WINONA — First Judicial District Judge Kevin F. Mark has ruled that a February 2019 decision by the Winona County Board of Adjustment is void and the 2021 version of that board must again hear the request for a waiver by Daley Farm LLC of Lewiston.

According to the ruling, which was filed Monday, the court ruled from the bench that the "Board of Adjustment decision in denying Plaintiff's variance application was so severely tainted by the conduct of three of the Board members that it could not be sustained."

FURTHER READING: Judge: Winona County board 'severely tainted' in decision against Daley Farm

Mark noted that even though the three BOA members who voted down the variance request by Daley Farm had pledged to be fair and impartial, "that did not negate that three members publically (sic) advocated against the project at the MPCA and continued their zealous advocacy throughout the variance process."

All three members of the BOA who voted against the Daley variance request — Cherie Hales, Rachel Stoll and Wendy Larson — were Land Stewardship Project members.

Newsletter signup for email alerts

"They might have good reasons aside from the bias that obviously accompanied them to that level, but it just can't be allowed to stand because it is tainted," the judge noted.

While the previous ruling by the BOA has been voided, the court remanded the decision back to the current Winona County BOA, which is comprised mostly of different people.

The only holdout from the board during the February 2019 hearing is Philip Schwantz. Stoll, Hales, Larson and Larry Greden have all left the BOA. In their place are Robert Redig, Elizabeth Heublein, Kelsey Fitzgerald and Jordan Potter.

Schwantz voted for the Daley Farm waiver in 2019, and he had avoided public comments or votes on a township board in support of the Daleys' project before the February 2019 BOA meeting.

While Redig was not part of the BOA in 2019, he made several statements against the Daley Farm proposal, and is listed by LSP as a member of the organization.

Ben Daley, one of the owners of Daley Farm, said Redig has long taken a stance against the proposed expansion of his farm, and would fall into the same category as Stoll, Larson and Hales as biased against the waiver request.

Ben Daley, an owner and operator at Daley Farms near Lewiston, shown in this Jan. 22 file photo, said Monday that he was both surprised Judge Kevin F. Mark ruled in his favor so quickly and not surprised considering "how blatantly obvious everything was in the information we got" from Land Stewardship Project concerning its role in the case. (Andrew Link / alink@postbulletin.com)
Ben Daley, an owner and operator at Daley Farms near Lewiston, shown in this Jan. 22 file photo, said Monday that he was both surprised Judge Kevin F. Mark ruled in his favor so quickly and not surprised considering "how blatantly obvious everything was in the information we got" from Land Stewardship Project concerning its role in the case. (Andrew Link / alink@postbulletin.com)

"Who knows if he's going to recuse himself," Daley said.

As for how the other three might vote is anyone's guess. Commissioner Marcia Ward said Kelsey Fitzgerald is an organic farmer. Heublein's place on the BOA was achieved after a 3-2 vote by the Board of Commissioners, with Ward and Steve Jacob, the two rural commissioners, voting against her.

Finally, during his race against Commissioner Greg Olson for a seat on the county board last fall, Potter told the Post Bulletin: "I don’t think an animal (unit) cap is doing what we set out to do. Smaller farms fly under the radar and get away with things larger farms can’t do."

If Redig recused himself from voting on the Daley Farm waiver request due to his past statements against the farm's proposed expansion, that could leave a 2-2 tie vote for the waiver request.

Ward said, in that instance, she's not sure what the outcome might be.

"A lot of times, if it's a tie vote, it fails," she said.

That would not bode well for the Daleys and their plans.

"We'd have to think long and hard on what we want to do moving forward," Daley said.