IN THE SUPREME COURT OF MISSISSIPPI V. CAUSE NO SA BRIEF OF APPELLEE ROBERT CURTIS ERRINGTON

Transcription

1 E-Filed Document May :18: SA Pages: 37 IN THE SUPREME COURT OF MISSISSIPPI BETTY CAROL TAYLOR APPELLANT V. CAUSE NO SA MISSISSIPPI ENVIRONMENTAL QUALITY PERMIT BOARD AND ROBERT CURTIS ERRINGTON APPELLEES BRIEF OF APPELLEE ROBERT CURTIS ERRINGTON APPEAL FROM THE CHANCERY COURT OF GREENE COUNTY, MISSISSIPPI LANNY JOE BEARD MSB # BEARD & STEWART, ATTORNEYS AT LAW P.O. BOX 1177 LEAKESVILLE, MS ATTORNEY FOR APPELLEE ROBERT CURTIS ERRINGTON

2 IN THE SUPREME COURT OF MISSISSIPPI BETTY CAROL TAYLOR APPELLANT V. CAUSE NO SA MISSISSIPPI ENVIRONMENTAL QUALITY PERMIT BOARD AND ROBERT CURTIS ERRINGTON APPELLEES CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. 1. Robert C. Errington, Appellee 2. Lanny Joe Beard, Attorney for Appellee 3. Roy H. Furrh, General Counsel for Mississippi Dept. of Environmental Quality 4. Betty C. Taylor, Appellant 5. John Griffin Jones, Attorney for Appellant 6. Hewitt G. Jones, Attorney for Appellant 7. Hon. Michael J. Fondren, 16 th District Chancery Judge Respectfully Submitted, s/ Lanny Joe Beard Lanny Joe Beard, MSB II

3 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS ii TABLE OF CONTENTS.iii TABLE OF AUTHORITES...v STATEMENT OF THE ISSUES..1 STATEMENT OF THE CASE I. Nature of the Case..2 II. III. Course of Proceedings... 3 Disposition of Lower Courts STATEMENT OF THE FACTS..4 I. History Overview of Errington Poultry Farm and Family....4 II. MDEQ Permitting and Allowances III. MDEQ s Issuance of Permit Coverage to Errington...8 IV. The Permit Board Grants a Variance SUMMARY OF THE ARGUMENT ARGUMENT I. Standard of Review II. The Permit Board was acting within its the authority when it granted Errington his variance...18 III. Failure to provide 180 days notice is not fatal to a permit IV. It was appropriate for the Permit Board to nod to the financial impact that denying a variance would bring to Mr. Errington 22 V. The Permit Board s decision was not arbitrary or capricious in is evaluation of the facts supporting granting a variance and permit to Mr. Errington 24 III

4 A. Affected property owners were given sufficient notice 26 B. Ms. Taylor moving next door to an operational chicken farm is a highly relevant factor in the Permit Board s decision-making.28 C. The Permit Board was correct in considering Ms. Taylor s motives as a factor 29 CONCLUSION 30 IV

5 TABLE OF AUTHORITIES Cases Baker v. Board of Supervisors of Panola County, 113 So.3d 1266, 1269 (Miss. Ct. App. 2013) 25 Hinds County v. Mississippi Commission on Environmental Quality, 61 So.3d 877 (Miss. 2011) 24 McDerment v. Mississippi Real Estate Commission, 748 So.2d 114 (Miss. 1999).17, 27 Mississippi Department of Environmental Quality v. Weems, 653 So.2d 266 (Miss. 1995) , 25, 27 Mississippi Commission on Environmental Quality v. Desai 868 So.2d 384 (Miss. App. 2004). 17 Mississippi Public Service Commission v. Merchants Truck Line, Inc., 598 So.2d 778 (Miss.1992) Mississippi Commission on Environmental Quality v. Chickasaw County Board of Supervisors, 621 So.2d 1211 (Miss. 1993) 18 Mississippi State Department of Health v. Southwest Mississippi Regional Medical Center, 580 So.2d 1238 (Miss. 1991) 25 Mississippi Methodist Hospital and Rehabilitation Center v. Mississippi Division of Medicaid, 21 So.3d 600 (Miss. 2009). 25 Sierra Club v. Mississippi Environmental Quality Permit Board, 943 So.2d. (Miss. 2006).. 17, 18, 19, 24 Dialysis Solution, LLC v. Mississippi State Department of Health, 31 So.3d 1204 (Miss. 2010)...22, 23, 24 Statutes Miss. Code Ann (5)(b) (1972), as amended.. 18 Miss. Code Ann (3)(a) (1972), as amended.. 19 V

6 Miss. Code Ann (4)(b) (1972), as amended.. 19 Miss. Code Ann (5) (Rev. 2012), as amended.3 Miss. Code Ann (1) (Rev.2009), as amended Rules 11 Miss. Admin. Code Pt. 6, Rule B(1)..8, 20, Miss. Admin. Code Pt. 6, Rule C(2) Miss. Admin. Code Pt. 6, Rule C(2)(f)... 8, Miss. Admin. Code Pt. 6, Rule C(2)(f)(1) , 28 VI

7 STATEMENT OF THE ISSUES 1. Was the Permit Board decision to grant Errington Poultry a variance from the buffer zone requirements of the siting criteria for the Multimedia Dry Litter Poultry Animal Feeding Operation General Permit just under the law? 2. Did the Permit Board sufficiently explain, and support with relevant evidence, its decision to grant a variance from the regulation siting criteria and issue an environmental permit to Robert Curtis Errington to continue to operate his poultry farm? 3. Were all relevant factors presented and properly weighed before the Permit Board and the Chancery Court of Greene County? 1

