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Faria Dairy fights order to move some cattle or pay
By Ainslee S. Wittig/Arizona Range News
The owners of Faria Dairy were ordered to remove heifers from illegally constructed feeding pens on the edge of their property, or pay an initial fine of $750 and $50 per day, which began July 24, the date of a decision on a summary judgment by Stephen Desens, Cochise County Superior Court judge.
Cochise County Chief Civil Deputy Attorney Britt Hanson said Faria Dairy has not moved the cattle as of Thursday, bringing the total fine to $2,150.
Owner Sebastiao Faria filed a notice of appeal on Friday and a motion to stay the injunction, which asks that the Court's order requiring them to move the cattle not be enforced while they appeal, said Hanson.
The battle over the feeding station started before May 2007, when the Cochise County Planning and Zoning Commission unanimously denied a special-use permit for a 3,000-head, heifer feeding pen station on 40 acres of the Faria Dairy along Kansas Settlement Road near Willcox.
The station had already been constructed earlier in 2007 without the required special-use permit.
However, Faria's attorney, David Elston, said in 2007 that county supervisor Richard Searle told Faria that he didn't need a special-use permit to build the feeding pens.
"He spoke with a county commissioner and asked if it was OK for him to build the pens. He was told that since he had the dairy farm it was all right. He didn't know he wasn't in compliance," the attorney explained.
Commissioner Dave Walters then told the other commissioners that he had spoken with Searle and that there had been a miscommunication and that Searle thought Faria was going to make more grazing space.
Several neighbors had concerns or complaints, which they expressed during the May 2007 meeting.
One neighbor said a drainage ditch leads from Faria's property to his property and he is concerned about his well being contaminated.
"Why would anyone move 3,000 cattle into a pen without first constructing the drainage catch basin?" Commission Chairwoman Karen Corey asked Elston.
Elston said the drainage ditch came from the construction of the pens.
Faria's neighbors complained about the feeding pens, the flies and the odor; however, all but two complimented him on how well he kept the dairy. But the pens right alongside the road instead of the back portion of his property, where it would be out of sight, was something they could not understand.
Al Curry, who lives west of the dairy, said his house fills with the odor when the wind shifts.
Twila Shelton told the commissioners, "It broke my heart what he did right next to my property."
Michael York said he is embarrassed to invite guests over because of the flies. He said they did nothing to mitigate the fly problem.
Following the court order by Judge Desens, dairy neighbor June York said, "The neighbors are not insignificant, no matter how few in number we are. When most of us chose to live here in Kansas Settlement, the only thing on the H-1 property was some old run-down pens that hadn't been used in some time and were rarely used until the dairy came in. The Farias own 3,300 acres, of which only that one 320-acre parcel is zoned other than RU4. There is room on that 320 acre H-1 parcel for the feedlot. The Farias chose to put the feedlot literally in our collective backyards instead of their own. To say that the increase in flies and odors is marginal is ludicrous. They did not mention the dust and hay fire pollution or the run-off that invades the Shelton's property in close proximity to one of their wells. They may be used to it, but none of us are."
When the Farias appealed to the Board of Supervisors in July 2007, the board also unanimously denied the permit.
Nelson Faria, Sebastiao's son, said in 2007, "We've had state inspectors tell us we are the cleanest dairy in the state. The majority of the people here support us. We got the "permit" - we got permission from the county commissioner (Supervisor Richard Searle). We can't just pick up the pens and move them - they are not mobile homes."
The dairy did not move the pens or the cattle.
Hanson said the county's only option was to file a suit against the Farias to obtain an injunction to put a stop to the unlawful activities.
The suit does not affect the dairy operation, which is located on land properly zoned as Heavy Industry.
Hanson said, "We won the suit. The judge did rule that the pen feeding station did not constitute a commercial feedlot (as the county had previously determined it was) under the county's zoning definitions. However, the county is still entitled to regulate the use of property and required a permit."
Hanson said Desens did not order the fines to begin at the initial date of complaint (July 10, 2007); nor did he grant attorneys fees.
Hanson also said Desens did not grant a motion for summary judgment for the Farias' $1 million suit against Cochise County claiming Searle gave permission to build the feeding pens.
"He can't and didn't give permission for what (the Farias) ultimately built," he said.
Hanson said a ruling on the request to stay the injunction placed on Faria to move the cattle should be made in a month or two. A ruling on the Farias' claim against the county may take a lot longer.
Sabastiao Faria did not want to comment on Thursday.
