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Dynes fined for nuisance violation

Hermiston’s nuisance ordinance was enforced in court Friday.
Jade McDowell

East Oregonian

Published on September 22, 2017 6:37PM


Four months after citizens first submitted complaints about an odor nuisance in the area of south Highway 207, Luke Dynes was fined $435 for a violation of Hermiston’s nuisance code and ordered to abate the smell.

Attorney Patrick Gregg stated in court that his client Dynes plans to appeal the decision to Umatilla County Circuit Court, which would cause the order to be stayed until a ruling on the appeal is made in circuit court.

The legal wrangling shows the difficulty of using city code to put a stop to odor nuisances, which is something the nearby city of Stanfield has been wrestling with after complaints about the smell coming from a dehydration plant located there. In response to its problem, Stanfield adopted a new ordinance mirroring language found in Hermiston’s nuisance code, under the belief that the Hermiston version would be more likely to hold up in court.

That language was tested in Hermiston’s municipal court on Friday and stood the test by only a narrow margin.

The case involved a set of complaints by three different citizens, alleging that a strong “stench” from a food waste recycling operation at 78227 S. Highway 395 — a property owned by Dynes and used by various tenants, including limited liability companies of which Dynes is a member — had caused them to have to stay inside their homes on April 24. One complainant, Sarah Anderson, described the smell in court on Friday as “vomit in vapor form.”

Under Hermiston’s nuisance code, there is evidence a violation occurred if there is “oral or written complaint of three or more persons, within any 12-hour period, to the effect that odors emanating from any activity within or in the vicinity of the city are causing adverse health effects, significant discomfort, or serious inconvenience to the persons (or to minors within the custody or care of the persons) at a residence or place of business within the city limits.”

City residents George Anderson, Will Anderson and Sarah Anderson each submitted letters to the city dated May 11 describing their discomfort on April 24.

Hermiston assistant prosecutor Blaine Clooten argued that their letters fit the definition of evidence as outlined in the ordinance, but Gregg disagreed, stating that the “within any 12-hour period” clause coupled with the present tense wording meant that the complaints about April 24 would have had to be made within a 12-hour period of April 24.

After a discussion on whether the “12 hour period” clause was modifying the timing of the smell or the timing of the complaints, Judge Will Perkinson stated he believed the clause “modified the effect the odor has on three or more people,” as argued by Clooten.

Perkinson also disagreed with Gregg that it was a company, not Dynes himself, that was in charge of the property and therefore responsible for any nuisances that may have been caused.

In his closing arguments Gregg also questioned whether there was a “preponderance of evidence” that the smell had indeed come from activity at 78227 S. Highway 395. While crimes must be proved “beyond a reasonable doubt,” for a violation the city must only provide a preponderance of evidence, which is often defined as a 51 percent chance of guilt.

“The city has not gotten close to 51 percent,” Gregg said.

He said that the witnesses did not state in their testimony or in their letters of complaint that they had actually driven to the property and had seen that activity there was causing the smell, or that the smell was tied to Dynes. He pointed to a number of other agricultural and food processing operations within a mile of the property, including a feedlot, Shearer’s Foods and Bud Rich Potato, that could have been causing the odor.

In the end Perkinson said that “just by a hair” the evidence spoke to the odor more likely than not being caused by activity on Dynes’ property, and found Dynes guilty of a Class A violation. The violation is punishable by a minimum of $220 and maximum of $2,000. The presumptive, or standard, fine is $435, which is what Perkinson imposed.

There are other complaints about Dynes submitted to the city of Hermiston about odors on other dates, but each date counts as a separate “nuisance” that must be addressed separately in court.

The Department of Environmental Quality issued a civil penalty of $29,534 to Carter & Wyatt Holdings LLC for commercial or industrial activity at 78227 S Highway 395 without holding a Water Pollution Control Facilities permit from the DEQ. A letter sent to the company notifying it of the fine states it is because “your unpermitted storage and discharge of vegetable wastes, which are high in nitrogen, poses a risk to groundwater.”

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Contact Jade McDowell at jmcdowell@eastoregonian.com or 541-564-4536.



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