8 STATEMENT OF THE CASE I. Nature of the Case In 1979, Robert C. Errington established his poultry farm and built three poultry houses on his property. In the following thirty years, there were no complaints or any environmental violations by Mr. Errington. In recent years, the poultry integrator for Mr. Errington, the company that provides the baby chicks for farmers to raise, required that poultry houses meet certain standards. The new houses are larger, cleaner, and significantly less odorous than the open-aired poultry houses of the past. To meet these standards, Mr. Errington had to build one new house and replace another older house. In 2010, Mr. Errington built one new house, submitted plans to replace another, and filed paperwork with the Mississippi Department of Environmental Quality. After the MDEQ granted Mr. Errington a permit, he demolished one of his houses and borrowed money from the bank for construction of a new house. Meanwhile the relationship between Mr. Errington and Ms. Betty Carol Taylor, Mr. Errington s sister and neighbor, significantly deteriorated because of Ms. Taylor s disapproval of certain aspects of Mr. Errington s personal life. In December of 2011, Ms. Taylor notified MDEQ that she disapproved of his poultry houses and would refuse to sign any waivers to allow Mr. Errington to conduct business. MDEQ discovered that they improperly issued a permit to Mr. Errington. In response, the Permit Board initially revoked Mr. Errington s variance request and coverage, but after a formal evidentiary hearing the Permit Board reversed its decision, granting variance and reinstating Errington s permit coverage. The case before this Court stems from Ms. Taylor s attempted appeal of the Permit Board s decision before the Chancery Court of Greene County, Mississippi. The Chancery Court affirmed the decision of the Mississippi Department of Environmental Quality Permit Board to issue Mr. 2

9 Errington a variance from the siting criteria and issue Coverage Under the Multimedia Dry Litter Poultry Animal Feeding Operation General Permit. The principal question before this Court is whether the Mississippi Environmental Quality Permit Board was correct in granting a variance to Errington Poultry and whether that decision was based in the law, supported by substantial facts, and not arbitrarily or capriciously decided. II. Course of Proceedings On March 9, 2011, MDEQ issued coverage under the general permit to Errington Poultry Farm. On December 27, 2011, Ms. Taylor requested that MDEQ revoke Mr. Errington s permit coverage for failure to comply with siting criteria. On May , the MDEQ Permit Board denied Mr. Errington s variance and revoked his permit coverage. On September 11, 2012, the Permit Board held a formal evidentiary hearing on the matter. Ms. Taylor intervened and fully participated in the hearing. MDEQ, Errington, and Taylor offered testimony to the Permit Board for consideration. The Permit Board, after full consideration of all testimony offered, reversed its previous decision by a wide margin and granted a variance and issued permit coverage to Errington Poultry. Ms. Taylor appealed this decision to the Chancery Court of Greene County pursuant to Miss. Code Ann (5) (Rev. 2012). III. Disposition of the Lower Court On June 5, 2014, the Chancery Court of Greene County, after reviewing all relevant evidence and testimony that was presented before the Permit Board, upheld the Permit Board s ruling in favor of MDEQ and Mr. Errington. On October 7, 2014, the Chancery Court also denied a Motion for Reconsideration or Rehearing that was filed by Ms. Taylor. Ms. Taylor subsequently filed for an appeal before this Honorable Court. 3

10 STATEMENT OF FACTS I. History of Errington Poultry Farm and Family In 1979 Robert C. Errington established Errington Poultry Farm #2. From 1979 through 1980, Errington constructed three open-styled poultry houses. When Errington constructed the houses, Mississippi had no regulations or specifications regarding siting criteria requiring buffer zone between adjoining properties or nearby residences or businesses. The locations of the original poultry houses were two homes on the southeast portion of the farm and one house on the northwest portion. The poultry houses had open ceilings and open walls that provided ventilation via outside air. For the next thirty (30) years, Errington operated his poultry farm without any complaints or any environmental violations. In the early 1980s, Betty Carol Taylor, Errington s sister, built a home next to Errington s poultry farm. Ms. Taylor s parents deeded her the land where she built a home in A mortgage for her home was recorded in the Greene County Chancery Clerk s land records in Specifically, a Warrant Deed for Ms. Taylor s house was dated February 25, 1983, and a Real Estate Deed of Trust reflecting the first mortgage was filed in September R In 2008, Ms. Taylor built a larger home on the same site when her first home was destroyed by fire. Id. While her second home was being built, she lived in a temporary camper trailer on the same site. Id. She had the option of rebuilding her home on any part of her and Mr. Errington s mother s property, which totals 435 acres. R The site where Ms. Taylor chose to build both homes was around 300 feet from Mr. Errington s poultry farm which was operational both before she built her home, through her occupancy, and during the rebuilding of her second home. The second home was built even closer to the chicken houses. Id. Ms. Taylor also was not an adjoining land 4

