July 28, 2015
Board of Adjustments
The Miner County Planning Commission acting as the Board of Adjustments reconvened from July 21st meeting in the commission room of the Miner County Courthouse. Members present: Roger Wentland, Tom Reisch, Garrett Gassman, Voni Durant, and Alex Protsch. The Pledge of Allegiance was recited. The meeting was called to order by Chairman Protsch.
Motion by Wentland, seconded by Durant and carried to approve the agenda to continue the public hearing to consider the application from Bernard & Brenda Donahue for a conditional use permit to allow the construction of a CAFO (Concentrated Animal Feeding Operation) consisting of a feedlot of up to 3,500 animal units in the South East (SE) ¼ and North East (NE) ¼ of Section 27, T106N, R58W, Clinton Township, Miner County, South Dakota. Kent Woodmansey, Feedlot Permit Program Administrator and Neal Konda, Natural Resources Engineer with the SD Dept. of Environment and Natural Resources; Miner County Zoning Administrator Tami Severson and Miner County Highway Superintendent Ron Krempges were also present. Secretary Connor distributed a letter that was received from Bonnie Brown concerning the setbacks from the CAFO. The board left the courthouse to travel to the proposed site of the CAFO.
Upon arriving at the site the board was met by Bernard, Brenda, Brian, and Miranda Donahue. Bernard gave a tour and explanation of the existing (since 2009) feedlots, dikes, sediment basins, lagoon, interior roads, and feed storage area. Bernard explained the process for the flow of the drainage from the feedlots into the sediment basins to the cistern and then pumped to the lagoon. The dikes in place are to prevent feedlot run off from entering into creeks and/or sloughs in the area.
The tour then proceeded south to the proposed expansion site for the CAFO. Donahue pointed out the areas where new lots and the lagoon would be constructed. He also explained the flow of the run-off from the feedlots to the newly constructed lagoon. Those in attendance then proceeded to the south on 422nd Avenue to view the condition of the roads and the distance of the residence located to the south of the proposed expansion.
With the tour completed those in attendance proceeded back to the Miner County Courthouse. The meeting resumed in the courtroom of the Miner County Courthouse. Those in attendance included: Miner County State’s Attorney Greg Protsch and his assistance Kristian Ellendorf, Zoning Administrator Tami Severson, Jay Leibel, Attorney representing Clinton Township Board, Gary Nutter, Robert Peterson, Vicki Vining, Bill Wolf, Harvey Staffen, Bruce Nelson, Bob Henkel, Jim Krantz, Gary Moschell, Bernard, Brenda & Miranda Donahue, Ron Krempges, John Laible, Mark Neises and Gary Wolf.
Kent Woodmansey of the SD DENR gave an overview of the process for obtaining permits with the SD DENR. The permits are intended to assure water quality. A notice is placed on the SD DENR website and the department receives public input for 30 days. They require a nutrient management plan and assure that the site is not sitting on a shallow aquifer. Once the construction is taking place the department will inspect during the construction period. After completion the site will be inspected within the first 18 months and then once every 3 years. Producers are also required to attend mandatory training once the permit is approved.
Attorney Jay Leibel stated that Clinton Township is not opposed to this permit. However they have concerns that they would like addressed. They would like to see conditions placed on the granting of the permit. Those conditions include a haul road agreement between the township and the Donahues and the requirement that Donahue obtain the required permits through the SD DENR. He also stated that the township would like to have interior roads designed within the facility. Bernard Donahue stated that there is already a system of interior roads within the current operation. Donahue told those in attendance that his operation already provides assistance with maintenance of the township roads by providing equipment and an operator. Leibel voiced concern as to liability issues for the township with allowing private individuals to maintain twp. roads. Gary Moschell testified as to the current condition of the roads located around the proposed site and that they have been well maintained by the Donahues.
