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Thursday, Aug. 30, 2012 08:33 am

Neighbors must pay damages for delaying hog shed

An appellate court in Springfield says opponents of a pig farm outside Rochester must pay for delaying the project. However, neither side is overly happy with the outcome.

“It’s a mixed bag,” says Springfield attorney Thomas Immel. His client, Rochester pig farmer Robert Young, won a $24,000 award of damages earlier this month – far less than the $297,000 he requested.

“Of course, we’re very pleased the appellate overruled the lower court,” Immel said. “But I’m  not clear why they dismissed the rest of Mr. Young’s costs.”

The appellate court’s written opinion gives little insight.

“The claims for lost income and other costs were uncertain, speculative or not sufficiently supported to show defendant’s entitlement to them,” the three-person appellate panel said in a short, unanimous decision.

The case started in 2007, when a group of Young’s neighbors sued to prevent him from building a hog finishing facility on his property. Calling themselves the Rochester-Buckhart Action Group (RBAG), the neighbors said the hog farm would negatively affect their property values and the environment because of the smell and potential for the spread of manure-borne diseases.

RBAG also argued that Young should have followed a more involved regulatory process because they claimed his project was a new operation instead of an expansion of an existing one.

Young previously had hogs at his farm, where he also raises cattle, but he had not raised any swine there since 1998. He demolished his hog shed in 2004 to prepare for an expanded operation that never materialized.. When he obtained his permit for the new hog shed in 2007 from the Illinois Environmental Protection Agency, he and IEPA considered the project an expansion of his existing operation. RBAG argued Young should have been subject to the public hearing process, strict setback requirements and other regulations

Sangamon County circuit judge Leslie Graves granted RBAG a preliminary injunction, temporarily halting Young’s project and costing Young several thousand dollars. Young appealed and got the injunction lifted, then built his hog facility and asked the court for reimbursement of his losses.

Young argued that the delay caused by the injunction caused him to incur extra costs, including setup and teardown fees from the concrete contractor, higher materials costs, impaired credit and interest on outstanding loans that otherwise would have been paid off. Graves denied all of Young’s requested damages except $500 for a regulatory permit from IEPA, which RBAG agreed to pay. The appellate court overruled Graves, awarding Young almost $6,000 for the setup and teardown fees and nearly $18,400 in attorney fees.

Patrick Shaw, a Springfield attorney representing RBAG, said the outcome could have been worse, but it also could have been better.

“I was kind of disappointed they added some more costs,” Shaw said. “But the main ones they (Young) argued were larger than that.”

Shaw says the issue of damages “sort of took over the case,” preventing the original issues from ever being heard. Shaw hasn’t spoken with RBAG yet to decide whether to appeal the latest ruling, but he cautions that the case is not over.

“I’m presuming when we get to a final judgment on the money, whatever it is, the case can proceed to the merits,” Shaw said.

When Graves issued the preliminary injunction halting Young's project, the court required RBAG members to post a $60,000 bond to pay any potential damages. Part of that bond could go toward Young's reimbursement if neither side contests the appellate court’s latest ruling.

Immel says Young won’t contest the appellate court’s decision or ask the three-justice appellate panel to reconsider.

Sandra Young, Robert Young’s wife, declined to talk about the case by phone, saying only, “It’s done; it’s all political.”

Darrel Berry, a member of RBAG, says he and other RBAG members are frustrated that the original issue has yet to be taken up by the courts. He adds that living near the farm has been what he expected: The smell, while intermittent, can sometimes be unbearable.

“There are days that are fine and days where the wind blows right toward you,” Berry says. “Those are the days you don’t want to be outside working. You hope if you’re having company over that it’s not one of those days.”

Berry says he and his wife have considered moving, but their sense of “what’s right” has kept them fighting.

“We enjoy living out there and the people out there,” Berry says, explaining their decision to stay. “It’s certainly not a personal thing against Bob. There are some things that outweigh the bad, but on the bad days, it’s depressing. We just felt like it was imposing on our rights.”

Contact Patrick Yeagle at pyeagle@illinoistimes.com.


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