Board of Supervisors v. Stickley

Present: All the Justices
BOARD OF SUPERVISORS
OF ROCKINGHAM COUNTY
OPINION BY
v. 	Record No. 003006 	CHIEF JUSTICE HARRY L. CARRICO
January 11, 2002
WILLIAM S. STICKLEY
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
John J. McGrath, Jr., Judge
This is an appeal in a zoning case, and the dispositive
question is whether a fairly debatable issue was presented by
the decision of the Board of Supervisors of Rockingham County to
deny William S. Stickley a special use permit to raise and
release game birds on his farm. 	The trial court found the issue
was not fairly debatable and held the denial was unreasonable,
arbitrary, and capricious. 	We disagree with the trial court and
will reverse.
William S. Stickley is a physician who owns and resides on
a farm containing over two hundred acres in Rockingham County
zoned General Agricultural A-2. 	In the county, commercial
poultry production is one of the primary industries. 	The county
ranks among the top ten nationwide in turkey production. 	Three
of the top ten taxpayers in the county are poultry producers
employing more than 8,500 people in 1999, not counting
individuals who are "poultry farmers."
Poultry farmers are independent farmers who receive "young
chicks" from poultry companies and "house the birds by the tens

of thousands in poultry houses" until the birds are "grown out"
and then retrieved by the companies for further processing. 	The
poultry farmers are responsible for the birds' feeding and
health while in their possession.
Dr. Stickley is a poultry farmer for Rocco Enterprises,
Inc., a commercial poultry company. 	He has "one poultry house
on a 15 acre parcel located in the middle of his land which is
surrounded by the would be shooting preserve involved in this
case." 	Fifteen acres "is the requirement for a turkey house."
Dr. Stickley can maintain as many as 35,000 turkeys in his
poultry house at one time.
Also, "for the last few years," Dr. Stickley has been
raising upland game birds in pens on his farm and releasing them
for hunting during the regular season. 	Rocco Enterprises has no
objection to his raising game birds on his property at the same
time he raises commercial turkeys.
Game birds can carry various diseases that can be
transmitted to other species, including avian influenza,
Newcastle disease, laryngotracheitis, equine encephalitis,
salmonella pullorum, blackhead, and fowl cholera. 	In a poultry
producing area such as Rockingham County, the possibility of an
epidemic in any of these diseases is the subject of great
concern because of the potentially devastating effect upon the
poultry industry in particular and the economy of the entire
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area in general, with the possibility of a ban being imposed
upon exports of poultry from the county.
Avian diseases can be transmitted to other forms of animal
life in a number of ways. 	Avian flu is especially feared. 	It
is spread through airborne transmission as well as nasal and
fecal excretions, and its virus remains infectious for
relatively long periods of time. 	Migratory waterfowl represent
an especially serious threat to poultry in transmitting avian
flu; waterfowl drop feces near farm ponds and the fecal matter
may get on the boots of poultry workers who then enter poultry
houses in their contaminated footwear.
In 1983-84, Rockingham County suffered an avian flu
epidemic, resulting in the destruction of many flocks of
poultry. 	Since that time, the poultry industry has instituted
the practice of biosecurity, a system designed "to keep
everything that could spread . . . disease out of the poultry
house." 	Biosecurity includes "doing things as simple as
changing clothes and boots before going into a poultry house or
spraying all entrants before entering a confined feeding space."
Biosecurity also includes utilizing "'all in, all out' flock
control which means that prior to the birds going into the
house, the poultry house is washed down, sterilized and
disinfected and then all the birds are put in at one time and
taken out at one time." 	In addition, the birds in poultry
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houses are isolated, with only limited human entry into the
houses permitted.
In his turkey operation, Dr. Stickley practices "all the
biosecurity" recommended by Rocco Enterprises. 	In addition, he
voluntarily installed a chlorinating system that is now a
required feature. 	His yearly average of "liveability" in his
turkey flocks is 97 percent, which is considered "extremely
good." 	His turkeys have been infected from the environment only
once, with blackhead, which "[m]ost likely . . . would come in
from . . . worms through the floor or possibly even a rodent."
