By Julie Ann Madden
“Just do the right thing,” Union County resident Jim Wennblom told the Commissioners at their Dec. 10 meeting in regards to Hyperion’s Planned Development zoning reversion.
Union County residents had been assured back in 2008 that if Hyperion Refining LLC failed to construct an oil refinery on nearly 4,000 acres of agriculturally-zoned land, the zoning would automatically revert back to agricultural zoning from Hyperion’s Planned Development Heavy Industrial and Light Industrial zoning.
However, now county officials are claiming the law they enacted and their constituents upheld in a referendum vote is illegal because state law requires individual landowners to petition for zoning changes.
“In my experience of watching the whole Hyperion and zoning thing go through, I think you Commissioners, in my view, should just stamp ‘Project’s Over’ and revert all the land back to ag like it was,” said Wennblom. “Call it a lost cause.”
“I had the feeling the county thought they’d have a windfall with all the new tax revenue coming in, all the building permits coming in,” he said, “and it’s over and it’s done.”
In regards to whether the zoning clause is legal or not, Wennblom said he hasn’t seen the court case that says it was illegal.
“I would think if you folks signed the zoning agreement the way it was, you’re committed to an illegal document if it’s not legal,” he said, “so then just do the right thing to straighten it out.”
It’s doubtful that Commissioners will take his suggestion though. At the Nov. 26 and Dec. 10 commission meetings, Attorney John Slattery asked commissioners to consider letting all landowners file one petition and pay just one $500 fee for rezoning all the formerly Hyperion land-optioned acres, just like Hyperion officials did when it was changed to Planned Development zoning. They told him he’d have to talk to Union County Planning Director Dennis Henze.
On Dec. 19, Henze directed the Union County Planning & Zoning Board through the first Hyperion Planned Development rezoning process for an individual landowner.
The first rezoning petition is from Ron and Maxine Bird, who own four parcels totaling 320 acres in Brule Township.
Hyperion Refining LLC officials could have had rezoned it all back to agriculture for just one $500 fee — before they released their land options, Henze told the board. But since they didn’t, now each landowner must petition to have their land rezoned and pay $500 to do so.
Union County coffers will net about $15,000 from their own constituents — many of whom believed in the county’s Planned Development zoning reversion clause.
Henze explained there was no way for all the landowners to petition at one time as state law, SDCL 11-2-28.1, requires each individual landowner to file a petition requesting the change.
There were a handful of Hyperion opponents present questioning how the county’s law was deemed illegal when it’s what people believed when they voted in a referendum vote and how is it fair Hyperion paid one $500 fee but the landowners are stuck paying it individually.
Again, Henze told the public Hyperion was a corporation so it was one petition, one fee.
The “reversion clause” was language from the county’s 1973 Zoning Ordinance, which was revised by a committee in 2008.
“They are the ones who came up with this zoning ordinance,” said Henze, “and this board and the Commissioners adopted it as they wrote it.”
“Is that what the people understood?” asked Dave Johnson of Elk Point, S.D. at the public hearing.
“No,” said Henze. “I don’t know what they thought. This is what the committee wrote and it was adopted as such. It was up to the committee to write this ordinance.”
Another questioned what South Eastern Council of Governments Community Planner Toby Brown’s opinion had been at the time as he was the committee and county officials’ adviser on the zoning revision.
“We all knew you’d have to go through a petition and this hearing like we did today,” responded Henze.
“What the people voted on in 2008 was illegal,” summed up Johnson. “What they voted on was misunderstood.”
“It looks like the law is in front of us,” said Board President Bob James,” and we have to follow the guidelines that are set before us even though there are questions in our minds.”
Henze read a statement from States Attorney Jerry Miller outlining the procedures to rezone Hyperion-Planned Development acres.
Henze noted there would be no tax benefits as South Dakota land is taxed by its use, and these acres will continue to be farmed.
“We could leave all this land in Planned Development forever,” said Henze.
A problem arises when acreage owners need financing to make residential improvements, said Henze, as residences are not an allowable use in Planned Development zoning so they might not be lent money.
“Yes, it should be rezoned,” said Henze.
“Some will never surface until something like that happens,” said James.
In response to whether any improvements or changes can be made on the land, Henze said, “There are some allowances in Hyperion’s ordinance that allows for agricultural type uses and housing and grain bins.
Planning & Zoning Board Member Jim Brewster made the motion to recommend the rezoning to the Commissioners, and Board Member Dan Fullenkamp seconded it. The vote was 4-0 with Board Member Dave Reiff absent.
The Commissioners will make the final decision after a public hearing at their Jan. 21 meeting.