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By John Lucas
The charges were filed regarding odor coming from Mike Bud Wardlaw s B&G Poultry Inc. Wardlaw is a contract grower for Tyson Chickens Inc., which also is named in the suit.
The charges were to be heard in May, but appeals delayed that trial, and no new date has been set.
Chandler's ruling, on an appeal of an April decision by Crittenden District Judge Rene Williams, opens a door for modification of Kentucky laws governing large-scale animal feeding operations.
A spokesman for Tyson Foods, parent company of Tyson Chickens, said the company has concerns about some aspects of Chandler s decision but has yet to decide whether it will ask for a review by the Kentucky Court of Appeals.
Chandler s opinion upheld the District Court ruling that Marion residents could file criminal nuisance charges against owners of 16 broiler houses even though they are outside Marion s city limits.
The complaints allege odor from the 400,000 chickens in Wardlaw s houses trespassed onto nearby properties that are in the city limits.
Attorneys for B&G Poultry Inc. and Tyson had argued the city ordinance did not apply to chickens outside the city limits and that a person or animal had to physically be on property for trespass to occur.
Should the courts recognize a legal cause of action for the criminal offense of trespass when the alleged trespass is not physical but sensory in nature? Chandler asked.
Chandler suggested an appropriate analogy might be found in the changes of tort law for damages caused by blasting from mining.
For many, many years, one could recover for such damage only if there was an actual physical trespass upon the injured property, i.e., the falling of rocks or other blasting-related debris, he said.
But with the expansion of strip mining in the mid-1900s, Chandler noted, It became clear that property owners were suffering greatly from blasting operations not only on adjoining property but some distance farther away and certainly without actual physical trespass of debris.
Odor complaints against the chicken houses were of a similar nature, he said.
Ed Nicholson, a Tyson spokesman, said the company would need additional time to study Chandler s ruling before deciding whether to appeal to the Kentucky Court of Appeals.
An appeal can be filed within 30 days.
Nicholson said the company was pleased Chandler agreed with Judge Williams earlier ruling that the penalty provision of the city s ordinance was excessive.
It allowed for a penalty of up to $250 per animal for each day of violation. With 400,000 broilers at the site, Wardlaw s company and Tyson could have faced maximum fines of up to $100 million for each day of violation.
Williams ruled that part of the ordinance was special legislation specifically targeting the chicken growers and said state law limited the maximum applicable fine to $500 a day.
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