Dr. Stickley obtains his pen-reared game birds by
purchasing "day-old chicks . . . a thousand chicks at a time" or
by hatching eggs either purchased from out-of-state suppliers or
derived from his own breeding stock. 	The eggs purchased out-of-
state are certified to be "salmonella and typhoid free."
Some time prior to September 15, 1997, Dr. Stickley applied
to the Virginia Department of Game and Inland Fisheries (the
Department) for a permit to propagate and sell chukar, northern
bobwhite quail, and ring-necked pheasant, and on that date the
Department issued the permit. 	Among the permit's provisions was
a statement that the permittee was not absolved "of any
responsibilities or conditions of any other federal, state, or
local laws and regulations."
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The Department permits hunting on licensed shooting
preserves in Virginia for a season that extends two months
longer than the regular game bird hunting season. 	On September
10, 1997, Dr. Stickley filed an application with the Department
to operate a licensed shooting preserve on a designated 100-acre
portion of his farm, stating he wished to hold and hunt pen-
reared quail, chukar, and pheasant. 	In response to a statement
on the application that "I am in compliance with all zoning and
land use requirements," Dr. Stickley did not check either the
"yes" or "no" box but wrote the word "pending" outside the
boxes. 	The Department issued Dr. Stickley the permit he had
requested to operate a licensed shooting preserve.
About the same time, Dr. Stickley inquired of the
Rockingham County Zoning Administrator "what he would need to
[do to] have . . . a shooting reserve, which would include the
raising of game birds and releasing them for hunting." 	A zoning
inspector advised Dr. Stickley he would need a special use
permit. 	Accordingly, on September 10, 1997, Dr. Stickley filed
a special use permit application for a private shooting preserve
on a 100-acre portion of his farm.
The Board of Supervisors (the Board) conducted a public
hearing on the application but tabled the request and decided to
make a site visit. 	On the visit, the Board apparently learned
for the first time that Dr. Stickley raised turkeys on his farm
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for a commercial poultry company. 	After the visit, the Board
directed the zoning administrator to contact the Poultry
Foundation and representatives of the poultry industry "to get
their feedback." 	The zoning administrator made the contacts and
submitted her report to the Board voicing the concerns of the
Poultry Federation and several poultry companies about "[w]ild
birds carry[ing] diseases into poultry flocks." 	At its regular
meeting on November 19, 1997, the Board unanimously denied Dr.
Stickley's request for a special use permit.
Dr. Stickley then filed in the trial court a Petition for
Review and an Amended Petition for Review. 	In the amended
petition, he prayed that the court issue a writ of certiorari to
the Board commanding it to certify its record to the court and
that the court declare the action of the Board null and void.
The Board responded to the amended petition, and the court
proceeded to hear extensive evidence ore tenus on the risk to
the poultry industry in Rockingham County from diseases carried
by wild birds. 	Finding that "the action of the County Board of
Supervisors was one that was not fairly debatable, and was thus
unreasonable, arbitrary and capricious," the court overturned
the Board's denial of Dr. Stickley's application for a special
use permit. 	We awarded the Board this appeal.
On appeal, Dr. Stickley devotes a portion of his argument
to the proposition that the Board lacked the authority to use
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its zoning ordinance "to prevent the transmission of infectious
diseases to commercial flocks of turkeys and chickens raised in
poultry houses." 	However, Dr. Stickley raised this same issue
in a pretrial motion for summary judgment, and the trial court
denied the motion, ruling that "the Board of Supervisors clearly
has authority to prohibit the raising of game birds from eggs so
long as that authority is not otherwise pre-empted by enactments
of the Legislature or utilized in a manner which otherwise
violates the law." 	Dr. Stickley has not assigned cross-error to
this ruling. 	Accordingly, it has become the law of the case,
and we will not consider the issue further. 	See Norfolk &
Portsmouth Belt Line R.R. Co. v. Barker, 221 Va. 924, 928, 275
S.E.2d 613, 615 (1981).
