Circle K hog farm case gets its day in court

September 23, 2017 GMT

ST. PAUL — A three-judge panel will deliver its decision within 90 days after oral arguments were held Thursday at the Minnesota Court of Appeals in St. Paul in the case brought against the Goodhue County Board of Commissioners and Circle K Family Farms.

At stake is the conditional-use permit issued by the Goodhue County Board of Commissioners for a hog confinement barn located about five miles outside Zumbrota. The facility for finishing hogs — those animals between 55 and 300 pounds — would house 4,700 animals with a liquid manure storage tank with a volume of 3.5 million gallons.

The Minnesota Pollution Control Agency conducted an environmental review last fall, determining that the facility posed no significant environmental risk, and the Goodhue County board approved the CUP in February.

However, neighbors of the proposed hog facility have opposed it at every step, taking their case to the MPCA, the county and now the Minnesota Court of appeals.

“The county, instead of doing what is reasonable and right by their own ordinances, substituted the will of the Kohlnhofers and their own staff,” said Kristi Rosenquist, one of the neighbors who filed the appeal against the county’s decision. “It was the county’s burden to prove this is not going to diminish the livability and property values of those of us who already live in the area and have lived there for decades without any large hog facility in the area.”

Appeals Court judges Lucinda Jesson, Denise Reilly and Peter Reyes Jr. listened to 35 minutes of discussion from attorneys on both sides of the case. Jeff Brown, a Duluth attorney representing the petitioners, took the opening 15 minutes highlighting three key points.

Brown’s arguments mainly focused on health, environmental and livability issues. He said the county did not follow its own rules regarding odor and hydrogen sulfide setbacks because it did not account for the dead animal compost bin which would be located between the main hog confinement building and the nearest neighbor.

The judges, however, focused more on the possible diminishment of property values for the neighbors, with Jesson asking how the petitioners proved their property values would diminish if they’d done no market studies or appraisals.

Reyes asked Brown how the county could include the animal compost site as part of the air quality modeling, when the model does not account for it.

Brown responded that the county’s ordinance is “replete with examples” of considering all odors — including those of rotting animals — and the University of Minnesota expert who developed the odor model software ran a new odor model that included a value for the compost bin. That new model showed the project does not meet the odor offset requirements for the nearest neighbors.

“The odor offset setback ordinance is one of the key ordinances they violated by not including this 30-by-54-foot dead animal compost bin,” Brown said. “The MPCA findings don’t allow the county to ignore its own rules. They can adopt the findings, but they still must follow their rules.”

Jason Kuboushek, the Bloomington attorney representing the county, said odor offset model done by the University of Minnesota did not include the compost bin because it was not required by the MPCA or the county in its ordinance, and any attempt to use a new model that includes the bin is unfair.

“How can you put this new burden on us?” he asked.

He said the MPCA review is the state standard on odor offset modeling, and that standard showed the proposed project meets offset standards for both the MPCA and the county.

Part of the reason the modeling software for odor does not include the compost bin is the software does not take into account many factors.

“The model is a simple tool,” said Dustan Cross, the New Ulm attorney representing the Kohlnhofers. “It’s a crude tool not specific enough for this situation.”

Cross said making up an odor factor — which he said the petitioners did when they ran their own version of the model — isn’t scientific, nor is it fair to the county or the applicants. “The county administrative staff said the variable is arbitrary and capricious.”

While the compost pile was taken into account during the environmental review process, Cross said, it isn’t part of the air quality modeling because of those limitations in the software.

“The county quite properly indicated it was speculation to just make up a number,” he said.

Yon Kohlnhofer said the idea that property values would decrease was not supported by facts. The Kohlnhofers have several other hog facilities in Goodhue County, and the value of the property next to those sites has increased over the years.

That, Jeff Kohlnhofer said, is why the family plans to eventually put a house on the property next to the new hog facility.

“We’ve been out there for 20 years,” Yon Kohlnhofer said. “They could have looked at the prices before and after we came in. The cropland has gone up, the property values have gone up. We try to buy houses (next to our existing sites) so we can put employees into them, and they cost too much money.”