News from June 5, 2003 issue


Jury finds chicken growers guilty of nuisance
BY CHRIS EVANS, PRESS EDITOR
A guilty verdict in the local chicken case after three years of legal wrangling may only be the beginning.

A three-woman, three-man jury took more than five hours Tuesday to decide the fate of Tyson Foods and B&G Poultry, the two chicken-growing companies charged with violating a City of Marion nuisance ordinance.

The case, on trial here Monday and Tuesday, stems from 10 complaints filed on three separate days in the late summer of 2000. Residents who live near the chicken facility testified that the stench coming from the barns was terrible. One said it made him "almost vomit." Most of the complaints were from people who live in Greenwood Heights, a large subdivision on the northern edge of the city.

The barns are actually just outside of the city limits, which led to early questions of whether the growers could be held accountable for violating a city ordinance.

The jury said yes and fined the chicken companies $500 each for two violations. The jury found the defendants not guilty of violating the city nuisance ordinance on a third day, Aug. 4, 2000. The guilty verdicts were based on complaints from Aug. 31 and Sept. 2, 2000.

Two jurors spoke briefly to The Press following the verdict. They each said that testimony was slightly different for the first day in question ­ the one where the jury returned a not guilty verdict.

"One of the police officers said that the smell had dissipated by the time he had got there to investigate it," one juror said.

While residents of Greenwood Heights and County Attorney Alan Stout say they were pleased with the verdict, many questions remain unanswered.

Tyson Foods attorney John Tarter of Henderson said he was not at liberty to discuss the verdict. Likewise, B&G attorney Marc Wells of Princeton said his client Bud Wardlaw of Marion was not available for the trial and not immediately aware of the verdict.
"It would be premature to answer that right now. My client doesn't even know the outcome yet," Wells said when asked about the possibility of an appeal.

While attorneys for the defendants wouldn't speak about their intentions, it appears clear that an appeal is imminent. After all, the chicken-growers' lawyers have tried countless motions and legal maneuvers throughout the three years that this case has spent in Crittenden District Court. In fact, they even brought action against Judge Rene Williams, who they said mishandled the original trial which ended in a mistrial in February.

Privately, some courtroom observers say Tuesday's verdict will not be the end of the legal infighting between local residents, the city and the chicken companies.

In fact, the verdict could embolden local city government to fight harder against the chickens. Two of the individuals who brought charges against Tyson and B&G are now members of the city council. Mayor Mick Alexander testified for the prosecution, telling jurors about the terrible odors emitted from the barns.

City Attorney Bart Frazer said the guilty verdict certainly strengthens the city's nuisance ordinance and upholds what the city council has said all along.

"It's shown that the city council is willing to protect its residents and to go to great length to validate its ordinances," Frazer said.

The city's lawyer said there is reason to believe the council might want to appeal Judge Williams' April 2001 order which struck down the city's potential fine of $250 per animal, per day, which would have cost the chicken growers millions of dollars. Judge Williams ruled that the fine suggested by the ordinance was excessive.

Frazer said the fine gives juries latitude to assess a proper punishment.
Some have suggested that a $1,000 fine

See CHICKEN/page 8Ais "chicken feed" to Tyson, one of the country's largest producers of poultry products. However, Frazer says $500 a day can become cumbersome for anyone.
"It's like a speeding ticket, do you fight it every time or do you just pay the fine and go on?" asked Frazer.

Others question what reverberations will be felt throughout the agriculture industry. Tom Moore, Crittenden County's Extension agent for agriculture, says there will be some consequences that farmers and others in the industry will have to consider.

"You wonder if this is a precedent to some degree," he said Wednesday morning. "It will put the agriculture industry on notice, especially CFOs (confined feeding operations)."

This week's trial was very similar to the first one, which ended in a mistrial when Tyson's attorney asked for a jury view of the chicken facility in open court. This time, Tyson asked for the view, but in the judge's chambers prior to opening statements Monday morning.

Late Tuesday, after one day of testimony, the jury was driven by the sheriff in a van to see the location of the chicken houses in regard to where complaining witnesses live.

The prosecution paraded 21 witnesses through the courtroom before it rested late Tuesday morning. Most of the witnesses had testified at the first trial. They were primarily homeowners who live near the chicken houses. Each told of personal experiences on the three days in question. They said smells were so bad they couldn't grill outside, walk or run down the street, wash a car or do yard work.

Although B&G owner Bud Wardlaw was not at this trial (he did attend the first one), the prosecution entered a videotape of his testimony from the February trial as evidence. The jury watched it on a television screen.

One new witness for the prosecution was Tony Jones, a former B&G Poultry employee who now lives in Union County. He received a court summons Monday night to appear the next morning at the trial.