Dr. Stickley also argues that, because the trial court
heard the evidence ore tenus, "its factual findings carry the
same weight as [a] jury's verdict." 	However, this case involves
legislative action by the Board. 	See County Board of Arlington
v. Bratic, 237 Va. 221, 226, 377 S.E.2d 368, 370 (1989). 	In
such a case, while we accord the trial court's finding the usual
presumption of correctness, we also accord the legislative
action a presumption of validity. 	Fairfax County v. Jackson,
221 Va. 328, 334, 269 S.E.2d 381, 385 (1980). 	" 'In other
words, the presumption of validity of legislative action does
not disappear when a trial court finds that the action is
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unreasonable; the presumption accompanies the legislative action
when the latter is brought to this court for review, and it is
viable until this court holds with the trial court that the
legislative action is unreasonable.' " 	Id. (quoting Loudoun
County v. Lerner, 221 Va. 30, 35, 267 S.E.2d 100, 103 (1980)).
We said in Bratic that we have established the following
test for determining whether the presumption of reasonableness
of legislative action should stand or fall:
If the presumptive reasonableness of zoning action is
challenged by probative evidence of unreasonableness, the
challenge must be met by evidence of reasonableness. 	If
such evidence of reasonableness is sufficient to make the
issue fairly debatable, the legislative action must be
sustained; if not, the presumption is defeated by the
evidence of unreasonableness and the legislative act cannot
be sustained.
237 Va. at 227, 377 S.E.2d at 371.
However, "[t]he governing body is not required to go
forward with evidence sufficient to persuade the fact-finder of
reasonableness by a preponderance of the evidence [but] must
only produce evidence sufficient to make the question 'fairly
debatable.' " 	Ames v. Town of Painter, 239 Va. 343, 348, 389
S.E.2d 702, 704 (1990). 	And " '[a]n issue may be said to be
fairly debatable when, measured by both quantitative and
qualitative tests, the evidence offered in support of the
opposing views would lead objective and reasonable persons to
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reach different conclusions.' " 	Id. (quoting Bratic, 237 Va. at
227, 377 S.E.2d at 371).
Dr. Stickley argues that "the disease issue" in this case
"is not fairly debatable." 	He says he presented four expert
witnesses, all of whom confirmed "that there is no risk of
transmission of diseases from game birds to commercial poultry
given the biosecurity measures adopted by the commercial poultry
industry." 	Dr. Stickley also says that all the experts,
including the Board's expert, agreed "there is no documented
incident where captive pen-raised game birds resulted in any
kind of disease problem for commercial poultry."
In what turned out to be a battle of the experts, Dr.
Stickley presented Robert W. Duncan, a certified wildlife
biologist and director of the wildlife division of the Virginia
Department of Game and Inland Fisheries; Ronald G. King and
Gabriel Meza, veterinarians with the Virginia Department of
Agriculture and Consumer Services, both stationed in Rockingham
County; and Roger E. Olson, a veterinarian who is chief of the
animal health program of the Maryland Department of Agriculture.
The Board presented Elizabeth A. Krushinskie, a "[c]orporate
veterinarian" for Wampler Foods, a commercial poultry company in
Rockingham County.
Mr. Duncan testified that, in his twenty-two years with the
Department of Game and Inland Fisheries, he was not aware of any
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documented harmful effect to poultry operations from the raising
and releasing of game birds or the operation of shooting
preserves. 	Mr. Duncan tempered his testimony somewhat with the
statement that "there's neither a realistic nor a documented
case where captive-reared game birds have caused the disease
outbreak in domestic poultry given where those are separated by
the confinement and biosecurity that's presently employed."
And, while Mr. Duncan was "not sure if it is possible" for game
birds to carry avian flu, he conceded "there are a variety of
other diseases which would affect commercial poultry that game
birds do carry and are natural hosts for."
