Hearing Begins On Feedyard Appeal By Lisa Chamley The first day of testimony on Thursday in what is expected to be a two-day trial on the appeal of the building permit issued to a local livestock company centered mostly on cattle numbers, construction plans and the wording of the Temporary Zoning Ordinance.
Only a handful of witnesses were heard in the day-long hearing, presided over by Circuit Judge Lee Anderson.
The case was brought by Yankton County State's Attorney Bob Chavis, acting on behalf of Guy Larson, a resident who circulated a legal petition against the county's granting of a building permit to the Yankton Livestock Auction Market and Yankton Feedyards April 19.
The permit was requested by the livestock auction market to make modifications to its animal waste management system. Opponents have said the plans are to expand the operation, which is not allowed under current zoning, while the owners have said they are only making repairs and are within their legal bounds.
Thursday's first witness was Larry Ryken, the former owner of the Yankton Livestock Auction Market. Ryken has been in the cattle business for decades before selling the facility this June to the Yankton Land and Cattle Company, a subsidiary of Heine Farms, Inc.
Ryken told Chavis he had no documentation about the number of cattle that have been kept on the grounds historically. He could only estimate that the most cattle he ever personally had on the feedyard was 2,000 to 2,500.
When asked by attorney Dave Domina, who is representing the Yankton Land and Cattle Company in the litigation, about the highest number of cattle on the grounds at any given time, Ryken said that "on occasion, it would be in the high thousands." Depending on the market and economy, that could be between 500 cattle at low times and more than 10,000 at peaks.
Because of several sewage discharge accidents, Ryken had been told by the state Department of Environmental and Natural Resources that its waste management system must come into compliance with state regulations by Aug. 1.
Ryken said Thursday he had no knowledge or control over the planned changes, including the modifications to the waste management system, drawn up by Eisenbraun & Associates, a local engineering firm.
At the time Todd Van Maanen, an engineer with Eisenbraun & Associates, was hired in April 2001, Ryken said he had considered selling the livestock facility but negotiations were not yet under way.
"The deal was contingent on you getting the building permit from Yankton County?" Chavis asked.
"I don't recall. I don't know," Ryken said.
Asked when he first realized plans were to make it into a "major cattle feeding facility," Ryken said he didn't know, he just signed the general permit application to the state and didn't look at the plans.
"I don't know what Yankton Land & Cattle Company are going to do. I have no idea," he said.
Ryken also testified that he never walked over his property with Van Maanen to discuss the site, nor did he give him any specific cattle numbers with which to design the facility. He testified there were some sites on the drawing designated as pens that hadn't been used at all, or for years.
Chavis noted that on the building permit application, the modifications to the site were estimated at $300,000.
"Would you have spent $300,000 to rebuild your lagoons when you're trying to sell your property?" Chavis asked.
"I would have had to," Ryken said.
When Van Maanen took the stand, he said the site drawings were a representation of the pens, holding ponds and the rest of the facility as it was found when the survey crew was on site from May 5, 2001, until July 28, 2001. He said he was on site various times and had been given a driving tour of the facility by Ryken.
Van Maanen said he was given no estimate on cattle numbers, though a contract signed with Ryken said documentation would be provided on the historical livestock numbers.
"[Ryken] said, this is my facility, I need to get it into compliance with current regulations, assist me with that," Van Maanen said. "The only instructions were to bring it into compliance with DENR."
Van Maanen said the site was not designed according to the number of head of cattle, but according to the surface and drainage area. The number of cattle on a facility only come in to play when designing the animal waste management plan.
Using numbers from the Midwest Planning Service publication as a guide, Van Maanen said that with 60.04 acres available for use at the Ryken property, there was a current maximum of 15,504 cattle allowable on the site if they use a standard of 250 square feet per animal.
The new design calls for even more space per animal, 265 square feet, and the acreage decreased to slightly more than 58 acres, he said. That brings the maximum head down to 14,722.
"We were being conservative and considering animal comfort," Van Maanen said.
Chavis asked where he received instructions on the site plans.
"I had conversations, yes … with Ron and Gary Heine," Van Maanen said. "It was my understanding that they were interested in purchasing the facility."
Chavis wondered how the current pen space could be used in configuring cattle numbers when Ryken had testified earlier that some of the sites called pens hadn't been used at all or for years.
The final witness Thursday was Yankton County Commissioner Marian Gunderson, who was on the commission when the Temporary Zoning Ordinance was enacted last December.
Gunderson said she has visited the Ryken property various times over the years and has been familiar with it.
Asked by Chavis if the Ryken facility could be built today under the Temporary Zoning Ordinance, Gunderson asked him to be more specific. He asked how many cattle could be fed there.
"I know they have a water permit for [14,000-plus] cattle," she said.
The facility in question is a non-conforming use under the zoning ordinance, she said. "The Ryken operation is a grandfathered operation, I believe, and under the circumstances if it is a non-conforming use, it would be allowed."
Chavis said the word "grandfathered" is not in the Temporary Zoning Ordinance.
He also asked why the Ryken facility would be considered a "hardship" case by the commission, and said that hardships only occurred when construction has begun on a facility.
"In this case, the hardship was the requirement by the DENR that the lagoons be repaired or replaced by Aug. 1," said Gunderson. She also said the lagoons could not be started until the plans were drawn. "I would think that a plan is the beginning of construction," she said.
Current state law requires animal feeding operations to have a 365-day nutrient storage capacity, rather than the 90-day capacity, Ryken had.
"The operation could not operate unless it modernized itself," she said.
Chavis said that in the Temporary Zoning Ordinance, non-conforming uses cannot have new construction or be encouraged to survived. "Do you agree with that?" he asked.
"I would never in any way put a business out of business," she said.
Chavis said the old operation had three sewage lagoons, whereas the new plans call for 11 nutrient holding ponds instead. He considered this new construction.
Gunderson said she believed it was repairs.
"I don't believe that this operation is being expanded," she said.
Gunderson was also asked numerous questions about the April 16, 2002, joint meeting of the Yankton County Planning Commission and the Board of Adjustment. The purpose of the meeting was to direct the county zoning administrator, Tom Fiedler, to either approve or deny the building permit application made by the Ryken facility.
The joint meeting was held because of the complicated nature of the issue, she said, and they wanted to be sure everyone heard all of the same testimony.
She was also asked if the commission waived setback requirements on April 16, as well as broaden the definition of "building" without following the procedure of changing definitions as laid out in the Temporary Zoning Ordinance.
"So Ryken is exempt because [the facility is] grandfathered in?" Chavis asked.
Gunderson said that when the facility moved to its current location in the 1970s, she would have preferred it move further north and west.
"I have been in favor of zoning all of my adult life, but I have never felt that we should put someone who wants to cooperate out of business," she said.
She was also asked about the appeal procedure. Asked if she thought Larson had received a fair hearing, she said, "Yes, I do."
During the hearing, witnesses were not allowed to listen in the courtroom until after they had testified, with the exception of members of the Yankton County Commission, who were allowed to stay in the courtroom until other members of the commission were testifying.
Anderson also addressed Yankton County Commission Chairman Bill Tamisiea's request that the commission receive court-appointed legal representation. Anderson said the real part of interest is the holder of the permit, not the county.
The trial continues today at the Public Safety Center.
To contact Lisa Chamley, e-mail her at firstname.lastname@example.org.