Lawyers say Fischer can vote on hog operationDavison County Commissioner was absent during key hearing on conditional use permit.
By: Ross Dolan, The Daily Republic
Davison County Commissioner Jerry Fischer can vote on a proposed hog operation in Baker Township if he so chooses, but he has to do his homework first.
That was the gist of the official opinion offered to the commissioners Tuesday at the courthouse in Mitchell by State’s Attorney Pat Smith and Deputy State’s Attorney Jim Taylor.
Fischer was out of town on family business April 17 when the commissioners, sitting as the county Board of Adjustment, considered an application from Jackrabbit Family Farms to operate a 5,400-sow breeding operation in Baker Township, southwest Davison County.
They postponed a final vote on the matter until 11 a.m. May 1, citing a need for more information on the project’s effects on water and other matters.
County ordinances require a “super majority” — a 4-1 vote — of the five-person board for passage of a conditional use permit. If one person is absent, a minimum of four votes is still required for passage.
Smith told Fischer that he could participate in the upcoming vote if he reviewed all testimony, but he would not be forced to vote.
As such, Taylor warned the commissioners against “ex parte,” or one-sided, conversations with pro or con factions on pending issues before the Board of Adjustment, to avoid potential charges of bias.
Any such ex parte communication should be disclosed at the public hearing, he said.
“You’re acting like a judge or court, and you must make a decision based only on the evidence presented,” Taylor said.
The commissioners are limited to determining if an applicant meets the standards for a conditional use permit laid out in the county’s zoning ordinances and comprehensive plan.
Taylor’s information called into question material offered to the commissioners by Lorin Pankratz, a lobbyist for the South Dakota Pork Producers, during the public information part of Tuesday’s meeting. Pankratz presented the commissioners with some informational folders and offered to be resource for the board.
“That’s a decision for you to make,” Smith said.
In any case, Taylor said Fischer will have to make a public statement about whether he’ll vote, and he’ll have to do it prior to the meeting.
“It’s ultimately your decision,” he told Fischer.
Susan Kiepke said she has not completed minutes from the April 17 meeting and only partial voice recordings are available of those proceedings.
Her statements led Baker Township resident Darrell Mueller to wonder if Fischer will have enough information available to take part in a final vote.
Fischer also wondered about that, but made no announcement either way.
As a quasi-judicial body, Taylor said, the members of the Board of Adjustment act like judges.
The commissioners did not view the contents of the folders and Commissioner Denny Kiner, after hearing Taylor’s orientation, asked Auditor Susan Kiepke to set aside the folders until after the May 1 hearing.
Taylor emphasized that the compliance with the county statutes should be a guiding principle for the board.
“Neighborhood opinion is useful, but it is not sufficient to either allow or to deny a conditional use permit,” Taylor said.
In other business Tuesday, the commissioners, sitting as the county Board of Equalization, bumped up against a recurring protest from farmers that the soil classifications assigned to some properties are not accurate or equitable.
Soil is classified according to its production potential, but farmers Glen Lowrie, Richard Dierks and George Ryks argued that some of their most expensive land cannot be farmed because it lies in flood-prone areas, or along creek beds or areas with rocks. The land is not suitable for the crop use upon which their assessments were based, the men said.
Director of Equalization Kathy Goetsch said she values all land according to the guidelines she has been given. She has notified the state Department of Revenue and Regulation about the problem.
“We’re still awaiting a response from them, and I know they are reviewing our submission at this time. We hope to have a response by next tax year,” she said.
Goetsch said not all farmers are protesting the ratings, “but it’s my job to make sure they’re treated fairly.”
The board also:
• Lowered assessments on three tracts owned by Linda Hanson in Blendon Township due to inundated property: the southeast quarter of Section 29 went from $293,555 to $273,930; the northwest quarter of Section 33, from $207,055 to $188,400; and the northeast quarter of Section 32 from $267,130 to $207,910.
• Lowered the total assessments to property owned by George Ryks, on three properties near Ethan, from $557,830 to $469,965, after adjustments for inundated properties.
• Lowered the total assessments on parcels owned by Richard and Beverly Dierks, near Ethan, from $383,266 to $261,255 after adjustments for inundated property.
• Made no changes to assessments on property owned by Russell and Judy Cross at 101 S. Lindman St., Mount Vernon, or to land owned by Glen Lowrie in the southeast quarter of Glen Lowrie’s First Addition in Rome Township.
• Affirmed the 100 percent nonprofit status of Mitchell Habitat for Humanity.