Date:
07/10/2014
Subject:
Evan Burger / Story County Board of Supervisors / Chapter 21 - open meetings and record laws
Opinion:
RE: Formal complaint 14FC:0044, filed by Evan Burger on behalf of named individuals and Iowa Citizens for Community Improvement alleging open meetings and records laws violations by the Story County Board of Supervisors relating to the approval of an application to build a concentrated animal feeding operation. Complaint dismissed.
June 23, 2014
Mr. Evan Burger
c/o Iowa Citizens for Community Improvement
2001 Forest Avenue BY EMAIL ONLY
Des Moines, IA 50311
Dear Mr. Burger:
On June 11, 2014, you filed a formal complaint (14FC:0044) with the Iowa Public Information Board (IPIB) on behalf of named individuals and Iowa Citizens for Community Improvement alleging that the Story County Board of Supervisors violated Iowa Code Chapter 21 by failing to provide adequate notice of a meeting held May 27, 2014, as required by section 21.4, and also violated Iowa Code Chapter 22 by failing to provide certain documents as required by section 22.2.
The genesis of this complain is an application for a permit from the Iowa Department of Natural Resources (DNR) to construct a concentrated animal feeding operation (CAFO) which was under review by the county for report to the DNR.
The permitting process begins with an application to DNR at least 60 days prior to a proposed construction date. The DNR refers applications for review to a county in which the CAFO is proposed to be located. That county, if it has adopted a construction evaluation resolution, can use what is known as a master matrix, a scoring mechanism. Producers in counties that have adopted the matrix must meet higher standards than other permitted facilities. Before they can be approved for construction, they must earn points on the master matrix for choosing sites and using practices that reduce adverse impacts on the environment and the community. Producers must have 50% (440 points minimum) of the total score and at least 25% of the available points in each of the three subcategories of air, water and community impacts to pass the master matrix. Story County had in place such a process. Points are “earned” by applicants agreeing to certain criteria and are “awarded” by the county’s determinations on these criteria. It is a complicated process that appears to be designed to give local government an opportunity to “score” applications and address particular local concerns. A failing score does not necessarily doom a project as the DNR is the final issuing authority and is not bound to a scoring result or recommendation from the involved county.
The law also allows, but does not require, the county to hold a public hearing on the application and the master matrix scoring. In this instance Story County chose to hold a public hearing and published notice of its time and location.
As is common for these kinds of applications as well as others involving complex projects, informal preparatory inputs were obtained by staff from the applicant and interested citizens. In this case the applicant appears to have been cooperative and willing to make changes to the application to address government and citizen concerns about the project.
The county has by statute thirty days in which to make its report to the DNR. The hearing was held the day before expiration of this deadline, the day after Memorial Day, May 27th. The final changes were negotiated between the county staff and the applicant on Memorial Day. The final documentation was made available on the county website at 8:30 AM on the following day. Notice was given by email to Mr. Burger that changes had been made which were available on the website at approximately 8:45 AM. The public hearing started at 10:00 AM that day.
The basis of the section 21.4 complaint is that the public had no ability to view the amended master matrix prior to the hearing rendering the meeting notice non-compliant with the requirement that notice of a meeting shall:
1. Except as provided in subsection 3, a governmental body shall give notice of the time, date, and place of each meeting including a
reconvened meeting of the governmental body, and the tentative agenda of the meeting, in a manner reasonably calculated to apprise the
public of that information. * * *(Emphasis supplied by Complainant.)
2. a. Notice conforming with all of the requirements of subsection 1 of this section shall be given at least twenty-four hours prior to the
commencement of any meeting of a governmental body unless for good cause such notice is impossible or impractical, in which case as much
notice as is reasonably possible shall be given. * * *
In quoted paragraph 1 above, it is a “tentative” agenda that is required to be published. There is no known authority for what is in essence the complainant’s contention: the notice of a meeting must also give notice as to any potential outcomes of issues listed or amendments to be considered. Surely the subject must be listed in order to inform the public, but common experience is that propositions listed on an agenda are subject to revision during the deliberation of the item during the course of the meeting. Amendments are an expected part of the process. In this case the public was given notice of and allowed to participate in a public hearing on the issue. On its face, the notice given appears more than adequate.
