up with phone calls and a backroom meeting that included Kovecsi and Hales where the pair selected potential Board of Adjustment members based on their opposition to the Daleys’ project.
In defense of Hales, Stoll, LSP and the county, attorney Paul Reuvers said Hales, Stoll and Larson were all questioned by Deputy County Attorney Stephanie Nuttall questioned at the Feb. 21, 2019, hearing, and each claimed they would be able to put aside their own feelings while considering the case.
Berger also questioned the Board of Adjustment members concerning the appearance of bias and prejudice during that hearing.
Explanation From The Judge
None of that mattered, Mark said.
“I’m not criminalizing anyone here,” Mark said in his ruling. “I’m not faulting LSP or its members who advocate. … But when three of five members (of the BOA) have advocated against the applicant at the MPCA level, there’s no way that person can be a fair and impartial judge in this case.”
Mark said no matter what you believe concerning the merits of the Daleys’ proposed project – and those in opposition might have good reasons – allowing Hales, Stoll and Larson to vote on a quasi-judicial board “can’t be allowed to stand.”
Mark said he would give both sides until the of the day Jan. 4 to submit any information they believe is relevant toward his decision on a remedy for the case. Mark said he will either order the county to grant the waiver or remand the decision back to the Board of Adjustments. Although he admitted sending it back to the same body that showed bias and prejudice in the first place could be problematic.
Ben Daley, one of the principle owners of Daley Farm, said he was happy with the judge’s decision Monday, but acknowledged this is just a first step in what he hopes will ultimately lead to allowing his business to expand to support more family members and more employees in the future.
“It was a relief that he ruled the way he did,” Daley said. “We’re surprised he did it from the bench. I was expecting something in 90 days. But to be honest, considering how blatantly obvious everything was in the information we got, I’m not surprised either that he ruled that fast.”
As for the next step, Daley said remanding the case back to the Board of Adjustments, “doesn’t seem fair based on how they set it up to begin with to be the way it was.”