The Yankton County Commission is bracing for another potential zoning fight.
On Friday, the board met in a special meeting to discuss a potential CAFO moratorium in the face of the possibility of losing some of its zoning authority.
Commission chairman Dan Klimisch said there are mounting questions about whether some of the county’s zoning ordinance is valid.
“We’ve recently got quite a few applications, around half a dozen, from many individuals in the county,” he said. “(There’s) ex-county commissioners and an ex-Planning Commission chairperson stating that our 2006 zoning ordinance could potentially be invalid and they wanted to build all of these hog barns throughout the (county) without a conditional-use permit and just with a building permit. We don’t know, at this point, if that is valid or not. We believe it isn’t, but trying to be proactive, we just wanted the public to know this is a situation.”
He added that an improperly passed ordinance could have huge ramifications.
“The way the South Dakota law reads, if it was enacted incorrectly, it gets thrown out,” he said. “That should scare people in the community because you could wake up in a few months and have a hog barn in front of you with no permitting and no safety at all.”
During the course of Friday’s meeting, it was noted that no pending challenges to the 2006 ordinance exist.
When asked by Commissioner Don Kettering if a moratorium on CAFOs would be legally permissible at this point, State’s Attorney Rob Klimisch said he didn’t feel it would be.
“I think if our attorney and the attorneys representing the county through the insurance companies believe that it’s not a legal act, we can’t do it,” Kettering said.
Rob Klimisch said it would be best to wait until a challenge to the 2006 ordinance amendments manifests itself.
“Right now, we have zoning in place,” he said. “If it was determined it’s invalid, it’s going to take a period of time before it would occur. It has to get in front of a judge. The judge has to make a determination. Right now, our zoning is valid and enforceable.”
He said the imposition of emergency zoning should probably wait until there’s an actual challenge to the ordinance.
“At this time, my position is that we can’t put emergency measures (in place) even though there could be an issue with the zoning in the future,” he said. “I think, until we hit that position, this is something we’ll have to address in the future.”
Rob Klimisch pointed out that emergency zoning wasn’t something the commission could vote on Friday due to the meeting being called on Wednesday.
“Under the emergency zoning measure, you have to provide a 10-day notice and then you have to have a hearing,” he said. “It’s something we couldn’t address today, even if we wanted to.”
After the meeting, Dan Klimisch said he’d rather not wait for a challenge to appear.
“I like to be a little more proactive, but I’m listening to the county attorney on that,” he said. “I want to protect the safety, health and welfare of the people, and I think it’s better to be proactive than reactive. But these are the laws, unfortunately, that we have to follow.”
He added that county officials will continue to assess the situation.
“What we’re going to do is do a comprehensive review of our zoning ordinance,” he said. “We’ll have to see if the hearings were noticed like they were supposed to be.”
As for a lack of action at Friday’s meeting, Dan Klimisch said it was more important to make sure the county isn’t subject to further litigation.
In other business Friday, the board:
• Appointed Gary Vetter as development services director acting as zoning administrator/commission assistant retroactive to Oct. 21.
• Heard from Rob Klimisch on recently issued CAFO stop-work orders for which, he said, due process is being followed and appeal hearings are being set.
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