11 owner to Errington Poultry until her mother deeded her a parcel of land that lies between her home and the new chicken houses on December 6, R In recent years, the relationship between Mr. Errington and Ms. Taylor has deteriorated significantly. Ms. Taylor did not approve of the women that Mr. Errington dated, particularly their national origin. Ms. Taylor testified that she disapproved of her brother going to the Philippines to get him another [woman]. R This disapproval led to a verbal-turned-physical altercation in February of R Iva Mae Errington, the mother of the Robert Errington and Betty Taylor, discussed this incident in her affidavit before the permit board, stating: I was present when the both of them had an altercation at my home in February of 2011, wherein Betty had made several racial comments to Robert about his Asian wife. That episode set off a whole chain of events that has affected my whole family. That episode is also the reason that Betty is so adamant about having Robert s permit revoked, and nothing more. Affidavit of Iva Mae Errington, R According to Ms. Taylor this resulted in Mr. Errington s conviction in justice court and being sent to anger management classes. R. 0324; Tr. Pp Iva Mae Errington, Ms. Taylor s and Mr. Errington s mother, testified that Ms. Taylor never complained about Errington Poultry s operations or that the smell, sounds, or other factors were a nuisance. R Ms. Errington also testified that Mr. Taylor often attended family gatherings at the swimming pool that Ms. Errington built within 398 feet from the closest of Mr. Errington s poultry houses. Id. Until summer of 2011 her daughter had no complaints in regards to the proximity of the poultry house or any such odors, flies, or dust related to the house. Id. Furthermore, Ms. Taylor also had a small chicken house on her own property. R On December 6, 2011, Ms. Errington deeded to Ms. Taylor a parcel of land between Ms. Taylor s property and Mr. Errington s poultry farm that adjoined the two properties. R Around this time, Ms. Taylor had a survey crew come to her property. While the crew was 5

12 surveying her property, Ms. Taylor and Mr. Errington got into another verbal argument. R The surveyor allegedly told Mr. Errington he should be more polite considering his chicken houses were located too close to [Ms. Taylor s] property and home. Id. After hearing this, Ms. Taylor called MDEQ to ask, how far a chicken house has to be from a residence. Id. This phone call informed her of the 600-foot buffer zone requirement. Id. Two days after the property was deeded, Ms. Taylor called the Mississippi Department of Environmental Quality ( MDEQ ) to complain that Mr. Errington s farm did not meet the siting criteria. R On December 27, 2011, Ms. Taylor notified MDEQ that she would not provide a buffer zone wavier because she did not of approve Mr. Errington s addition of the new 2010 poultry house or the replacement house. R She also sent a letter to MDEQ requesting revocation of Errington s permit coverage. II. MDEQ Permitting and Allowances When Mr. Errington first began operating his poultry farm, Mississippi had no regulations or siting criteria requiring buffer zones between adjoining properties or nearby residences or businesses. R Throughout his farm s years of operation, different requirements and criteria were determined by the state of Mississippi and various agencies, and in those thirty years there were no complaints or environmental violations. R On February 1, 2009, MDEQ issued the Dry Litter Poultry Multimedia Animal Feeding Operation General Permit and mailed letters along with notices of intent to all poultry farms in MDEQ s database to give them notice to apply for coverage. R The siting criteria portion of the Notice of Intent included a grandfather clause for all poultry houses that were constructed before February 24, Id. At the time Mr. Errington received the letter from MDEQ he only had his original chicken farms and therefore was grandfathered in and did not have to meet the new criteria for coverage. On March 2, 2009, Errington mailed back a completed Notice of Intent stating that Errington Poultry was only seeking 6

13 coverage for an existing facility built prior to February 24, 1994, with no plans to increase the number houses and therefore not required to meet buffer zone requirements. R Recently Marshall Durbin, Mr. Errington s poultry integrator, began requiring its contract poultry farmers to replace their old, open chicken houses with modern, closed-style poultry houses. R A poultry integrator provides baby chickens to independent poultry farmers who then raise the chickens according to set standards. R When the chickens are ready for the market the integrator pays the poultry farmers per weight for the grown chickens. Id. The new standards for poultry houses for Marshall Durbin are modern, closed-walled houses with cooling fans providing climate control. Id. The new houses are larger but significantly quieter, dryer, cleaner, and less odorous than the older, open-styled houses with open ceilings and walls for ventilation. Id. Errington s original chicken houses did not meet the new standards, and he therefore had to add new houses and/or replace his current houses. On October 19, 2010, Mr. Errington notified MDEQ, by submitting an updated Notice of Intent ( NOI ), that he planned to add one new poultry house to his existing facility and planned to demolish and replace an existing poultry house so as to meet Marshall Durbin s standard. R While his original chicken houses were grandfathered into the regulatory siting criteria and did not have to meet buffer zone requirements, the new house and replacement houses would be subject to the criteria. The rule states that the proposed facility must be 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. 11. Miss. Admin. Code Pt. 6, Rule C(2). If the buffer zone requirements are not met, a notarized waiver from the affected party or a variance from the Permit Board would be necessary. 11 Miss. Admin. Code Pt. 6, Rule B(1). 7

14 The new house would be located 393 feet from Ms. Taylor s residence and the replacement house closest to Ms. Taylor s property was 295 feet away. R The old house was 480 feet by 34 feet, and the replacement house would be 500 feet by 50 feet. Tr. P. 70. MDEQ had a policy of allowing a reconstructed house without a waiver or Permit Board variance if the newer house did not further encroach into the buffer zone or if the house was not significantly larger than the previous house. R. 0314; Tr. p. 72. The Permit Board also allows variances if certain codified factors are met, such as whether the affected party moved within the buffer zone of a previously approved facility. 11 Miss. Admin. Code Pt. 6, Rule C(2)(f). III. MDEQ s Issuance of Permit Coverage to Errington On February 1, 2009, MDEQ issued the Dry Litter Poultry Multimedia Animal Feeding Operation General Permit. R MDEQ sent letters and Notices of Intent ( NOI ) to all poultry farmers in MDEQ s database to give them notice to apply for coverage under the new General Permit. Id. The NOI contained questions and instructions to permit applicants including the following section regarding 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? R The NOI form instructed the applicant to attach a completed, notarized buffer zone waiver if the applicant answered no to any questions, including the section regarding siting criteria. When Mr. Errington submitted his NOI on March 2, 2009, he was only seeking coverage for the existing facility and not proposing to increase the number of poultry houses. R For the siting criteria question Mr. Errington answered no because his poultry houses at the time were constructed prior to February 24, 1994 and therefore were considered a grandfathered poultry farm. 8

