Due Process & Equal Protection in Millard County — a CAFO Case Study

For most people, it seems, the concepts and principles of “Equal Protection” and “Due Process” seem somewhat hazy.  What do they even mean?

Most of the time stories of unlawful unequal treatment have to do with discrimination based on race, gender, religion, and usually happen somewhere else, far away — because that sort of thing never happens around here, right?

Under equal protection laws, it is unlawful for anyone to discriminate or treat others differently based on protected classifications, including race, religion, gender, age, etc.  But when it comes to government — at any level — it is  unlawful for government actors to discriminate and treat people differently regardless of the classification. The Fourteenth Amendment to the U.S. Constitution mandates equal treatment.   Under the Utah State Constitution, all laws and governmental processes in the state of Utah are supposed to be applied uniformly and equally to everyone.  In a nutshell it really boils down to fundamental fairness, and the Golden Rule — do unto others as you would have them do unto you.

So with that in mind, let’s consider, compare and contrast the recent handling of land-use decisions by.Millard County Officials.  In 2016/17  the David & Julie Johnson Family applied to build an industrial pig farm (CAFO) four miles south of Deseret.  In 2017/18 Jason & Jennifer Christensen (J&J Hogs) applied to do the same thing approximately two miles north of Flowell. This is an interesting story.

I have written extensively about part of this before (See The Current Status of Property Rights in Millard County), but in summary, Smithfield Foods, a division of Murphy Brown, LLC., has recently been seeking to expand its industrial hog finishing operations into Millard County from adjoining Beaver County, where it and its predecessors have been operating as Circle 4 Farms, for about 20 years. As part of that expansion, in late 2016 Smithfield sought a zone change to secure a conditional use permit to construct 16 new grow-out barns on the Millard County side of property Smithfield owns that straddles the Millard/Beaver County line.  This is a very remote area, 15-20 miles north of Milford, approximately 50 miles south of Deseret, and about 30 miles Southwest of Kanosh.

As part of its proposed expansion, Smithfield has also been looking for contract growers in Millard County, so the David & Julie Johnson family viewed this as a good opportunity to create additional, productive, incoming-producing opportunities for their family.

According to the available information, the Johnson Family proposed to construct four (4) grow-out barns capable of producing almost 5,000 finished hogs/year per barn. Just to be clear, this would be what is often referred to as a “Factory Farm.”  They were planning to do this on approximately 220 acres four (4) miles south of Deseret. This would allow them to put otherwise essentially useless/worthless brush ground that has good access to essential infrastructure, to productive, beneficial use. So in late 2016 Johnsons likewise applied for a zone change from AG20 to AG Industrial, in order to secure a conditional use permit to construct the barns.

The Millard County Planning Commission held a public hearing regarding the zone change applications.  As is often the case, apparently not many people were paying attention, and few showed up at the public hearing. The planning commission considered the substantive merits of the applications and determined that they met the requirements for a zone change under the Millard County Land-use Ordinance, and voted to recommend the proposed zone changes to the Millard County Commission for approval.  Construction of the barns would still require conditional use permits.

Following the public hearing before the planning commission, however, apparently more people became aware of the proposed projects, and things really started heating up in terms of public opposition.  Consequently, in addition to another, required public hearing before the Millard County Commission on Thursday, January 26, 2017, the Millard County Commission went the extra mile and went out of its way to advertise and hold multiple additional informational meetings to provide the public in that area an opportunity to learn more about the project, prior to the public hearing.

As is also often the case, apparently word about the proposed projects spread, because the informational meetings were well-attended. In addition to just asking questions and trying to learn more about the project(s), however, some members of the public began to voice active opposition, and sought to lead an opposition movement.  Because there had been essentially no public opposition at the planning commission hearing, the growing opposition seemed to catch the Johnson family somewhat by surprise.  As the meetings continued, attendance numbers grew, and the opposition grew more vocal.

Based on the growing public clamor and vocal opposition that the Millard County Commission had effectively stirred up through its public information campaign, following the second informational meeting, the Johnson Family threw in the towel and withdrew their zone change application even prior to the second public hearing before the Millard County Commission. But the approval process went forward for Smithfield’s property on the Millard/Beaver County line.

When it came time to vote on the Smithfield zone change, Commissioner Jackson noted that when he was campaigning for election in 2016, the biggest message he heard repeatedly from Millard County residents was that they didn’t want to continue to lose their property rights, and the right to use their property. He said that he didn’t realize what would happen to test those issues and principles so soon after taking office.  Commissioner Draper voted against the zone change on the Millard/Beaver County line based on his expressed concerns about risks to groundwater quality in that area, where the closest residential neighbor, with a culinary groundwater source — the Kauffman Ranch — was seven miles away.

Now, let’s consider the County’s handling a year later of a similar approval process for Jason & Jennifer Christensen (J&J Hogs) to do essentially exactly the same thing two miles north of Flowell.  Just as with Johnsons/Smithfield, in late 2017 the Millard County Planning Commission went through the motions of conducting a public hearing regarding the J&J Hogs CAFO proposal.  Once again, not surprisingly, no one showed up.  Although there are multiple residential neighbors with culinary wells within 1-2 miles of the proposed J&J hog farm, and Fillmore City has one or more municipal wells in the same aquifer, in terms of due process requirements, it is unclear whether the county undertook any effort to notify them about the public hearing(s).