Stout, the prosecuting attorney for the Commonwealth of Kentucky, said in his closing argument that Jones and Wardlaw provided the most damaging testimony. Wardlaw admitted that there were often problems with equipment on the farm such as freezers where dead birds are kept in storage and water lines that sometimes leak, wetting litter in the houses and creating a strong smell.

Jones drove that point home when he testified that freezers "never worked" during the time he was employed by B&G and that he told Wardlaw that several times. He also said the smell inside the houses was so strong, he had to wear a face mask.

The defense called just one witness, B&G employee Tina Rushing, who testified that there were no chickens in eight of the 16 broiler houses on Aug. 4, 2000. Jurors said Rushing's testimony was also critical to an acquittal on that particular day.

 

McConnell gets appointment as magistrate
Gov. Paul Patton's office notified local officials Monday that Helen McConnell has been appointed to fill a seat on the Crittenden County Fiscal Court left vacant when her husband, Hayden McConnell, died suddenly last month.

Helen McConnell, a Republican, will serve as a temporary replacement until a permanent magistrate can be selected by First District voters during a special election in November. McConnell has not decided if she will seek election this fall.

Davidson wants city to spare old house
By Allison Evans, Asst. Editor
A Marion property owner says she will seek a court injunction to prevent the City of Marion from razing her 100-year-old College Street home.

Without the injunction, Cindy Davidson's two-story house will be demolished, possibly in the next two months because the structure violates the city's dangerous building ordinance.

The city has worked with Davidson for two years, allowing her extensions to the terms of the ordinance which outlines city and property owner responsibilities and lists defects which constitute a dangerous building. Davidson hired an attorney last month after receiving notice that the city will demolish the building. She does not believe the structure is dangerous and says it is simply wrong for the city to tear down the vacant house.

City Administrator Garry Barber said the city will advertise for demolition bids during the next 30 days. And regardless of ongoing repairs at the Davidson property, Barber said the house is coming down.

"We've given extension after extension, five or six, and she has made commitment after commitment and hasn't kept them," Barber said.

City Code Enforcement Officer Trisha Tabor said Davidson was first given notice in April 2001 that her home was included on a list of dangerous buildings inside the city limits."

She had ample opportunity to make repairs," Tabor said. "We have done everything we could, we have been very lenient."

Barber said the city gave Davidson a final 60-day extension to make repairs to the outside of the home in March. Those repairs were not made by the end of May.

The Marion City Council is not required to approve demolition of dangerous buildings; however, Barber said he will discuss the issue with the council after demolition bids are received.

City Attorney Bart Frazer said that for the city to be consistent in regard to the way it has dealt with other such properties, it must move forward."

If she doesn't feel it is being properly handled her remedy is to take the city to court," Frazer said.

Davidson, an architect and former director of Marion Main Street, said she has made one-fourth of the repairs originally requested by the city. She said the more dangerous defects have been repaired and those that remain would only affect people if they were trespassing onto her property. Davidson owns the old home, commonly called the "old Preacher Lilly House," but has never resided there.

A letter from the city dated April 6, 2001 lists 12 items that were to be repaired by July of that year in order for Davidson to comply with the ordinance. A city-hired building inspector provided a list of necessary improvements to the home, including porch, gutters, windows, roof, ceilings, floors, wiring and plumbing repairs. Cleaning and painting are also listed as repairs necessary to bring the home within compliance of the city's dangerous building ordinance."

Some other buildings in Marion don't have gutters, why do I need them?" Davidson questions. "And I don't know why some of the things on the list are considered dangerous, like the need to clean it."It isn't falling down. I'm doing the best I can and it's not endangering anyone."

She says the city isn't following its procedure by not charging her with a misdemeanor and fining her as outlined by the city's ordinance.Davidson purchased the house in 1998 from Jerry and Evonna Baker with the intention of establishing an architectural practice there. Yet, no one has lived in or otherwise occupied the home since she bought it five years ago.

Davidson also says razing her old home and others contradicts a resolution the city council passed in support of Marion Main Street and its efforts to preserve historic buildings. The council resolution was required for Main Street's application for Renaissance Kentucky funding a few years ago.

Main Street director Rose Crider says the historic building needs to be preserved and says Main Street endorses Davidson's effort to renovate the building.

The home is an asset to the community because of its long, important history in Marion, Davidson said.

The house was built between 1894-1899 for Robert Haynes. Later it served as a parsonage for First Baptist Church. In 1860, an ice house stood on the property, and in 1867 the property was sold to a black family, probably one of the first pieces of local property purchased by a African American after the Civil War.

"It seems like there is a lot of pressure to get rid of it and the source is unknown," Davidson said. "You don't tear down a building because it is an eyesore."