Dr. King testified concerning an outbreak of avian flu
occurring in two turkey houses on a farm in northern Rockingham
County some thirteen months prior to the trial below, resulting
in a decision to "depopulate . . . the entire farm" by
slaughtering 58,000 turkeys and causing the farmer to "suffer
financially." 	The farm was placed under quarantine, the turkeys
were loaded on covered trucks whose wheels and undercarriages
were disinfected, and the trucks followed a predetermined route
so they would pass "the least number of poultry farms" to and
from the slaughter facility.
Dr. King attributed the outbreak to "migrating waterfowl
that utilized a farm pond" and "either the farmer or some of the
workers probably walked in loose manure from the feces from the
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migrating waterfowl . . . and carried it into the poultry house
and, from there, from one poultry house to the other." 	Dr. King
emphasized the importance of biosecurity but admitted there are
"breaches in biosecurity . . . because someone got in a hurry
and just wasn't thinking." 	And, contrary to Dr. Stickley's
assertion that all the experts agreed "there is no documented
incident where captive pen-raised game birds resulted in any
kind of disease problem for commercial poultry," Dr. King voiced
no such agreement. 	Furthermore, he conceded that game birds
"can transmit avian flu" to poultry, and he said it was possible
the recent outbreak of that disease on the farm in northern
Rockingham County originated with game birds.
Dr. Meza testified he had never found an instance in
Rockingham County where avian flu was transmitted from game
birds to poultry. 	He opined that biosecurity "is the only way
to prevent" the spread of disease into poultry flocks and that
"if we don't get lax in the biosecurity . . . we will never have
what happened in 83, 84," when Rockingham County suffered an
avian flu epidemic. 	He also said that "[w]ith good
biosecurity," meaning to have poultry flocks in "isolation," he
did not consider it a "big risk" to have pheasants, quail, and
chukar "walking around outside the poultry house." 	He
acknowledged, however, that "it's almost impossible to make it
completely safe" but that "you can minimize . . . [t]he risk."
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He also conceded that game birds were the "natural hosts" of
pullorum and other avian diseases.
Dr. Olson testified concerning an instance on the Eastern
Shore of Maryland in 1993, when avian flu was found in a
pheasant that was part of a confined flock of 30,000 game birds.
It was Dr. Olson's opinion that the virus did not originate in
the confined flock but likely was transmitted from ducks that
got out and returned to the flock after commingling with wild
waterfowl. 	Although the confined flock was subjected to "total
depopulation," Dr. Olson said "it is now generally accepted that
the risk to commercial poultry flocks was negligible."
However, contrary to Dr. Stickley's assertion that all his
experts confirmed "there is no risk of transmission of diseases
from game birds to commercial poultry given the biosecurity
measures adopted by the . . . industry," Dr. Olson testified it
was not his position, and he would never say, that "there is
absolutely no risk of transmission of avian flu from game birds
to poultry." 	There is "a big difference," he said, "between
negligible and absolutely no risk." 	And he conceded there are
"several significant" diseases in addition to avian flu "that
can be spread from game birds to poultry and vice versa."
At this juncture, we note several troubling points in Dr.
Stickley's evidence. 	Dr. Stickley's turkey house is "surrounded
by the would be shooting preserve involved in this case." 	Dr.
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Stickley raises game birds in large quantities and releases them
on the shooting preserve that surrounds his turkey house. 	Dr.
Stickley's expert witnesses concede game birds serve as "natural
hosts" or "carriers" in the transmission of avian diseases to
poultry.1 Protection against the risk of the spread of avian
diseases to poultry is dependent upon the effectiveness of
biosecurity. 	The effectiveness of biosecurity is subject to the
ever-present risk of human error. 	Human error of substantial
proportions occurred in the avian flu outbreak in Rockingham
County just thirteen months prior to the trial of this case
below. 	Given all this, there is reason to doubt the sufficiency
of Dr. Stickley's evidence to challenge the presumptive
reasonableness of the Board's decision to deny him a special use
permit.
However, we will give Dr. Stickley the benefit of the doubt
and say his evidence is sufficient to challenge the presumptive
reasonableness of the Board's decision. 	The question then
becomes whether the Board has met the challenge with evidence of
reasonableness sufficient to make the issue fairly debatable.