15 On October 19, 2010, Mr. Errington submitted an updated NOI to MDEQ, giving notice that he planned to add one new poultry house to his existing facility and planned to demolish an existing house and replace it with a new one that would meet to Marshall Durbin s standards. R On the siting criteria section of the NOI he marked that the criteria was not met. Id. Mr. Errington later provided a notarized buffer zone waiver from Ms. Errington who owned property within the buffer one as well as a notarized buffer zone waiver from Van Elmore who was an adjoining landowner within the buffer zone R At the time, Ms. Errington and Mr. Van Elmore were the only adjoining property owners. Ms. Taylor did not become an adjoining property owner until her mother, Ms. Errington, deeded her a parcel of land in December of R On January 19, 2011, MDEQ staff performed a pre-permitting sit inspection of Mr. Errington s facility and noticed that the new poultry house had been built in the summer of 2010 and it was in operation. R Thinking that the siting criteria was met and buffer zone waivers were not needed, the MDEQ staff issued Errington Poultry Coverage under the General Permit on March 9, 2011 for operation of four poultry houses. Id. Tracy Tomkins, Chief of MDEQ s Agricultural Permitting Branch, oversaw the staff that inspected the Errington farm and testified that the inspection report drawing made it appear as if Ms. Taylor s home was outside of the 600- foot buffer and a waiver from the Taylors was not required. R Ms. Tompkins explained that the drawing made it appear as if Ms. Taylor s property line was 450 feet away from the Errington facility and her house was an additional 100 feet, bring the total distance between Ms. Taylor s home and the facility was 550 feet. R. 0014; Tr. p. 88. Ms. Tompkins explained they also factored in the 34 foot width of the poultry house closest to Ms. Taylor bringing the distance to 584 feet and there would be more than 16 feet between the new 2010 house and the replacement house. Id. The actual distance between the 2010 house and Ms. Taylor s house is 393 and the distance 9

16 between the replacement poultry house to Ms. Taylor s is approximately 295 feet. R Ms. Tompkins admitted her staff s error and testified that MDEQ would have referred the matter to the Permit Board for further consideration but for the error. R. 0014; Tr. p. 88. Unbeknownst of the error, the Permit Board granted Errington Poultry coverage on March 9, R Relying on the validity of the coverage, Errington began demolition and reconstruction of the existing house closest to Ms. Taylor s property. R On or about November 2011, Errington started construction on the second new poultry house, still relying on the coverage granted to him by the Permit Board. R This poultry house was built on the same site as one of the original 1980 houses. Id. This error was not discovered until almost a year later when Ms. Taylor was deeded a parcel of land from her mother that adjoined Errington Poultry. R A surveyor indicated in a passing comment that Mr. Errington s chicken houses were too close to Ms. Taylor s home, which led to Ms. Taylor calling MDEQ and inquiring about buffer zone requirements. R She voiced her concerns regarding the proximity of the chicken house to her home. On December 19, 2011, MDEQ compliance and enforcement staff discovered that Errington Poultry had not submitted all the required waivers, and MDEQ staff also found out that Ms. Taylor did not approve of the construction and was refusing to sign a waiver. Id. Ms. Taylor had not complained to MDEQ before December 2011, and MDEQ had never received any other complaints involving Errington Poultry. Id. By the time the inspectors visited Errington Farm in December, Mr. Errington had demolished the old poultry house that was nearest to Ms. Taylor s residence and the replacement house was under construction. R The replacement house was to be 20 feet longer on the west side of the facility and 15 feet wider on each side, putting it 20 feet closer to Ms. Taylor s 10

17 property. Id. William Rider, an environmental engineer and part of the MDEQ compliance and enforcement staff who performed the compliance evaluation, testified that he asked if Mr. Errington could stop construction, although the permit coverage had been issued to Mr. Errington before he began the construction of the replacement house, until a resolution could be met for the buffer zone. R Mr. Errington informed that he could not halt the construction because it was already paid for. Id. Mr. Rider then informed Mr. Errington that completing the construction would be at his own risk and there was a possibility that the poultry farm might not be able to operate at its current location. Id. IV. The Permit Board Grants a Variance On December 27, 2011, Ms. Taylor notified MDEQ that she would not provide a buffer zone waiver because she did not approve of Mr. Errington s addition of the new 2010 poultry house or the replacement house. R Ms. Taylor also sent a letter to MDEQ requesting the Permit Board revoke Errington Poultry Farm s permit coverage and deny a variance from the siting criteria. Id. Errington Poultry had submitted notarized buffer waivers from Mr. Van Elmore and Ms. Errington, but Ms. Taylor reiterated that she would not submit a waiver to the buffer zone requirement. Id. On May 7, 2012, Errington Poultry requested a variance to the sitting criteria; the following day MDEQ staff presented the matter to the Permit Board with the recommendation that the Board grant a variance. Id. The Permit Board, however, denied the variance and revoked Errington s Poultry Coverage. Id. In response, Mr. Errington requested a formal evidentiary hearing and Ms. Taylor moved to intervene. Id. The Permit Board is charged to be the fact-finding arm of the Mississippi Department of Environmental Quality and examines all the relevant evidence prior to their decision. Errington Poultry and the Taylors were given the opportunity to present their case before the board and state 11

