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Court upholds ruling on Faria Dairy case
By Ainslee S. Wittig/Arizona Range News
The Arizona Court of Appeals affirmed the Cochise County Superior Court's ruling which prohibited use of a non-permitted parcel of land being used as a heifer feeding station at the Faria Dairy in Kansas Settlement.
Sebastiao and Maria Faria, who own the dairy, claimed the trial court erred in ruling that their use of the property was not exempt from Cochise County zoning regulations as a "general agricultural purpose," which authorized the county to regulate their use of the property by requiring a special use permit.
Division Two Appeals Court Presiding Judge Joseph J. Howard ruled in his opinion June 16 that the Farias' heifer feeding pen constituted a "like business" use, such as that of a commercial feedlot or cannery, and not a "general agriculture purpose," and therefore was subject to regulation by Cochise County.
"In this case, they were running a very large feedlot with noxious (byproducts) that were offensive to neighbors. We need to be able to regulate that," said Adam Ambrose, civil deputy county attorney for Cochise County.
"The ruling means that Faria Dairy does not have the right to continue the operation (of the heifer feeding pens)," Ambrose said. "The Farias would have to ask for a stay and receive an order from the court to keep operating while appealing further" if they wanted to do that.
Ambrose said the Cochise County Attorney's Office will be responsible for enforcement, which would be carried out through the county Sheriff's Office by court order.
Richard Searle, District 3 Cochise County Supervisor, said, "The situation is regrettable for misunderstandings all around. I don't think anybody is happy with this situation and it's not fair for the county, the residents or Mr. Faria. It's too bad it has drug on this long."
The history
The Farias built a 10,000 cow dairy facility in 2004 on 3,300 acres on Kansas Settlement Road near Willcox. The dairy farm was located on the parcel of land east of the road, zoned Heavy Industry (HI).
In 2006, the Farias alleged that County Supervisor Richard Searle told Sebastiao Faria that he could add some feeding pens to his dairy operation without asking for county approval and the Farias constructed the feeding pens on about 40 acres of their land west of Kansas Settlement Road, zoned RU-4 (Rural District, minimum site area four acres). The pens feed about 3,000 heifers.
After neighbors complained about the odor and pests, the County Planning Department sent the Farias a notice of a zoning violation for operating a commercial feed lot without a permit. The Farias applied for a special use permit, which was denied.
The Farias then appealed to the County Board of Supervisors, contending that they did not need a special use permit because the use of the feeding pens was a "general agricultural purpose", an exemption in the county's zoning regulations. The Board of Supervisors denied the appeal, but the Farias continued to operate the feeding facility.
The county then sued the Farias for violation of a zoning regulation, and requested an injunction. The Farias counterclaimed. Cochise County Superior Court Judge Stephen Desens denied the Farias' motion, finding that the heifer feeding pen was an "other like business," and he granted the county's motion. The Farias were then prohibited from using the property as a pen feeding operation for its heifers.
However, the Farias appealed to the state Court of Appeals and continued operating the feeding pens during that process.
The Farias have not yet returned a call placed Wednesday from the Range News.
(Mike Jackson of Elfrida contributed to the history portion of this article.)
Sebastiao and Maria Faria, who own the dairy, claimed the trial court erred in ruling that their use of the property was not exempt from Cochise County zoning regulations as a "general agricultural purpose," which authorized the county to regulate their use of the property by requiring a special use permit.
Division Two Appeals Court Presiding Judge Joseph J. Howard ruled in his opinion June 16 that the Farias' heifer feeding pen constituted a "like business" use, such as that of a commercial feedlot or cannery, and not a "general agriculture purpose," and therefore was subject to regulation by Cochise County.
"In this case, they were running a very large feedlot with noxious (byproducts) that were offensive to neighbors. We need to be able to regulate that," said Adam Ambrose, civil deputy county attorney for Cochise County.
"The ruling means that Faria Dairy does not have the right to continue the operation (of the heifer feeding pens)," Ambrose said. "The Farias would have to ask for a stay and receive an order from the court to keep operating while appealing further" if they wanted to do that.
Ambrose said the Cochise County Attorney's Office will be responsible for enforcement, which would be carried out through the county Sheriff's Office by court order.
Richard Searle, District 3 Cochise County Supervisor, said, "The situation is regrettable for misunderstandings all around. I don't think anybody is happy with this situation and it's not fair for the county, the residents or Mr. Faria. It's too bad it has drug on this long."
The history
The Farias built a 10,000 cow dairy facility in 2004 on 3,300 acres on Kansas Settlement Road near Willcox. The dairy farm was located on the parcel of land east of the road, zoned Heavy Industry (HI).
In 2006, the Farias alleged that County Supervisor Richard Searle told Sebastiao Faria that he could add some feeding pens to his dairy operation without asking for county approval and the Farias constructed the feeding pens on about 40 acres of their land west of Kansas Settlement Road, zoned RU-4 (Rural District, minimum site area four acres). The pens feed about 3,000 heifers.
After neighbors complained about the odor and pests, the County Planning Department sent the Farias a notice of a zoning violation for operating a commercial feed lot without a permit. The Farias applied for a special use permit, which was denied.
The Farias then appealed to the County Board of Supervisors, contending that they did not need a special use permit because the use of the feeding pens was a "general agricultural purpose", an exemption in the county's zoning regulations. The Board of Supervisors denied the appeal, but the Farias continued to operate the feeding facility.
The county then sued the Farias for violation of a zoning regulation, and requested an injunction. The Farias counterclaimed. Cochise County Superior Court Judge Stephen Desens denied the Farias' motion, finding that the heifer feeding pen was an "other like business," and he granted the county's motion. The Farias were then prohibited from using the property as a pen feeding operation for its heifers.
However, the Farias appealed to the state Court of Appeals and continued operating the feeding pens during that process.
The Farias have not yet returned a call placed Wednesday from the Range News.
(Mike Jackson of Elfrida contributed to the history portion of this article.)
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Reader Comments
The following are comments from the readers. In no way do they represent the view of willcoxrangenews.com.
Sharon wrote on Jul 2, 2009 12:08 PM:
" Having run a dairy since 2004, I'm convinced the Farias had to be well informed as to the zoning laws. They allegedly tried to shift the blame to the Cochise County Supervisor, Richard Searl, by saying he allegedly said they could add feeding pens without county approval. Even if that were true, I'm sure it wasn't meant to turn it into a feedlot with over 40 acres of heifer feeding pens. The Farias knew better and should take responsibility for their own actions. The feeding pens need to be removed. "
Rysz wrote on Jul 5, 2009 1:39 PM:
" I think we are mincing words here. The Farias are clearly operating an agricultural operation in an area devoted to agricultural uses. As such, the state has legislated that local governments should not interfere. By allowing local government to chip away at what are legitimate agricultural operations everyone will suffer. We do not need more government oversight. Yes, cattle do not smell the same as roses. They are not supposed to. And, yes real estate is not selling right now but that has nothing to do with the Farias. "
Mike Jackson wrote on Jul 2, 2009 8:15 AM: