The farmers in our articles about the rewards and risk of hog development in South Dakota (“South Dakota farmer navigates political perils of pig industry” and “Permit fights keep contract hog finishing out of reach”) had building and conditional use permits for hog barns revoked in December.

The Yankton County Commission, acting as the Board of Adjustment, upheld their zoning administrator’s ruling that the permits had expired because the farmers hadn’t started work on the barns within the required 180 days of the permits being issued.

The applicants — Josh Johnson, Volin, S.D., and Karl Schenk and Jay Cutts, Mission Hill, S.D., — indicated through their attorneys that they may try to appeal the decisions to district court.

What happened

Johnson, who currently doesn’t have any hog barns, had received a permit in December 2018 to build a 2,400-head finishing barn.

Schenk, who has two barns in operation, had permits issued in December 2018 for two 1,200-head finishing barns.

Cutts, who has a nursery barn and finishing barn in operation, had a permit issued in December 2018 for an additional barn.

A citizens group, which has opposed establishment of concentrated animal feeding operations in the county, filed a complaint that no work on the barns had been done within the 180 days required by the ordinance.

Complainant argument

The complainants contended that the county zoning ordinance clearly states that work must begin on the project within 180 days of the permit being issued. In the months before the expiration, the planning and zoning committee talked about the situation several times and told the farmers they should file for new permits. The farmers never did file for new permits, though, according to Paul Tauer, Gayville, S.D., who spoke on behalf of the complainants.

The farmers were notified that they should resubmit permit applications, he said.

“The consideration of weather was discussed and each one was instructed that the permits needed to be resubmitted before expiration, most in early June of 2019,” Tauer said in an email to the Dakota Farmer. “The ordinance does not have any specific mention of extensions or events that may ‘automatically’ extend them. The ordinance only allows for resubmittal and with the provision that no added fee will be charged.”

Farmers’ side

Attorneys Brian Donahoe, Sioux Falls, S.D., and Todd Wilkinson, De Smet, S.D., represented the farmers in the hearings. They said the farmers believed they had started work on the barns. They had gotten design plans done, ordered materials and lined up contractors. But the weather was too wet in the first half of 2019 to move topsoil from the sites or dig foundations.

Cutts put up a mortality enclosure on his site that he said was part of the permitted plan. Schenk continued building one of his barns because he believed he had started work within the 180 days as required.

“Both my clients, Joshua Johnson and Karl Schenk, commenced work on the projects as that word is normally understood,” Donahoe said in an email to the Dakota Farmer. “Furthermore, the ordinance in question only applies to the building permit, and therefore should only require an extension, or at worst a new or renewed building permit, which my clients requested but were denied.”

Administrator turnover

Yankton County has had several different zoning administrators in the past several years. Schenk and Cutts said they believed that didn’t have a problem with the 180-day rule because the previous zoning administrator had said they were okay. Nothing, however, was put in writing. The current zoning administrator issued the stop work orders several days after he took the post in October.