Commissioners weigh industrial, agricultural uses of property by David Lias The idea of building a fertilizer plant in Riverside Township is being met with resistance from some neighboring landowners.
Their fear of the consequences of an accident at the plant and the possible contamination of area groundwater, however, wasn't the major factor that swayed the Clay County Commission May 30 to vote against rezoning the site from agricultural (A-1) to commercial (C-1).
The commission was more bothered by the lack of details in Brad Trudeau's proposal, and the fact that it was being asked to change a parcel of ground in the heart of the county from agricultural to commercial use � commonly referred to as spot zoning.
Trudeau, of Centerville, wants to build the plant on property that was the home of the Seven Mile Station before it burned down several years ago. He came to the May 10 county commission meeting with a recommendation from the Clay County Planning/Zoning Commission that the zoning change be allowed.
Guidelines in place Trudeau told commissioners that the plant would be constructed and operated following guidelines set by the South Dakota Department of Agriculture and the South Dakota Department of Environment and Natural Resources (DENR).
"This has to be set up the way they want it to be set up, or it won't be set up at all," he said.
Trudeau noted that he is aware that some property owners are worried about an accident or a catastrophe, such as a tornado, causing contamination from the plant to drain into groundwater in the area.
"As far as the drainage problem, yes this is a natural drainage ditch," he said. "There is such a thing as diking an entire property so it doesn't get to this ditch."
An underground culvert, Trudeau added, might also be put in place to keep spill from reaching the ditch.
"There are a lot of different things that can be done," he said. "I'm just a little guy out here trying to compete with the big guys. I don't have any fancy lawyers here like a big corporation would have if they so wish to do something like this.
"I think we have to rely on the agencies that I have to go through to make the right choice on whether this plant is set up environmentally safe," he added.
Trudeau presented commissioners with a rough sketch that showed the proposed location of 40-feet tall tanks for storing dry fertilizer, six tanks in a contained area that would contain liquid fertilizer, and a warehouse that would be surrounded by a dike.
Purpose of zoning
John Davidson, a resident and property owner in Riverside Township, told county commissioners that they must shift their focus away from whether a fertilizer plant would be a
er use for that piece of land, and focus instead on the purpose of zoning.
"Zoning itself recognizes that there is a whole range of legitimate land uses," he said. "The purpose of zoning is so that you arrange land uses to minimize the conflict among land uses. "A plan like this is a right thing, but it can be a right thing in a wrong place. Zoning aims to minimize those points of friction among land use and the very purpose of zoning is to encourage land development," he added.
Davidson told commissioners that land developers who have to go the bank and borrow money don't want to buy a nuisance lawsuit from neighboring property.
"As a rural landowner who relies upon the existence of an ag zone, what concerns me more generally here is an absence of standards," he said. "It seems to me that what the commission here is doing is claiming the right on a case by case basis to put industrial uses anywhere in the county anywhere that you want to so that the agricultural zone is some sort of industrial wastebasket."
Davidson said industrial uses and ag land are both right purposes, they are both right uses, and the purpose of zoning is to minimize conflict between the two.
"Here what you're doing is taking one person who has invested heavily in an agricultural property, and putting another right use, a legitimate business or enterprise, flat up against it. That's exactly what zoning is intended to avoid," he said.
Davidson said there is a great deal of investment in the county in the agricultural zone in agricultural uses and associated residential uses.
"Those people are entitled to rely upon the agricultural zone. What you are saying is we'll drop in an industrial use any time, any place, any standards. This goes against anything associated with fair process."
Property owner support
Trudeau presented the commission with a document containing the names of property owners who support the construction of the fertilizer plant.
"I have a list here of 34 adjoining landowners who are in favor of this rezoning to support this business," he said. "This site has already been zoned once in the past as commercial. That's one reason we picked to have it there.
"I'm sorry, but really the only guy who is objecting is Roger Hansen," he added. "I know he owns a lot of land in Clay County, but Roger isn't exactly actively engaged in farming. His land is all rented out to his son. The adjoining landowners are very much in favor of this."
Hansen told the commission that of the 34 landowners, many don't live in the area, and all but three or four are upstream of the proposed location. One of the landowners, he said, lives northeast of Centerville.
"I also don't know that the person who was asking people if they would sign this petition was telling them exactly the total scope of this operation. It's one thing to say that this is a request to build a commercial ag products sale facility," Hansen said. "If you read the heading of what the petition says, it doesn't tell anyone specifically that there is a contemplation for a large volume of the product to be stored and the potential for a hazardous situation."
The main question
Commissioner Paul Hasse indicated he was mainly concerned with one detail � zoning.
"When you rezone to C-1, there are several different types of businesses permitted in that district. Is is right to rezone it or not? If it goes to C-1, there are certain permitted uses. Or should it go to I-1, which includes ag businesses? Because the way I look at it right now, if this rezoned C-1 it would have to have a special exemption for ag business," he said.
Hasse added that he believed the commission was being asked to spot zone.
"Centerville, Wakonda or Vermillion have industrial parks that are adjacent to the cities that can be annexed, or are already in the city limits that would be the place for this kind of business, I think," Hasse said. " Certainly, I'm not going to favor spots around the county being C-1 or I-1 when they could be located next to or in a city or an incorporated area.
"I don't know if I agree with you that it has to be in the outskirts of Wakonda, for example, or has to be in the city limits of Vermillion," Trudeau said.
"It's not a matter of whether it's you or whether its a fertilizer plant or whether it's someone manufacturing tractor parts, the question is do we want to change this into a different zone," Commission Chairman Jerry Sommervold said.
Trudeau noted that both the county's planning and zoning board and the state's attorney have indicated it is perfectly legal for the commission to set up a commercial area or an industrial area wherever it wants to.
"But the comprehensive plan doesn't recommend industrial parks outside of city limits," Hasse said.
Trudeau said he had tried to locate property in Centerville's industrial park, but it lacked the truck access and three phase electrical power that he needs. "I guess that's why this (Riverside Township) location is appealing, because it had all of those there. I tried to buy in Centerville, and couldn't find anybody up there who would give up their ground, basically," he said.
Greg Merrigan of the Clay Rural Water System told the commission that the system's board of directors has discussed the proposed industry. The site of the fertilizer plant is within two miles of the water system's wellhead.
"We've met with some ground water experts. We don't feel that the facility is a threat to our ground water supply. We've met with Mr. Trudeau and he has explained what he is planning on doing," Merrigan said. "We told him we are concerned about drainage and monitoring and his insurance requirements, and if he did go ahead with his plans to construct this, we asked that we get a copy of his facility plan."
"What we're actually dealing with is not what type of building goes on this place," Sommervold said. "What we're dealing with is whether we should spot zone an area out there."
During the lengthy discussion, a motion was made to table the issue so more information could be obtained. It died for lack of a second.
A motion by Hasse to deny the zoning change, however, eventually was seconded and approved, with Ralph Westergaard casting the lone no vote.
"This doesn't necessarily mean that this is a dead horse. You just might have to go about it from a different angle," Sommervold told Trudeau.