See Bratic, 237 Va. at 227, 377 S.E.2d at 371.
As noted supra, the Board presented as its expert witness
Dr. Elizabeth Krushinskie, a veterinarian with a commercial
1 Being a "host" to a disease means being "home to a virus,
a parasite, a bacterium."
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poultry company. 	She earned her Ph.D. in "Veterinary
Microbiology, Avian Influenza," and her expertise is in
commercial poultry.2 Her employment includes managing bird
health, disease prevention, biosecurity, and investigation of
disease outbreaks. 	She testified concerning the diseases that
affected poultry in Rockingham County. 	While she acknowledged
she had not had "personal experience with any game birds
infecting poultry," she opined that diseases could be
transmitted from game birds to poultry. 	With specific reference
to avian flu, Dr. Krushinskie testified that, while waterfowl
constitute a "major source of Avian Flu," "game birds are a
carrier" and "a host of influenza."
Dr. Krushinskie stated that biosecurity in the commercial
poultry industry is "relatively good" but not "100 percent"
perfect. 	She told of a poultry farm that had tested positive
for avian flu twice in the past five years when there had been
no "direct entrance of waterfowl into the turkey operation or
turkeys into the ponds adjacent to it," but, "somehow, that
2 Dr. Stickley states on brief that "Dr. Krushinskie
admitted that she is not an expert in the area of game birds,"
that "[s]he did not know anything about what types of other
birds have been raised in [Rockingham] County," that "[s]he had
not familiarized herself with any reports of diseases of game
and wildlife in Virginia," and that "[s]he was not even familiar
with the Southeastern Game and Wildlife Diagnostic Center in
Athens, Georgia."
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virus [was] able to penetrate, gain access to that turkey
operation." 	And, she said, "[w]e don't know how."
Finally, Dr. Krushinskie was asked the following questions
and gave the following answers in the course of her testimony:
Q 	Dr. Krushinskie, if you were told of an instance of
game birds being found outside of a poultry house, would
you consider that a risk of disease transmission?
A 	Yes.
. . . .
Q 	In your expert opinion, is it . . . a realistic
threat of contamination or spreading of disease between
game birds which are released for sport, for shooting, and
commercial poultry?
A 	In my opinion, the concentrated rearing of game
birds and their subsequent release into the environment
adjacent to poultry, commercial poultry operations is a
significant risk to the poultry industry in this area.
Q 	And if there is a spread of disease from those two
flocks, it's capable of spreading to other flocks and
through –
A 	Yes. 	And the reason I say that is because if you
have an occasional pheasant in the wild, naturally, they're
a dispersed population with relatively few individuals per
square mile. 	But when you go to high density confinement
rearing, whether it's poultry or game birds, you compound
the stress, the disease exposure and the possibility for
replication of diseases. 	And that's why we see more
disease in commercial operations than you would in a few
chickens in your backyard. 	It's because of the high
density, the number of individuals you have, the kind of
production pressure they're under in a small environment
being artificially reared.
If you do that with game birds, you increase their
risk of developing disease themselves. 	Then when you
release them into the environment, you create a risk for
other poultry or other birds in the area. 	I think that's a
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significant difference from just a natural pheasant running
through the area. 	[Emphasis added.]
The question in this case is not who presented the greatest
number of expert witnesses or even who won the battle of the
experts. 	Rather, the question is whether there is any evidence
in the record sufficiently probative to make a fairly debatable
issue of the Board's decision to deny Dr. Stickley a special use
permit. 	In our opinion, Dr. Krushinskie's common-sense
appraisal of the "significant risk" to poultry from the release
of pen-raised game birds is amply sufficient to make that issue
fairly debatable. 	The Board did not act arbitrarily, therefore,
in denying Dr. Stickley a special use permit.3 Accordingly, we
will reverse the judgment of the trial court and enter final
judgment here in favor of the Board.
Reversed and final judgment.
3 Having reached this conclusion, we need not consider any
other questions raised by the Board.
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