18 whether a variance and permit should be granted. Errington Poultry presented evidence that it has been operational for decades without any complaints or violations of MDEQ standards or regulations. Ms. Taylor attempted to claim that she moved into her home before Errington Poultry was operational, but evidence presented to the Permit Board of a Warrant Deed for Ms. Taylor s house dated February 25, 1983,and a Real Estate Deed of Trust filed in September 1983 proved that she chose to live next to a known poultry farm. R It was also shown that Ms. Taylor rebuilt her home in the exact location after living next to Errington Poultry for several decades. Iva Mae Errington, Mr. Errington s and Ms. Taylor s mother, testified that she had never heard her daughter complain about Errington Poultry prior to December R Testimony was also presented to show that Ms. Taylor disapproved of Mr. Errington s personal life and dating habits and the relationship between brother and sister had deteriorated considerably as a result, and this disapproval likely led to her refusing to give Mr. Errington the waiver he needed to be compliant. Id. Ms. Taylor s actions were not the only ones under the microscope of the Permit Board; Mr. Errington was equally examined. Errington had to replace and build new poultry houses to meet the new standards of his poultry integrator to keep his business going. R The plus side of this change was that the new poultry houses required by Marshall Durbin, Errington s poultry integrator, are much cleaner, quitter and less odorous than the older- styled chicken houses. Id. Mr. Van Elmore and Mrs. Errington, who were adjoining landowners, raise no complaints regarding the old or new chicken houses. Until he had to build new houses to met Marshall Durbin standards, Mr. Errington did not have to be concerned with the buffer zone requirements of the siting criteria for the Dry Litter Poultry Multimedia Animal Feeding Operation General Permit because he was grandfathered in as a farm that was operational long before the permit requirements 12

19 were made into law. R When MDEQ mailed poultry farmers letters regarding the new rules he correctly submitted paperwork stating that he had a previously existing poultry farm and did not have to meet the new standards. R Mr. Errington later resubmitted paperwork when he planned to replace one house and build a new one; he also admitted that the buffer zone requirements were not met, giving MDEQ notice. R He later submitted notarized buffer zone waivers from Iva Errington and Van Elmore, who were adjoining property owners. R Mr. Errington had interpreted the language of the buffer zone requirements to mean he need only to get waivers from property owners who were within 150 feet of his farm, which was only Iva Errington and Van Elmore at the time. R Ms. Taylor was not an adjoining property owner until Iva Errington deeded Ms. Taylor an adjoining parcel of land on December 6, R On March 9, 2011, despite errors, MDEQ granted Mr. Errington permit coverage to construct a new poultry house. Id. Relying on this, he made plans to construct a new house. R The construction of the house was well underway, and fully paid for, when trouble was raised by Ms. Taylor. After examining all the evidence and considering testimony offered by both parties, the Permit Board reversed its previous decision, granted Mr. Errington a variance from the siting criteria, and issued the permit coverage allowing Mr. Errington to operate his poultry farm with a total of two poultry houses. R SUMMARY OF THE ARGUMENT The Chancery Court correctly upheld the Permit Board s decision to grant Mr. Errington a variance from the sitting criteria. An administrative agency is given authority by Mississippi law to construct its own rules and regulations in order to achieve its policy goals. An administrative agency also has authority to make judgments and rulings whenever their own rules and regulations 13

20 are disputed. The Mississippi Department of Environmental Quality is charged with, as its name suggests, maintaining and protecting the rivers, streams, groundwater, air, and other environmental staples for future generation of Mississippians. As the years go by, more and more regulations have been added, resulting in more Mississippians falling under the umbrella and being required to abide by such rules and regulations. When conflicts arise with the regulations themselves or relating to compliance of the regulations, the Permit Board serves as the fact finder for the agency. Its authority is also prescribed by Mississippi statute. The Permit Board reaches their decision after weighing all the relevant evidence in light of the agency s own rules and regulations, as well as the underlying policy of the agency. The Permit Board s decision is presumed to be correct unless the decision is arbitrary or capricious, not supported by substantial evidence, beyond the administrative agency s authority, or the complaining party s statutory or constitutional rights were impeded. The complaining party, in this case Ms. Taylor, bears the burden of overcoming this presumption. Ms. Taylor failed to overcome that presumption; and the MDEQ Permit Board s decision was sound, supported by substantial evidence present by all parties involved, and did not violate Ms. Taylor s rights. Mr. Errington has owned and operation a poultry farm on the same property since 1979 and has never received any complaints or been subject to an MDEQ proceeds in its 30-plus year history. Ms. Taylor, Mr. Errington s sister, moved next door to the poultry farm in the early 1980s and rebuilt her within the same distance, if not closer, to the poultry farm in Ms. Taylor has never previously complained about any nuisance related to being a neighbor of an established poultry farm. The relationship between brother and sister deteriorated in recent years due to the racially charged comments Ms. Taylor would make in regards to Mr. Errington s wife. This feud swelled into a full-blown physical altercation. Following this altercation, Ms. Taylor pursued 14

