- Last Updated on 07:53 AM 03/24/10
- BY The Gazette-Virginian
Following a hearing in Halifax County Circuit Court yesterday, Judge James Luke ordered to trial the lawsuit between Link Farms and the Halifax County Board of Supervisors.
A trial date has not yet been set.
During the hearing, the judge heard arguments from both sides on partial summary judgment requests made by the plaintiff.
Counsel for the county, James O’Keeffe, argued that count 10 of the plaintiff’s claim should be thrown out because it was a federal claim, that the Link Farms’ due process rights were violated, and state remedies exist.
O’Keeffe argued the plaintiff’s claim did not meet the controlling test, and the county ordinance had legitimate aims of protecting the environment, general welfare and economic development in the county.
Corey Simpson, counsel for the plaintiff, countered that the setbacks in the county’s ordinances were so restrictive there was no place in the county for an operation like Link Farms.
She argued that in effect the county banned hog farm operations, and thus there was not a conceivable relationship between the amendments and what they were intended to accomplish.
Simpson added the Links have a by-right use to operate the farm and thus have a property interest.
O’Keeffe refuted that the Links have a state law claim and not a federal claim and said the setbacks in Halifax are in line with what other counties in Virginia are doing.
Judge Luke threw out the count in question as sought by the plaintiff.
The next point of contention was over whether the county properly obtained the Air Pollution Control Board’s permission before passing the ordinances in question.
O’Keeffe argued no court has interpreted that localities must get the board permission before passing new ordinances that only tangentially deal with air pollution.
However, he conceded the court may find that the county should have gotten permission from the board on the “odor abatement” section of the ordinance, but the other sections he argued never mention air pollution or odor and address other concerns like traffic and property values.
Simpson argued the county was required to get approval from the state board, and that by not doing so the ordinances were improperly enacted.
The judge agreed with O’Keeffe and ruled the ordinances incidentally address air pollution, and thus he denied the plaintiff’s motion.
Lastly, the lawyers addressed the issue of whether the supervisors had the authority to enact a moratorium on hog farms, while the planning commission worked on the new ordinances governing their operation.
Simpson argued that Virginia as a Dillon Rule state does not give local authorities the power to enact moratoriums, and thus the supervisors took action for which they had no statutory authority.
O’Keeffe countered that once the Links submitted their application for review, the county had 90 days to respond, and the county did respond in 57 days.
So, O’Keeffe claimed the Links were not affected by the moratorium, and thus whether it was valid or not is a moot point.
Judge Luke asked O’Keeffe if the rules changed during the 90-day period when the Links submitted the application, and O’Keeffe said they did.
Then another lawyer for the county, Gregory Haley, addressing the judge’s question, argued the county has the authority to change the rules after the application has been submitted.
He cited two cases, one of a landfill in Appomattox County where an application was certified for a landfill, and during the process the county banned new landfills, and the Virginia Supreme Court held the action was proper.
A plaintiff must have a building permit to have a vested right, Haley claimed, not just an application.
Simpson countered the only reason the county did not certify the Link Farms’ application under the old ordinances, where the expansion would have been allowed, was because county staff’s hands were tied by the unlawful moratorium.
Judge Luke said this was an issue for trial.