A proposed ordinance that would have changed the zoning of land bordering the Missouri River from NRC Natural Resource Conservation to RR Rural Residential failed to be approved by the Clay County Commission on its second reading at the commissioners’ Tuesday meeting.

The proposed zoning change was approved on its first reading before the commissioners at their meeting last Tuesday, Dec. 28. The request for the zoning change was sent to the county commission after the Clay County Planning Commission voted in favor of it at its Nov. 29 meeting.

Commissioners Betty Smith, Richard Hammond and Phyllis Packard voted against the request to change the zoning and Mike Manning and Chairman Travis Mockler cast affirmative votes.

Had it been approved on its second reading, the ordinance would have applied RR Rural Residential zoning to approximately 56 acres of land located at the south end of 460 Ave along the river. The land is currently zoned NRC Natural Resource.

This rezoning would allow the creation of a housing subdivision made up of 18 lots that would be located east of the boat landing at Clay County Park.

Each of the proposed lots in the development, on which a residence may be built if zoned RR Rural Residential, would be between two and two-and-a-half acres in size.

Sarah Taggart, an agent for the owners of the river property, submitted the rezoning petition in late September to Clay County Zoning Administrator Drew Gunderson requesting that the property’s zoning be changed to RR Rural Residential.

According to the application, the property is owned by the Daniel Heine Living Trust, 3213 6 Zenker Valley Road SW, Centralia, Washington, and Russell and Darcy Olson, 302 Walnut Street, Maskell, Nebraska.

Tuesday’s decision doesn’t mean that houses can’t be constructed on the property. Not as many lots and homes can be developed on land zoned NRC Natural Resource Conservation – discussion during the meeting indicated that nine lots with homes could be developed if the zoning of the property didn’t change.

Other steps, such as the owners seeking conditional use permits from the county, must be taken before additional lots and construction may be developed beyond that additional nine under the current NRC Natural Resource Conservation zoning.

After hearing comments from both proponents and opponents of the zoning change, the discussion among commissioners dealt with zoning regulations, Clay County’s Comprehensive Plan and the river itself.

“I see it differently, based on the NRC district. The NRC district was created by former commissions to really protect views, preserve natural settings for wildlife habitat, really to preserve this whole riparian zone, to add to the esthetic quality of the community and prevent the destruction or pollution of natural resources,” Commissioner Betty Smith said. “The applicant is asking for a change in zone to allow higher density development and to string 18 houses along the river.”

Smith noted that currently there is a six mile stretch of river front that is either in the NRC zone or free and clear because it belongs to the federal government.

“This will actually interrupt that wildlife corridor. It will break up that six-mile stretch,” she said. “It’s opposed by the National Park Service – changing the zone – for some pretty good reasons. When we talk about a free-flowing river, it’s more than just a concept. It actually changes the ecology of both the river and the riparian zone, so we’re in not only in this 59-mile stretch of this National Park Service river, but we’re also in this segment of it that is really unusual and critical.”

The wild, free flow of this portion of the river means it contains sediment that allows pallid sturgeon to breed, Smith said.

“We have a section of the river that is unique in the entire country. Reading through the National Park Service Foundation document for the Missouri National Recreation River, in this particular stretch it is of ecological value to fish and wildlife,” she said. “It has unique geological value, recreational value, scenic value and cultural value.

“It’s one of the few sections of the river that hit all of those values. I’m with the applicants that they should be allowed to use their land to its highest and best use, but the comprehensive plan of development 20 years ago determined that the highest and best use of this land is National Resource Conservation land,” Smith said. “The applicants have held this as National Resource Conservation land for all of this time.”

Smith said changing the zoning would not change the landowners’ rights.

“They have all the rights that are in the comprehensive plan and have been for many, many years,” she said. “What they’re asking for is additional rights so that instead of building nine to 12 homes, they can build 18 homes.”

Smith said she understands that rezoning to RR Rural Residential so that additional homes could be built would be a great economic benefit to the landowners.

“But I think we as a commission are called to look at the broader interests of the community, of the national park and of this really precious space that we have,” she said. “… the positives are the applicants would get to build a higher density subdivision, but the negatives are that it changes the nature of the river, in a part of the river that is unique and important. It interrupts a wildlife corridor and it’s opposed by the National Park Service because it would change the nature of the national river.”

“I think when you get right down to it, this is just a zoning issue. You guys are asking for the establishment of a new zoning district in a particular spot and as commissioners and, I think, as the folks on the planning commission should take as one of the main considerations is how consistent this particular land is and will be going on with adjoining land uses,” Commissioner Richard Hammond said.

He noted that downstream from the property currently zoned NRC Natural Resource Conservation is federal land that is protected for wildlife purposes. Upstream is the Clay County Park, which is state-owned property that Hammond describes as a nature preserve.