If it were alleged, which it is not, that the process was somehow tainted by a bad faith effort to hide the final outcome from the public, the IPIB board should pursue action upon any such allegation supported by stated facts. To ensure no such taint exists here, extra steps were taken: the four hour audio recording of the meeting (the hearing itself was about three and one half hours) was reviewed, extra documentation from the complainant was reviewed, the respondents denial of violation was considered, and the DNR’s analysis of the amendments was obtained.
Upon review of the audio recording of the entire three and a half hour hearing I gained great respect for the participants in this process. The Story County Supervisors presided over one of the most open and democratic hearings I have heard. All parties were respectful of each other, an exemplary level of decorum was maintained, and all were given opportunity to state their points. The complainant and applicant proffered several witnesses who made their points in a civil and persuasive manner. The supervisors reacted favorably to several comments made by citizens and even expressed a willingness to consider support for legislative changes necessary to allow some of their concerns to be addressed.
Of most significance to the matter before the board, the county announced at the outset that the application had been amended, that the amendments were posted on the Internet that morning and that staff would be rescoring the master matrix at the hearing. Staff did in fact go over the scoring of the master matrix at the start of the hearing and gave explanations for changes. Staff indicated several changes were made as the result of Complaint’s suggestions. No public comments were taken until the staff recommendations on scoring process thoroughly discussed publicly with the board. When the floor was opened to public comment, speakers had the advantage of knowing exactly what was being considered by the supervisors. By my count, thirty-one citizens were heard. Both sides of the issues were well presented.
While there was some complaining during the hearing by three citizens about not having had an opportunity to review the final application, there was no claim of bad faith or indication of how they were prejudiced. There is no indication that anyone had asked for a copy of the amended application at, during or before the hearing. My notes indicate the first mention of the issue occurred at approximate 11:45 AM.
Supplemental information submitted by the Complainant argues that prejudice occurred, but the issues raised were essentially the same ones raised in the hearing.
I also sought assistance from the DNR legal staff in order to assess whether any actionable notice violation was inherent in the amendments made regardless of whether they stemmed from any bad faith attempt at concealment. I received the following response by email from DNR Legal Services Bureau Attorney Randy Clark:
Keith,
You requested input regarding the nature of the nine amendments to the Master Matrix that are the subject of the complaint filed by ICCI. Please see this link for information about the Master Matrix:
http://www.iowadnr.gov/Environment/LandStewardship/AnimalFeedingOperations/Confinements/ConstructionRequirements/Permitted/MasterMatrix.aspx
I obtained information on the amendments to the Master Matrix from the Director of the Story County Environmental Health Department and from Evan Burger with ICCI.
All of the amendments were a result of errors in the applicant’s scoring of ten items in the Master Matrix as alleged by ICCI (see paragraphs 3 and 4 in Complaint, Timeline of Events). In other words, ICCI urged Story County to not award points to the applicant for those items.
Story County staff worked with the applicant in addressing five alleged errors and announced those changes in the Master Matrix during its presentation to the Board of Supervisors on May 27, 2014. For example, ICCI alleged that the applicant could not claim Master Matrix points for obtaining a Family Farm Tax Exemption because the applicant simply submitted a copy of its application for the exemption in its Master Matrix scoring and didn’t show it qualified. Obviously the County makes that determination anyway and determined the Applicant did indeed qualify. This determination was announced during the County staff’s presentation on May 27, 2014 but ICCI asserts it was a change (from applying for a tax exemption to actually proving it had the exemption) ICCI didn’t know about in advance so as to make a knowledgeable comment.