21 vengeance against her brother in the criminal court system, civil court system, and the administrative system that is the nexus of this case. This motive, however, was only one of the factors the Permit Board considered when deciding to grant a variance to the buffer zone requirement. Ms. Taylor would have you to believe that Mr. Errington had reckless disregard for following rules, but evidence will show that Mr. Errington was trying his best to comply by rules and regulations that have changed significantly since he first set out in the poultry farm business some thirty years ago. His only notification of any required timeframe for notice was on a cover page of a letter and notice of intent that did not apply to him at the time he received it. The same letter included information regarding the siting criteria and buffer zone requirement for poultry houses constructed after February 24, Comprised of older chicken houses, Errington Poultry was not required to comply with the regulations at the time Mr. Errington received the letter. A year and a half later, he discovered that he would need to update his facilities to meet Marshall Durbin, his poultry integrator, standards. He made his best attempts to be compliant with MDEQ regulations. He submitted a NOI and contacted adjoining neighbors that he would need a waiver since they were within the buffer zone. It was Mr. Errington s understanding that it was adjoining property owners, not all residences within 600 feet, who needed to submit waivers for buffer zone requirements. At the time, Ms. Taylor was not an adjoining property owner. While ultimately incorrect, Mr. Errington s exclusion of Ms. Taylor was not malicious. To complicate the matters further, MDEQ thought that Mr. Errington had met all of the siting criteria requirements and granted him coverage under the Multimedia Dry Litter Poultry Animal Feeding Operation General Permit. Although he had submitted paperwork stating the buffer zone requirements had not been met and submitted notarized waivers from the adjoining property 15

22 owners, the MDEQ agents who went to inspect the Poultry Farm and review the proposed construction plans thought that the requirements had been met. MDEQ granted him a permit, which, in essence, gave him the thumbs up to begin his planned construction. Relying on the coverage of the permit, Mr. Errington demolished one of his older homes to make room for a new house, fully paid for a construction crew, and began construction on a new, Marshall Durbin compliant poultry house. Well into the construction of the poultry house, Ms. Taylor was deeded property that made her an adjoining property holder, and she insisted that MDEQ revoke Errington Poultry s permit. The Permit Board examined all of this and other relevant evidence, as well as MDEQ s administrative rules prior to ruling in favor of Errington Poultry, and granted Mr. Errington a permit. The threshold for overturning a Permit Board decision is high. The key to overturning a decision is for the complaining party to prove said decision was arbitrary and capricious. The presumption of correctness that attaches to the Permit Board s decision is not to be taken lightly by the appealing Court. The Permit Board, as the fact-finding arm of an agency, is charged with not only considering their own rules and regulations, but doing so in light of the policy objectives the state legislature has instructed them to achieve. Ms. Taylor falls short of overcoming the presumption, and fails to prove the Permit Board s decision was arbitrary and capricious. When examining all the relevant facts, it is clear that Ms. Taylor s rights were not impeded and the decision to grant the variance was not arbitrary or capricious. What is clear is Ms. Taylor s attempts to manipulate the law to fulfill her promise to ruin her brother, the poultry farmer whose livelihood hangs in the balance of whether the variance is granted or not. 16

23 ARGUMENT I. Standard of review Strict, statutory guidelines govern the manner in which an agency decision may be appealed. The courts reviewing the appeal must defer to the administrative agency s construction of its own rules and regulations and the statues under which it operates. Sierra Club v. Mississippi Environmental Quality Permit Board, 943 So.2d. 673, 678 (Miss. 2006). Further, the courts use a four-pronged test to gauge whether a decision should be thrown out: an agency s decision will not be disturbed on appeal absent a finding that (1) was not supported by substantial evidence, (2) was arbitrary and capricious, (3) was beyond the power of the administrative agency to make, or (4) violated some statutory or constitutional right of the complaining party. Id. at 678, citing McDerment v. Mississippi Real Estate Commission, 748 So.2d 114, 118 (Miss. 1999). Moreover, the reviewing Court needs only to be concerned with the reasonableness of the administrative order, not its correctness. Mississippi Department of Environmental Quality v. Weems, 653 So.2d 266, (Miss. 1995). As long as there is substantial, supporting evidence the agency s ruling must stand even if there might be room for disagreement on that issue. Mississippi Commission on Environmental Quality v. Desai 868 So.2d 384 (Miss. App. 2004); Mississippi Public Service Commission v. Merchants Truck Line, Inc., 598 So.2d 778, 782 (Miss.1992). A presumption of validity is attached to the determinations of the administrative agency, due in large part to their specialized knowledge in their given field. Mississippi Commission on Environmental Quality v. Chickasaw County Board of Supervisors, 621 So.2d 1211, 1211 (Miss. 1993). The burden of proving invalidity and rebutting the presumption is on the appellant. Id. The reviewing Court is also prohibited from substituting its own judgment for that of the agency. Id. The limitations of the Court over the administrative agency are best described as quoted in Sierra Club: 17

24 An administrative appeal is not a means to have a court re-weigh evidence and reach a different conclusion. And a permit from an administrative agency is not an authorization to operate a nuisance. A court performs two different functions when determining whether to enjoin a permitted operation as a nuisance and when determining to reverse or affirm an administrative decision. The court must respect that difference. An equity suit is fact driven. Both proceedings are ultimately public policy driven. And public policy is uniquely fitted for the legislature. The legislature has delegated the permitting decision to the Permit Board. Sierra Club, 943 So.2d at 677. When making appeals from the Permit Board, only the record made before the board and evidence heard by the board is to be considered. Miss. Code Ann (5)(b) (Rev. 2012). For instance, the United Methodist Church Ms. Taylor refers to in her Appellant Brief was never brought up before the Permit Board or the Chancery Court and, therefore, is barred from being brought up at this time. II. The Permit Board was acting within its the authority when it granted Errington his variance. The Permit Board is given authority by the Mississippi Legislature to grant variances and issue permit coverages, and the Board exercised its authority when it granted Errington Poultry its variance and permit coverage. The Mississippi State Legislature has deemed the Permit Board as the exclusive administrative body to make decisions on permit issuance, reissuance, denial, modification or revocation of air pollution control and water pollution control permits and permits required under the Solid Wastes Disposal Law of 1974, and all other permits within the jurisdiction of the Permit Board. Miss. Code Ann (3)(a) (1972). This statutory authority allows the Permit Board to set its own permit guidelines and make decisions related to their issuance, revocation, modification, denial, etc. Id. When a formal hearing regarding a permit or variance is requested, the Permit Board has authority to use fact-finding tools similar to that of a courtroom. These tools include, but are not limited to, subpoenaing witnesses, administering oaths, examining 18

25 witnesses under oath and conducting the hearing. Miss. Code Ann (4)(b) (1972). Additionally, any interested party may present witnesses and submit evidence and cross-examine others witnesses. Id. (Emphasis added). This ensures that all relevant information is presented before the Permit Board. As an administrative body, both matters of law and matters of public policy are factors the Permit Board shall consider in its decision-making. Sierra Club v. Mississippi Environmental Quality Permit Board, 943 So.2d. 673, 677 (Miss. 2006). The latter gives it a different jurisdictional scope than that of a standard court of law. This legislative charge affords an agency discretion in making and ruling on their own rules and regulations. Sierra Club v. Miss. Envtl. Quality, at 678. Here, the Permit Board full extended its fact-finding arm and gathered all relevant evidence and testimony. Parties were given the opportunity to present their case, and present any and all witnesses and evidence that they might see fit. After all this information was presented, the Permit Board weighed the evidence and found in favor of granting Mr. Errington a variance and permit coverage along with a full explanation of their ruling and the factors that they considered. Their decision was in full statutory authority given to them by the Mississippi legislature. III. Failure to provide 180 days notice is not fatal to a permit. A great portion of Ms. Taylor s argument centers on the 180 days notice requirement. The requirement referenced is 11 Miss. Admin. Code Pt. 6, Rule B(1) which states: Any person proposing a discharge of wastes to waters of the State or proposing a treatment works from which no discharge of wastes is designed to occur shall file an application in the case of an individual NPDES, UIC, or State permit, at least 180 days prior to the commencement of the activity or, in the case of NOI for coverage under an issued NPDES general permit or coverage under an issued State general permit, in accordance with a schedule established in such permit. 11 Miss. Admin. Code Pt. 6, Rule B(1). (emphasis added). 19

26 The 180 days requirement applies to filings of individual National Pollutant Discharge Elimination System (NPDES) permits, Underground Injection Program (UIC) permits, or State permits as they relate to a proposed discharge of wastes to waters of the State or a treatment works which yields no discharge of wastes. Id. While 180-day requirements are common for most permits, it is not the universal timeframe for all permits. When there is a Notice of Intent for a general State permit, the schedule established under that permit prevails. Id. On February 1, 2009, MDEQ issued the Dry Litter Multimedia Animal Feeding Operation General Permit. R Thereafter, MDEQ sent letters and Notices of Intent ( NOI ) to all the poultry farmers in MDEQ s database to give them notice to apply for coverage under the new General Permit. R On March 2, 2009, Mr. Errington submitted a NOI that accurately reflected Errington Poultry at that time, namely that he was seeking coverage for the existing facility that had been in operation prior to 1994, and not proposing an increase to the number or size of chicken houses on the property. Id. Roughly a year and a half later, on or about October 19, 2010, Mr. Errington submitted and updated NOI as well as a Comprehensive Nutrient Management Plan ( CNMP ) to add one new poultry house to the existing facility and to demolish and replace an existing poultry house. R The only instructions he had in regards to the timeframe of when to submit a NOI was on the cover page of the letter and NOI that MDEQ mailed to all chicken farms in spring of Id. Regardless, he still submitted an updated NOI to give MDEQ notice that he was making changes to his original farm and as such needed to adjust his permit coverage accordingly. Id. He even went as far on his updated NOI to acknowledge that the siting criteria were not met. Id. He followed up with waivers from one of his adjoining neighbors. 20

27 Three months later, on or about January 19, 2011, MDEQ staff visited Errington Poultry Farms to perform a pre-permitting site inspection, where they mistakenly believed buffer zones were met and issued the permit at the nucleus of this case. Believing he had the necessary permit, Mr. Errington continued with his operations and plans to build a new poultry house. He also believed he had the approval of necessary, adjoining property owners, Ms. Errington and Van Elmore, when he continued his operations. It wasn t until December of 2011 that there was any indication that the permit was mistakenly granted and Errington Poultry was operating without a valid permit. Ms. Taylor would argue that the 180-day rule should be strictly followed and anything short would void the permit request. She argues that the permit is void on its face unless it is filed 180 days prior to construction. This would be an unreasonably strict application. The intent of submitting paperwork prior to construction is to give MDEQ and affected parties sufficient notice and begin the permitting process. Here, MDEQ and affected parties had notice of Mr. Errington s plans to update his poultry facilities. MDEQ knew that Mr. Errington was seeking permit coverage and yet waited three months before performing a pre-permitting site inspection. Mr. Errington also fully disclosed that siting criteria was not met, giving MDEQ notice. The intent of the requirement to provide notice prior to construction, in this case, was intact even if the exact days are not met. Furthermore, it can also be argued that 180 days was satisfied because it was well beyond 180 days from when Mr. Errington applied for a permit in October of 2010 and when he began construction in November of If the intent is to provide notice prior to construction, then notice was met beyond that of 180-days. IV. It was appropriate for the Permit Board to nod to the financial impact that denying a variance would bring to Mr. Errington. 21

