Betty Carol Taylor v. Mississippi Environmental Quality Permit Board

205 So. 3d 1129, 2016 Miss. App. LEXIS 164
CourtCourt of Appeals of Mississippi
DecidedMarch 29, 2016
Docket2014-SA-01545-COA
StatusPublished

This text of 205 So. 3d 1129 (Betty Carol Taylor v. Mississippi Environmental Quality Permit Board) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Betty Carol Taylor v. Mississippi Environmental Quality Permit Board, 205 So. 3d 1129, 2016 Miss. App. LEXIS 164 (Mich. Ct. App. 2016).

Opinion

JAMES, J.,

for the Court:

¶ 1. Betty Carol Taylor appeals from the Greene County Chancery Court’s order affirming the decision of the Mississippi Environmental Quality Permit Board (Permit Board) granting a variance from the siting criteria and issuing permit coverage for the operation of a poultry farm to her brother and neighbor, Robert Curtis Er-rington. Finding no error, we affirm.

*1131 FACTS AND PROCEDURAL HISTORY

¶2. In 1979, Errington established Er-rington C. Poultry Farm #2 (Errington Poultry) with three poultry houses that were constructed between 1979 and 1980. At that time, Mississippi had no regulations specifying siting criteria or otherwise requiring that poultry facilities be located a certain distance from adjoining property boundaries, residences, or businesses.

¶ 3. In 1994, the Mississippi Commission on Environmental Quality (Commission) imposed siting criteria that established a buffer zone 'for poultry facilities constructed or modified after February 24, 1994. Poultry farms in operation before February 24, 1994, were not required to meet siting criteria or provide buffer-zone waivers from affected landowners. As a result, Errington Poultry was grandfathered into the newly enacted regulations. However, poultry facilities that generated dry litter or waste that were “constructed, significantly enlarged or altered after February 24, 1994,” were required to comply with the siting criteria. Miss. Admin. Code R: ll-6.1.1.1(C)(2)(c). 1 The siting criteria established a buffer zone that required poultry facilities- to be “at least 600 feet from the nearest non-owned (by the applicant) occupied dwelling or commercial establishment and 150 feet from the nearest adjoin: ing property line.” Id.

¶ 4. On February 1, 2009, the Mississippi Department of Environmental Quality (MDEQ) issued the Dry Litter Poultry Multimedia Animal Feeding Operation General Permit (General Permit). MDEQ sent correspondence including a Notice of Intent (NOI) form to all poultry farmers in its database in order to give them notice to apply for coverage under the new General Permit. On March 2, 2009, Errington Poultry submitted an NOI to MDEQ for coverage under the General Permit for the operation of its existing facility. The NOI contained the following question relating to the siting criteria:

Are all poultry houses[ ] that have been constructed or enlarged after February 24, 1994, at least 600 feet from all occupied dwellings or commercial establishments not owned by the applicant and at least 150 feet from all adjoining property lines?

¶ 5. Errington answered “yes” to this question because Errington Poultry’s houses were all constructed prior to February 24, 1994. The NOI instructed each applicant to attach completed and notarized buffer-zone waivers if the applicant answered “no” to any of the questions. The cover page of the NOI instructed applicants to submit required forms at least 180 days prior to commencing construction or planned operations. Because Errington was not planning on enlarging any of the existing houses or increasing the number of houses, he was not required to provide buffer-zone waivers from residents within the buffer zone.,

¶ 6. Around this time, Errington Poultry’s chicken supplier, Marshall Durbin Companies, began prohibiting its poultry farmers from operating open-style poultry houses such as the three houses that Er-rington Poultry had been operating since its establishment. Marshall Durbin began requiring its poultry farmers to replace old open-style chicken houses with modern, closed-style poultry houses. In order to comply with this standard, Errington con *1132 structed a modern closed-style poultry house in the summer of 2010.

¶ 7. On October 19, 2010, Errington submitted an updated NOI seeking to add one new poultry house to his existing facility and to demolish and replace an existing poultry house. To the question on the NOI asking whether the siting criteria was met, Errington answered, “No. Attach Waiver.” MDEQ had received an unno-tarized buffer-zone waiver signed by Er-rington’s mother, Iva Mae Errington, an adjoining landowner with a residence inside the buffer zone on September 23, 2010. Iva Mae Errington later submitted a notarized waiver.

¶ 8. On January 19, 2011, MDEQ staff performed a pre-permitting site inspection of Errington Poultry. The inspection revealed that Errington had already constructed and was operating the new poultry house that he had built during the summer of 2010. However, MDEQ staff mistakenly believed that the 2010 house was in compliance with the buffer-zone requirements. Tracy Tompkins, chief of MDEQ’s Agricultural Permitting Branch, who oversaw staff who processed the permit application, testified that the site-inspection-report drawing made it appear as if Taylor’s home was outside the 600-foot buffer zone. However, the actual distance between the 2010 poultry house and Taylor’s home was 393 feet. Believing that no buffer-zone waiver was required from Taylor, MDEQ mistakenly issued coverage under the General Permit to Errington Poultry .on March 9, 2011, for the operation of four total poultry houses, which included the proposed replacement house.

¶ 9. It is well documented in the record that the relationship between Errington and Taylor developed into animosity emanating from disagreements relating to Er-rington’s choice of women that he dated. This animosity eventually culminated into a physical altercation between the two siblings on February 2, 2011. Errington claimed that as a result of the physical altercation, Taylor pressed criminal charges and pursued civil proceedings against him, including the present dispute. Taylor candidly admitted that she and Er-rington do not get along, but stressed that their estranged relationship is not relevant to her motives in opposing Errington’s permit coverage. Iva Mae disagreed, and testified that the physical altercation, which occurred at her home, was the sole reason that Taylor objected to Errington’s new poultry houses. Iva Mae also testified that Taylor had never complained about Errington Poultry’s operations prior to the falling out between her children.

¶ 10. In December 2011, Iva Mae Er-rington conveyed 2.3 acres of land located between Taylor’s property and Errington Poultry to Taylor. Prior to the transfer, Taylor was not an adjoining landowner to Errington. After the transfer, Taylor had the property surveyed. The surveyor advised Taylor that Errington Poultry did not meet MDEQ’s siting criteria. Upon learning this, Taylor contacted MDEQ in order to determine how far away a poultry house had to be from a residence. She was then advised of the 600-foot buffer zone and immediately presented a complaint to MDEQ against Errington for operating his poultry farm within the buffer zone.

¶11. On December 19, 2011, MDEQ conducted a compliance inspection to evaluate Errington’s compliance with the permit that had been issued on March 9, 2011. During the inspection, MDEQ staff discovered that Errington had not obtained all the required buffer-zone waivers. At the time of the inspection, there were two older poultry houses on site, the new fully constructed 2010 poultry house 393 feet from Taylor’s home, and a replacement *1133

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Bluebook (online)
205 So. 3d 1129, 2016 Miss. App. LEXIS 164, Counsel Stack Legal Research, https://law.counselstack.com/opinion/betty-carol-taylor-v-mississippi-environmental-quality-permit-board-missctapp-2016.