Three of the four alleged errors resulted in changes to the narrative in three Master Matrix items. Applicant’s revised Master Matrix, including these three changes, was posted to the Story County website at 8:30 am on May 27, 2014. (see attached email with link to website posting) The wording for these changes directly addressed the errors alleged by ICCI. For example, for Master Matrix item #12, ICCI asserted that “The applicant took 30 points for having a covered manure storage structure…They reference weekly inspections to look for damage to the roof, but fail to document who will be conducting those investigations, whether the person conducting the investigations will be trained on what to look for to assess the integrity of the structure, and whether a log will be kept documenting the results of the monthly inspections.” In the amended narrative for Master Matrix item #12, the applicant provided this language: “However, a maintenance routine shall include a weekly walk around by the site owner/manager of the outside of the building structure. The person conducting the inspections shall be trained by appropriate building professionals such as the original building contractor, Quality Ag…A log of all activities shall be maintained.”
The final alleged error by the applicant involved Master Matrix item #40, 5 points for having an emergency action. ICCI alleged that the plan was not specific to the site, contradicted DNR requirements and failed to require reporting of manure spills to DNR’s spill hotline. In response the applicant filed a replacement emergency action plan which included DNR’s spill hotline number in two places and two new pages entitled “Manure Spill Response Kit” and “Emergency Manure Spill Response Plan of Action,” the latter being a flowchart. This amended emergency action plan was posted on Story County’s website at 8:30 a.m.
Keith, I hope this information is useful in understanding the significance of the amendments filed by the applicant in this matter. Please contact me if you have further questions.
In KCOB/KLVN, INC. v. JASPER COUNTY BOARD OF SUPERVISORS, 473 N.W. 171, 173 (Iowa 1991) the court stated:
The tentative agenda for May 23, 1989, listed “Industries Council-Mr. Jack Lipovac.” The subject matter discussed was the firing of a custodian.
Plaintiffs claim that the notice contained in the agenda was not sufficiently detailed to meet the legislative standard in Iowa Code section 21.4
which requires that notice be given “in a manner reasonably calculated to apprise the public....”
Thus, the issue to be resolved is not whether the notice given by the governmental body could have been improved, but whether the notice
sufficiently apprised the public and gave full opportunity for public knowledge and participation. In determining whether the public was
sufficiently apprised, we may consider the public's knowledge of an issue and actual participation in events in light of the history and
background of that issue.
The Iowa Supreme Court relied recently on KCOB/KLVN when it stated in CITY OF POSTVILLE v. UPPER EXPLORERLAND REGIONAL PLANNING COMMISSION, 834 N.W. 2d 1, 9 (Iowa 2013): “Substantial compliance with the statute is all that is required.”
It is my conclusion that no actionable violation of Iowa Code Chapter 21 occurred as alleged in the Complaint. The notice given, the non-required public hearing and the participation in that hearing all indicate the public was sufficiently apprised and afforded a full opportunity for participation in a very democratic process.
It is also my finding that there is no statement in the complaint that any request for a record was denied.
Pursuant to Iowa Administrative Code Rule 497-2.1(3), the IPIB may delegate acceptance or dismissal of a complaint to the Executive Director. The decision of the Executive Director is subject to review by the Board.
Iowa Code Section 23.8 provides two options for action by the IPIB upon receipt of a complaint, the second of which states:
“Determine that, on its face, the complaint is outside its jurisdiction, is legally insufficient, is frivolous, is without merit, involves harmless error, or relates to a specific incident that has previously been finally disposed of on its merits by the board or a court. In such a case the board shall decline to accept the complaint. If the board refuses to accept a complaint, the board shall provide the complainant with a written order explaining its reasons for the action.”
For the reasons set forth above, it is therefore ordered that this complaint is dismissed on the grounds that the complaint is without merit.
A copy of this Order is being forwarded to the Iowa Public Information Board for review at its next scheduled meeting on July 10, 2014.
Keith Luchtel
Executive Director
Cc: IPIB
Mr. Evan Burger, for Iowa Citizens for Community Improvement
Ms. Jessica Reynolds, First Assistant Story County Attorney for Story County Board of Supervisors
Mr. Randy Clark, J.D., DNR Legal Services Bureau