Published June 5th, 2017 by Budd-Falen Law Offices, L.L.C.
JUNE 5, 2017
A VICTORY FOR A FAMILY FARMER
On June 1, 2017, in less than two hours after the parties’ closing arguments following a two-week jury trial, jurors rendered their decision and Edwin Hostetler and Western Slope Layers, LLC won the right to continue their family farming operation on their agricultural property outside Hotchkiss, Colorado. Even though this indoor, organic, chicken egg-laying operation had every county and state permit imaginable and had passed all environmental and safety inspections, Hostetlers were sued by a neighbor claiming that the dust particulates, mold and other “contaminates” were “physically trespassing” on her hobby farm and had caused her almost $600,000 in lost property value, medical expenses, annoyance and discomfort, and past, present and future bodily injury. A local jury, however, found that none of her claims were true and preserved the property rights of the Hostetlers and Western Slope Layers, LLC. Brandon L. Jensen of the Budd-Falen Law Offices, LLC represented the Hostetlers in this case.
While this case is an important vindication for this Colorado agriculturalist and private property owner, it is still troubling. The case has lingered on against the Hostetlers since 2011. The first suit came when Delta County, Colorado approved the permit for construction of the Hostetler’s egg laying barn. That Delta County permit included requirements for construction of the facility, air and water testing, and other environmental and health protections required by the County’s regulations. The neighbor sued Delta County for granting the permit; the case ended in 2015 when the Colorado Court of Appeals upheld the County Commissioners’ determination to grant the permit and the Colorado Supreme Court refused to take the case. Budd-Falen Law Offices, LLC represented the Hostetlers in their intervention on the side of the County arguing that the County had properly granted the permit and that terminating the permit would cause irreversible injury to the Hostetler family business.
Unsatisfied with that result, the neighbor persisted by filing a case against the Hostetlers and Western Slope Layers personally for physical trespass by dust, mold and other contaminates. The problem was that the neighbor had absolutely no medical tests to prove that the existence of the enclosed egg-laying facility was causing her any physical problems; all of her medical tests were normal and she had never been hospitalized for asthma. With regard to the her claims for trespass, expert witnesses for the Hostetlers proved that all “emissions” claimed to be from the Hostetlers’ enclosed facility were well within normal levels for all agricultural settings and there was no proof that these emissions came from the Hostetler’s barn. Additionally, these emissions even were present on her property during the two year period that the barn was closed and there were no chickens present.
While this case does show that a family farmer can fight and win the right to continue the agriculture use of his property, it does make one wonder. According to a 2016 Harris Poll, about 3.3% of the American population are vegetarians and 1/2 of those also exclude eating dairy or eggs. Thus, an overwhelming majority of the U.S. population depends on meat, eggs and dairy for survival. The problem is that there is a growing number of the population who do not want to live near an agriculture operation– including a self-contained, fully permitted, family-owned, cage-free, organic egg-laying barn (with baskets of flowers hanging from the porch of the facility). Americans enjoy the safest, healthiest, and cheapest food as a percent of consumer expenditures over any other country in the world. However, a large percentage of Americans do not understand the basic process of who grows their food or how it is grown. There is also a percentage of people who simply do not like agricultural production and the families who make it happen. This mind set is the antithesis to the roots of this Country. Whether you are a soccer mom in Denver, a ski instructor in Vail, an accountant in Grand Junction, or a family living on 10 acres with a couple of horses in Golden, we all need to support agriculture. The Hostetlers were able to persevere and win their case, but in a place where the “Right to Farm” means the right to grow food, these kinds of cases should not even happen.
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Land Use Plan Workshop: Substantive Participation by Local Governments in Federal Agency Decision Making/Template for Local Land Use Plan - Hosted by the Niobrara Soil and Water Conservation District
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