|THE COUNTY HEALTH ORDINANCE AND CAFOs
The Livingston County passed a health ordinance in 1997 which was later amended in 2009. The Health ordinance states that "the adoption and enforcement of said standards is hereby found to be necessary in order to enhance the public health and prevent the entrance of infectious, contagious, communicable or dangerous diseases into Livingston County."
The County's Health Ordinance regulates Concentrated Animal Feeding Operations (or "CAFOs"). The Ordinance establishes set back distances from buildings and populated areas, requires a public hearing, and other standards that minimize the health impacts of CAFOs.
This is my sixth year as Presiding Commissioner. When I first came into office, I tried to learn as much as I could about the pros and cons of Health Ordinances. After studying this issue, I concluded that our Health Ordinance was appropriate for Livingston County. Consequently, in the six years that I have been Presiding Commissioner, our Commission has made no attempt to alter or change our Health Ordinance and had no intention to do so.
Last year, the Missouri State Legislature passed Senate Bill 391 which states that counties like ours cannot have Health Ordinances with standards that are inconsistent with or stricter than certain state statutes and regulations, which are primarily those of the Department of Natural Resources (DNR). This law went into effect in August of last year. It should be noted that before Senate bill 391 was passed, I had our State Legislator in to discuss this with several former commissioners, who had written our original Health Ordinance, and we indicated to him that we believed our Health Ordinance was appropriate for Livingston County.
Our Commission is in the process of doing its due diligence. One part involves hiring an engineer to oversee compliance with our standards under our current Health Ordinance. Another part involves approval from the Department of Natural Resources.
Although Senate Bill 391's intention as passed by the legislature is clear ( which is to eliminate counties like ours from the ability to have stricter standards than state law), the issue becomes complicated by the fact that there is a lawsuit filed by another county in Missouri with a Health Ordinance like ours. They are trying to overturn Senate Bill 391 as either being unconstitutional and or saying that counties like ours should be grandfathered in. We do not know when this law suit will be decided at the trial court level. Regardless of how the trial court rules, the case will most likely be appealed by the losing side all the way up to the State Supreme Court, which could take up to several years for a final decision.
We are working with our attorney who originally wrote our Health Ordinance as to what action the County Commission should take regarding permit applications that are filed while these lawsuits are pending. Unless a court rules otherwise, the state law is binding on the county, and we are ultimately required to follow the law.
Currently, we are processing any CAFO application that is filed while simultaneously keeping our eye on this lawsuit regarding Senate Bill 391. Based on the result of the lawsuit, our Commission plans to request legal opinions on what the county's next step should be.
I hope this gives you an update on where this issue stands. If you have questions, feel free to contact us.