28 Ms. Taylor attempts to discredit the Permit Board s decision by saying it focused too much on the financial impact that denying a variance to the buffer zone requirement. This financial consideration, however, is only briefly mentioned within paragraph 21 of the Permit Board s Findings of Fact and Conclusions of Law when the Permit Board states: Because Errington Poultry will be unable to replace the older houses, Errington Poultry, if not allowed a variance from the siting criteria would cease to exist. This would be a rather harsh result for a facility that had operated without complaint since 1979 and which only received its first complaint 30 years later in R This statement followed a lengthy consideration of all the evidence and testimony presented. While mentioned by the Permit Board, there is no evidence that it was as heavily relied on, as Ms. Taylor suggests. The fact that not granting a variance would end Mr. Errington s poultry farming career was, in fact, most heavily weighed by Ms. Taylor as it has been made abundantly clear that ending her brother s business and ruining his livelihood is the chief motive behind her bringing this case to Court. Taking that into consideration, it is well within the Permit Board s discretion to include this fact as one of the many factors they weighed. Furthermore, the cases Ms. Taylor sites to argue financial impact are substantially different than the case at hand, and as such they do not carry much weight toward the judgment of this case. In Dialysis Solutions, LLC v. Miss. Dept. of Health, 31 So.3d (Miss. 2010), RCG- Montgomery, LLC constructed and began operating a kidney disease treatment facility in Winona, Mississippi, without a valid Certificate of Need. A Certificate of Need is aimed at keeping medical costs low by limiting medical facilities. A medical facility must file a Certificate of Need with the Department of Health, which is a lengthy progress of notice, application, public comment period, and a hearing where need must be proven with evidence. 1 The Department of Health is charged

29 with Mississippi s health planning and regulatory activities, the purpose of which is to prevent unnecessary duplication of health resources, provide cost containment, improve the health of Mississippi residents, and increase the accessibility, acceptability, continuity, and quality of health services. Dialysis Solution, LLC v. Mississippi State Dept. of Health, 31 So.3d 1204 (Miss. 2010). A Certificate of Need is an absolute first step in the process of establishing a medical facility, and a final arrangement or commitment for financing is strictly prohibited unless the MSDH has issued a Certificate of Need. Miss. Code Ann (1) (Rev.2009). In the case of Dialysis Solutions, the Certificate of Need in question expired nearly a year and half later before the RCG sought an extension, although Mississippi Statute is clear that a Certificate of Need is only valid for a maximum of twelve months. 31 So.3d 1204 (Miss. 2010). The Mississippi Department of Health s granting an extremely past-due extension was a blatant disregard for their governing statues and the policies entrusted to them by the State legislature. To compare this to Mr. Errington s case is a stretch at best. The only notice that Mr. Errington had of how much notice he should give prior to construction of a new facility and who he needed buffer zone waivers from was the cover page of a letter that he received over a year prior to construction when the requirements were not applicable to him at them time. In contrast, the requirement of a Certificate of Notice is well established throughout the medical community. Further, construction of medical facilities requires multiple layers of legal groundwork before the first groundbreaking, and it would be incredibly uncommon for a medical facility to begin construction without consulting an attorney to help sort through the requirements. In contrast, a chicken farmer does not, typically, have the same need for in-depth legal expertise to build a new facility on his established farm, which has operated for decades without any complaints. Another contrast between the Dialysis Solutions case and the case before this Court is the history of the 23

30 companies. In Dialysis Solutions, the problems arouse prior to the facility ever being built or company being operational; the legal battle began when the company was in its infancy. Dialysis Solution, LLC v. Mississippi State Dept. of Health, 31 So.3d 1204, 1215 (Miss. 2010). On the contrary, Errington Poultry had been in operational, without complaint, for over thirty years before the legal squabble at hand. Furthermore, Mr. Errington relied on the coverage that the Permit Board granted him in March of 2011 and began demolition of one of his existing houses and rebuilding of another to meet Marshall Durbin standards. He had no knowledge of any potential troubles until December, These differences in facts weaken the applicability of Ms. Taylor s Dialysis Solution argument. V. The Permit Board s decision was not arbitrary or capricious in is evaluation of the facts supporting granting a variance and permit to Mr. Errington. When the Permit Board held its formal evidentiary hearing, testimony and witnesses were presented from MDEQ, Mr. Errington, and Ms. Taylor. Ms. Taylor was able to exhaust her case before the Permit Board. After a full evaluation of all relevant testimony, the Board granted Mr. Errington his permit. This decision, according to Mississippi law, may only be reversed if it is found to be arbitrary and capricious. Sierra Club v. Mississippi Environmental Quality Permit Board, 943 So.2d. 673, 678 (Miss. 2006). The Supreme Court of Mississippi has defined arbitrary as fixed or done capriciously or at pleasure. Baker v. Board of Supervisors of Panola County, 113 So.3d 1266, 1269 (Miss. Ct. App. 2013); Miss. State Dep t of Health v. Southwest Miss. Regional Medical Center, 580 So.2d 1238, 1240 (Miss. 1991). Similarly the Court has defined capricious as an act that is done without reason, in a whimsical manner, implying either a lack of understanding of or a disregard for the surrounding facts and settled controlling principles. Id. The courts have also defined these terms within the specific constructs of an appeal of an agency 24