Although the U.S. Supreme Court has held that the due process provisions of the U.S. Constitution require that “before the State conducts any proceeding that will affect the legally protected interests of any party, the State must provide notice to that party by a means certain to ensure actual notice as long as the party’s identity and location are ‘reasonably ascertainable’.” Mennonite Board of Missions v. Adams, 462 U.S. 791, 800(1983), Millard County routinely ignores that requirement, and insists instead that constructive, public notice postings are sufficient.  SEE Due Process — the Golden Rule of Principled Government.

More recently, in Sessions v. Dimaya, the U.S. Supreme Court held that:

Fuzzy, vague laws violate the due process guarantees of the U.S. Constitution.  Vague laws beget two evils that are related: They do not give citizens reasonably clear notice of what behavior is proscribed or prescribed. And they give — actually, require of — other officials excessive discretion in improvising a fuzzy law’s meaning.  According to Justice Gorsuch, Vague laws “invite the exercise of arbitrary power” by “leaving the people in the dark about what the law demands and allowing governmental officials to simply ‘make it up’.” The lack of “precise and sufficient certainty” (criteria stipulated by the English jurist William Blackstone, whose writings influenced the Constitution’s framers) invites “more unpredictability and arbitrariness” than is constitutional. Furthermore, the crux of America’s constitutional architecture, the separation of powers, is implicated. All legislative power is vested in Congress. The judicial power, Gorsuch wrote, “does not license judges to craft new laws” but only to discern and follow an existing law’s prescribed course. So, allowing vague laws would allow the legislative branch “to hand off the job of lawmaking.” Hence such laws not only illegitimately transfer power to other administrative officials, leaving interpretation and enforcement to a matter of hunch.  See Gorsuch Delivers the Hammer.

But in any event, without any opposition, the planning commission made a positive recommendation to the county commission.  Instead of conducting any kind of public information campaign before conducting a public hearing, however, the county commission quickly conducted a public hearing, apparently without giving any actual notice to any affected parties, and once again, no one showed up to say anything.  So the county commission expeditiously voted to approve the zone change.  At that point, with no public awareness whatsoever, the approval process was flying deftly under the radar.

After the zone change was completed, J&J applied for a conditional use permit, and the Planning Commission conducted another public hearing. Although, once again, it is questionable whether there was any required actual notice to interested parties as required under applicable law, this time a couple neighbors — Matt Kesler and Demar Iverson, did show up to ask questions and express concerns.  The planning commission tabled further consideration of the application, pending receipt of additional information.

Then things really got interesting.  By then it was mid-January, 2018, and the Millard County Commission was looking to appoint two new members to the planning commission.  Interestingly, based on Commissioner Draper’s recommendation, the commissioners moved to appoint both Kesler and Iverson (who only live about 3 miles apart, in the Pahvant area, near the proposed J&J pig farm) to the planning commission.

When the MIllard County Planning Commission next met to again consider the J&J conditional use permit application, Kesler and Iverson were on the board.  But Commissioner Draper suggested that based on their previous opposition to the proposal, they should abstain from the vote.  When Greg Greathouse and Molly Stevens likewise abstained, there was no quorum to vote on that issue.  Because the planning commission was still waiting on additional information from J&J, including an odor mitigation plan, it again attempted to table the application with no recommendation for or against, before ultimately voting (without a quorum?) to forward the application to the county commission without any recommendation. And that raises an interesting question: if four planning commissioners all announced that they were going to abstain from discussion and voting on the J&J issue, which created a lack of quorum, how could those same commissioners then turn around and make motions, second and vote on the same issue? And what were the deputy county attorney and county commissioner who were in attendance at the meeting thinking?

Among other things, Utah Code Section 17-27a-502 expressly provides that the county legislative body (the county commission) cannot undertake any land-use regulation without a recommendation from the planning commission.

According to the minutes from the February 6th Millard County Commission Meeting, however, Commissioner Withers was quite irritated that the J&J application wasn’t on the County Commission agenda, and demanded to know why.  Commissioner Draper and County Land-use Administrator Adam Richins explained that it was because the planning commission had taken no action, and would possibly be reconsidering the issue again at its next meeting.

Rather than waiting for the next planning commission meeting and a recommendation from the planning commission, Commissioner Withers insisted on moving forward and voting on the application on February 20th, in direct violation of the express provisions and requirements of applicable law, including Utah Code Section 17-27a-502, despite the fact that there was no recommendation from the planning commission, based on incomplete information, and the item hadn’t been included on the posted County Commission meeting agenda, let alone any actual notice to affected parties.

And, once again, interested parties, including neighbors, had not been given any notice, actual or otherwise, of what was going on. Colleen Halsey, and Roxanne Layton, some of the closest neighbors, said they had never received any notices from Millard County.  And Demar Iverson, another neighbor, said that the day before the meeting he called Commissioner Draper to find out what was going on.  Draper expressly told him it wasn’t on the agenda and assured him that it would not be discussed.

After now having a chance to review the meeting minutes, and according to sources present at the meeting, it is clear that the J&J pig farm conditional use permit application did end up being discussed — at some length — after which Commissioner Withers moved to approve the application without first allowing any further public input.  Although Commissioner Draper later claimed to have been blindsided and ambushed, he seconded the motion anyway, without stating any objections or reservations, and all three commissioners voted to approve it.

And just like that, in contrast to the Johnson Family application process, notwithstanding Equal Protection, Due Process, and Open & Public Meetings laws to the contrary, the J&J approval process was over.

Bringing the discussion full circle, these are the fundamental questions: Was this equal protection and uniform operation and application of the law and applicable approval processes?  Were all the affected parties with protected property interests at issue in these two situations given fair and equal treatment?  Were they given actual notice and a reasonable opportunity to be heard?

If not, why not? And perhaps more importantly, does it matter?