CAFO operator Frank Pravecek of Bon Homme County violated DENR rules by having too many cattle on his feedlot. Neighbor Sharon neth turned him in to DENR for that violation. Now when Pravecek asks for a variance from Bon Homme County to bring more cows into his CAFO and Neth, as is her legal right, refuses to agree to that expansion, how does Bon Homme County reward her? It takes away her legal right and approves Pravecek’s CAFO expansion:
After 3-1/2 hours of discussion Monday, the Bon Homme County Planning and Zoning Commission granted Scotland farmer Frank Pravecek’s requests for a conditional-use permit (CUP) and variance. It marks the final formal action on the requests.
The CUP allows Pravecek to operate a feedlot with 1,800 cattle, or nearly double his current operation.
In addition, the variance waives the current requirement of signed approval from all neighbors within a one-mile radius. The reduction of the one-mile requirement would remove neighbor Sharon Neth, who has refused to provide her approval.
At the end of Monday’s meeting, Pravecek commended the commission for approving both requests.
“I appreciate and thank you for your effort,” he said. “I know you put in a lot of effort and time and thought” [Randy Dockendorf, “Controversial Cattle Operation Approved,” Yankton Press & Dakotan, 2018.12.03].
I don’t need to see DENR’s July 3, 2018, letter warning Pravecek to stop his illegal creek-polluting discharge of wastewater and his illegal housing of 700 more head of beef cattle than allowed by his permit under state law to know that this approval isn’t right. Law says you only get a break from zoning requirements if all of your neighbors agree. You don’t deserve a break if you’ve very recently broken the law relating to zoning and land use, especially if that violation involved dumping your cow crap into your neighbors’ water.
Bon Homme County citizens, protect your rights against environmental predators. Refer this zoning decision, vote it down, and let Neth’s rights stand over those of her selfish, law-breaking neighbor.
Having chaired a planning and zoning board for 5 years – I can state with near certainty that the language of the variance ordinance segment says that variances are to be granted when there can be NO USE of the property without the variance. I.E., the property owner must show that unless the variance is granted – the property is useless. Another angle that is sometimes a factor is if their are OTHER property owners in the same neighborhood who enjoy the proposed use that is at variance with the zoning ordinance.
Note* Bon Homme County ordinances are not available online either via the official county Web site (a C of C-style promotional page), or the SD Counties site (Zero content beyond the menu which links to a lot of blank pages).
In addition, variance ordinances typically state that the need for the variance CANNOT be due to any action of the property owner – and must be related to the inherent nature of the property itself (slope, underlying materials, rocky outcroppings and so on).
I must not grasp what variance means. “the variance CANNOT be due to any action of the property owner”
Didn’t he want and need a variance because he was a lawbreaker and wanted to expand his feedlot? Help me out, Richard.
Or maybe the livestock sued for relief.
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Does Neth have any recourse to the courts?
Debbo, I believe an aggrieved neighbor can appeal the decision, first to the board, then to court, under Chapter 11-2. However, I find this SD Supreme Court precedent from 2004 indicating that neighbors have to give some compelling reason why the proposed variance harms the public interest, something beyond simple objection to the project, to justify a board’s rejection of a request… which seems odd. Asking for a variance means asking for permission to violate established zoning ordinances. I would think the burden would fall on the person requesting permission to violate the law to prove that his project won’t harm the public interest that ordinance was established to protect in the first place.
But I welcome more practiced counsel to offer legal opinions here.
mfi = that means that the condition on te ground/property like insufficient distance between and existing structure and a proposed structure cannot be due to the property owner having constructed the existing structure (for example). Here’s a real life example of a variance that WAS granted during my tenure. Property owner wanted to construct a handicap access ramp to the side door of a house. Problem was – there was not sufficient distance between the house and garage to allow said new structure – and the reason there was insufficient distance was because that’s where the property owner built them. Considering ONLY that the variance (allowing the ramp to be built too close to the garage) would not have been granted. HOWEVER, the property owner had become confined to a wheelchair AFTER having built the two structures – and WITHOUT the variance, would not have been able to access their home (there was also insufficient space in te front yard). In other words, without a variance allowing less space than ordinance permitted, the property was USELESS (unusable) to the owner.
Essentially, what a variance is, is an admission that due to no fault of the property owner following the ordinance would render the property useless to them – THEREFORE – they don’t have to follow the ordinance.
There is one more caveat to a variance however; that is the property owner cannot just do “whatever” they want. They are allowed to do whatever is the minimum possible at variance from the ordinance to make the property useable. In the example cited in this story, that means they could be allowed whatever number of additional cattle in the lot as to make it more to “useless”(one extra cow? 20 extra cows?).
In the example I cited of the ramp – that minimum at variance was a distance of 2 feet.
Thanks for the legal lesson, Mr Shriever. I can even understand most of it. Thanks.
Don’t know if this fits here, but Congressman Collin Peterson, D-MN, says the farm bill is ready to pass and expects that to happen by the end of this week or early next. It’s mostly business as usual, the best that could be expected with a GOP House. He doesn’t expect anything better from the Democratic unit next year and farmers need the bill Now.
Peterson, who represents rural western Minnesota, said, “It’s a damn wonder we are where we are,” Peterson said. “This might be the last farm bill. It just seems like it gets worse every time. The Congress has become more and more urban and suburban. This last election made that even more so. And so the problem is you’ve got maybe 30 people out of 435 that have enough agriculture in their district to vote for a bill based on what the agriculture part of it is. The rest of them don’t understand and don’t care.”
http://goo.gl/CBpEJh