Board member Wentland asked Donahue about the interior roads and how many times per day the township roads are accessed with feed wagons & tractors. Donahue stated approximately 6 times/day. Board member Gassman questioned the liability issues with individuals doing work. Could the township privately contract with the operator of the facility to do the maintenance of the roads. Leibel stated concern as to the liability for the township, taxes, and that it would be much simpler to go through the township and their contracted maintenance contractor.
Donahue asked for clarification on who would determine excessive use of a road haul agreement. He stated he is worried about being taken advantage of by the township.
State’s Attorney Greg Protsch asked Leibel if the permit is approved with the condition of a road haul agreement and the parties cannot come to an agreement the Donahue’s could come back and ask for the conditions to be reconsidered. Leibel agreed and told that this situation had already occurred between townships and a proposed dairy in a northeast South Dakota county.
Following consideration of oral testimony in support; receiving written correspondence and hearing concerns of granting the application, it was moved by Gassman and seconded by Reisch that the Findings that follow be approved.
STATE OF SOUTH DAKOTA) BEFORE THE MINER COUNTY
: SS BOARD OF ADJUSTMENT
COUNTY OF MINER )
IN THE MATTER OF THE APPLICATION OF )
BERNARD & BRENDA DONAHUE FOR A CONDITIONAL USE )
That the applicants, Bernard & Brenda Donahue have made an application for a conditional use to construct a CAFO (Concentrated Animal Feeding Operation) consisting of a feedlot of up to 3,500 animal units in the South East (SE) ¼ and North East (NE) ¼ of Section 27, T106N, R58W, Clinton Township, Miner County, South Dakota, and that Bernard Donahue Trust Etal is the owner of record thereof.
That the proposed use of said realty is specifically prohibited by the zoning ordinance without applicant first obtaining a conditional use, for which he has applied and paid the applicable fee.
That upon said application, notice of hearing was given as required by the Miner County Zoning Ordinance by mailing to the adjoining landowners and by publication.
That hearing upon said application was held on July 21, 2015, with a continuation on July 28, 2015 in the Courtroom of the Miner County Courthouse.
That applicants, Bernard & Brenda Donahue appeared in person.
That Attorney Jay Leibel representing Clinton Township; Gary Nutter, Robert Peterson, Bill Wolf, and Vicki Vining Clinton Township Board members appeared to request conditions -SD DENR permits granted and a road haul agreement between Donahues and Clinton Township- be placed on the permit.
That the board visited the proposed site on July 28th at the beginning of the continuation of said hearing.
That a presentation in support of said conditional use and testimony on behalf of said conditional use was received at the hearing and that testimony and written correspondence regarding concerns for the granting of the conditional use were received at the hearing.
NOW, THEREFORE, that application, testimony at the hearing, and arguments of individuals at the hearing all having been considered, it is the FINDING of the Miner County Board of Adjustment that the application of Bernard & Brenda Donahue for a conditional use be approved for the following reasons:.
1) That the Miner County Board of Adjustment is empowered under Section 505 to grant the variance and that the requirements of the zoning ordinance regarding a conditional use have been met by the applicant.
2) That the Miner County Board of Adjustment is able to make the applicable findings required by Section 505 of the ordinance, which are considered prerequisite to the granting of a conditional use.
That the Board of Adjustment vote upon approval of such application was five (Gassman, Reisch, Wentland, Durant and Protsch) in favor thereof and none opposed thereto.
It is, therefore, ORDERED that said application be approved with the following conditions:
1. Execution and filing with the board of adjustment through the auditor’s office of a haul route agreement between Clinton Township and Bernard Donahue
2. If an agreement for a road haul agreement between Clinton Township and Bernard Donahue cannot be agreed upon, Donahue may request that the conditions be reconsidered by the Board of Adjustments.
3. Approval of permits required by the state of South Dakota Department of Environment & Natural Resources including but not limited to state general permit and any other required state permits.
Dated this 28th day of July, 2015.
Alex Protsch, Chairman
Miner County Board of Adjustment
Susan Connor, Secretary
Having no further business as the board of adjustments the meeting was adjourned.