Cochise County Chief Civil Deputy Attorney Britt Hanson said Faria Dairy has not moved the cattle as of Thursday, bringing the total fine to $2,150.
Owner Sebastiao Faria filed a notice of appeal on Friday and a motion to stay the injunction, which asks that the Court's order requiring them to move the cattle not be enforced while they appeal, said Hanson.
The battle over the feeding station started before May 2007, when the Cochise County Planning and Zoning Commission unanimously denied a special-use permit for a 3,000-head, heifer feeding pen station on 40 acres of the Faria Dairy along Kansas Settlement Road near Willcox.
The station had already been constructed earlier in 2007 without the required special-use permit.
However, Faria's attorney, David Elston, said in 2007 that county supervisor Richard Searle told Faria that he didn't need a special-use permit to build the feeding pens.
"He spoke with a county commissioner and asked if it was OK for him to build the pens. He was told that since he had the dairy farm it was all right. He didn't know he wasn't in compliance," the attorney explained.
Commissioner Dave Walters then told the other commissioners that he had spoken with Searle and that there had been a miscommunication and that Searle thought Faria was going to make more grazing space.
Several neighbors had concerns or complaints, which they expressed during the May 2007 meeting.
One neighbor said a drainage ditch leads from Faria's property to his property and he is concerned about his well being contaminated.
"Why would anyone move 3,000 cattle into a pen without first constructing the drainage catch basin?" Commission Chairwoman Karen Corey asked Elston.
Elston said the drainage ditch came from the construction of the pens.
Faria's neighbors complained about the feeding pens, the flies and the odor; however, all but two complimented him on how well he kept the dairy. But the pens right alongside the road instead of the back portion of his property, where it would be out of sight, was something they could not understand.
Al Curry, who lives west of the dairy, said his house fills with the odor when the wind shifts.
Twila Shelton told the commissioners, "It broke my heart what he did right next to my property."
Michael York said he is embarrassed to invite guests over because of the flies. He said they did nothing to mitigate the fly problem.
Following the court order by Judge Desens, dairy neighbor June York said, "The neighbors are not insignificant, no matter how few in number we are. When most of us chose to live here in Kansas Settlement, the only thing on the H-1 property was some old run-down pens that hadn't been used in some time and were rarely used until the dairy came in. The Farias own 3,300 acres, of which only that one 320-acre parcel is zoned other than RU4. There is room on that 320 acre H-1 parcel for the feedlot. The Farias chose to put the feedlot literally in our collective backyards instead of their own. To say that the increase in flies and odors is marginal is ludicrous. They did not mention the dust and hay fire pollution or the run-off that invades the Shelton's property in close proximity to one of their wells. They may be used to it, but none of us are."
When the Farias appealed to the Board of Supervisors in July 2007, the board also unanimously denied the permit.
Nelson Faria, Sebastiao's son, said in 2007, "We've had state inspectors tell us we are the cleanest dairy in the state. The majority of the people here support us. We got the "permit" - we got permission from the county commissioner (Supervisor Richard Searle). We can't just pick up the pens and move them - they are not mobile homes."
The dairy did not move the pens or the cattle.
Hanson said the county's only option was to file a suit against the Farias to obtain an injunction to put a stop to the unlawful activities.
The suit does not affect the dairy operation, which is located on land properly zoned as Heavy Industry.
Hanson said, "We won the suit. The judge did rule that the pen feeding station did not constitute a commercial feedlot (as the county had previously determined it was) under the county's zoning definitions. However, the county is still entitled to regulate the use of property and required a permit."
Hanson said Desens did not order the fines to begin at the initial date of complaint (July 10, 2007); nor did he grant attorneys fees.
Hanson also said Desens did not grant a motion for summary judgment for the Farias' $1 million suit against Cochise County claiming Searle gave permission to build the feeding pens.
"He can't and didn't give permission for what (the Farias) ultimately built," he said.
Hanson said a ruling on the request to stay the injunction placed on Faria to move the cattle should be made in a month or two. A ruling on the Farias' claim against the county may take a lot longer.
Sabastiao Faria did not want to comment on Thursday.
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The following are comments from the readers. In no way do they represent the view of willcoxrangenews.com.
acres wow wrote on Aug 28, 2008 7:08 AM:
" 3,000 cows on 40 acres seems down right mean! Why not share with you livestock? Maybe, you don't like the smell and mess that they leave behind? If I was your neighbor, I would be taking you to court too! "Book him DANO!!" I think that county should be taxing people like these alot higher then they already do!!! "
Enness Arnold wrote on Aug 27, 2008 10:38 PM: