CAFO lawyer responds to commissioners

By Lesley Jenkins
STAR STAFF
ljenkins@starhq.com

   Controversy is in the air in Johnson County as some residents and a law firm representing a proposed concentrated animal feeding operation argue over the legality of two resolutions recently passed by the Johnson County Commission.
   The commission passed two resolutions hoping to prevent a North Carolina business man from establishing a CAFO in the Neva Community on Dug Hill Road. The first resolution adopted TCA 5-1-118 which grants powers to any county without zoning regulations. The next resolution coincides with the previous and allows the county "to prohibit or abate nuisances."
   The resolution states, "activities conducted by CAFOs, as currently defined by the Tennessee Department of Agriculture and/or the Tennessee Department of Environment and Conservation constitute an act, practice, conduct, business, occupation, calling, trade, or use of property are liable to be detrimental to the health, morals, comfort, safety, convenience or welfare of the inhabitants of Johnson County, Tenn.
   "It is hereby resolved that CAFOs, as currently defined by the TDA and/or TDEC are hereby prohibited within the unincorporated portions of Johnson County, Tenn."
   However, the commission does not have the right to govern anything that is already regulated by state controls, such as beer stores and adult-oriented businesses, according to Johnson County Attorney Bill Cockett.
   K. David Waddell, lawyer for the law firm, Baker, Donelson, Bearman, Caldwell and Berkowitz, who represents Jerry Anderson, owner of Carolina Holsteins, Inc., sent a letter to County Mayor Dick Grayson which reads, "The discussion surrounding adopting these resolutions indicates they were passed in an attempt to prohibit the operation of a dairy farm in Johnson County by my client Maymead Farms and its partner Mr. Jerry Anderson, owner of Carolina Holsteins, Inc. I have reviewed these resolutions on behalf of my client, and conclude that Johnson County is without authority to prohibit my client from operating a dairy farm in Johnson County."
   The law firm argues that, because TDEC is responsible for issuing permits to a CAFO, the resolutions passed against the CAFO do not apply in this case.
   Counties cannot prohibit the introduction of a business regulated by the state, according to Waddell. Only the department responsible for regulating the business can deny a permit. Anderson has applied for a permit from TDEC, but has not yet received a response.
   The letter further states an opinion from the Attorney General of Tennessee in No. 99-071, March 22, 1999. "Therefore, it is likely that a Tennessee court would interpret TCA 13-7-114 to prohibit a county from using its zoning authority to regulate CAFOs, the moreso because the subsequently enacted TCA 69-3-108(7) gives regulatory authority over CAFOs only to the Department of Environment and Conservation thereby evincing the legislature's continuing intent to withhold such from a county."
   Waddell also calls the resolutions "invalid" and asks Johnson County to confirm that the resolutions will not be enforced against his client "in order to avoid the unnecessary expense of litigation."
   Commissioners are waiting until the next scheduled meeting on Feb. 19 at 7 p.m. to develop a course of action.