“If we remain with the present use, really we’re not adding or subtracting property rights at all. The folks that own that property presently can continue to use it as they have. They have the right to put at least nine houses on and double that with conditional use,” Hammond said.

He said he “doesn’t feel great about having a new residential district in the country, myself, in that particular place within the country. I think we have a rural residential district that is a de facto rural residential district upstream and it’s there because of, probably, misapplication of zoning law, making a lot of exceptions to the way that it has been zoned years and years and years.

“I don’t know that it’s in the community’s best interest to change that,” Hammond said.

Proponents

Taggart told commissioners at the beginning of the discussion of the rezoning topic that it was the intent of her late uncle, Daniel Heine, to develop his riverfront property, which he owned for over 50 years.

“You have in front of you a rezone request that fully complies with the ordinance put in place by this governing body,” she said. “Your ordinance planned for and makes specific provisions for residential lots along the Missouri River. The ordinance expected rezoning from NRC to Rural Residential which is why we chose to apply for this specific zoning designation.”

Taggart noted that the rezoning request has been recommended for approval by the county zoning administrator, the county planning commission “and there’s no precedent for the denial of residential river lots along the Missouri.”

She added that what she heard from county commissioners at last week’s meeting was agreement that under current zoning, residential lots are allowed on the property.

“The exact number is the only thing in question, so, it is abundantly clear that this property will not remain as it is. We submitted the application requesting the rezone to Rural Residential because everything we are asking complied with this ordinance,” Taggart said. “It seems to me that ordinances are available to be used and it makes sense to choose the most straightforward path.”

She said it also makes sense to have all the property rezoned together so that the entirety of the property meets the same development standards in perpetuity and the protection of the tree line will be continued uninterrupted.

“This development will have no environmental effect on the river or on Clay County Park,” Taggart said. “Other developments along the river have not shown to, including the development that is Clay County Park.”

She added that the riverbank at the edge of the property is already stabilized and the level of traffic on 460th Street, which would lead to the housing development’s entrance, would not be a nuisance or bring additional wear and tear to the road.

“It would be difficult to believe that this would even register in terms of wear,” Taggart said. “Campground equipment alone involves giant trucks pulling campers and fifth wheels and motor homes coming and going continually along with all of the pickups pulling boats to use the landing.”

Clay Rural Water is fully capable of handling the water needs of the development and Clay-Union Electric is ready and able to install electricity, she said.

“The installation of all utilities along with the road (leading to the subdivision) will be privately funded,” Taggart said. “We are asking for no contribution from the county. The only thing we ask is to exercise our right to utilize a zoning designation established by this commission on a fully compliant application.

“We want to achieve the highest and best use of this land,” she said, “fulfill the owners’ intention of the land, meet the enormous need for residential building sites and provide a great deal of benefit to the county.”

Denying the application, the new precedent that will be set will be the commission ignoring its own ordinances on a whim, that compliant applications can be denied without reason “and that greatly marginalizes the hard work and the expertise of the zoning commission.” Taggart said. “To deny this application would send a clear message that owners can have property rights stripped away in favor of those who have no ownership or material interest.”

The housing subdivision is designed with 18 lots, she said, because “it spans perfectly along the entire length of the tree line which will preserve the tree line and eliminate the possibility of its destruction in pursuit of other uses. The two-acre lot size was also chosen because it is the size that is consistent with what my uncle directed in his trust and which he had chosen because of practicality, esthetics and with the knowledge that this had always been approved in the past,” she said.

Taggart told commissioners that their vote to approve the zoning request will show that a fully compliant zoning application will not be arbitrarily denied.

“It will show your resolve to resist pressure to deny private property rights,” she said.

Tom Reynolds, an attorney representing Taggart, noted that his client has done everything proper in the application process, the application has been recommended for approval by the county planning commission and it received ample support at last week’s county commission meeting.

“There is a lot of precedent for this rezoning,” he said. “It appears to us that they’ve all been granted in the past.”

Reynolds said there are other routes that may be taken to make the development happen.

“But this is a lot cleaner for the commission, in my opinion,” he said, noting that “the commission would be doing itself a favor if they approved it in this form. There is no legal reason that the commission can deny the application for rezoning.”

“I’m here because I’d like to see the betterment of our county and the things that this can bring to the table for that with the tax revenue,” Kyle Jensen, a resident of Clay County, said, noting that 800 acres in the county have been purchased by the government that are no longer generating real estate taxes. The boat ramp at the river and the campground were all built by the government.

“We are all paying for that, and we are not collecting taxes on that anymore,” he said.

Jensen said he didn’t believe the housing development would cause any additional issues with the county road leading to it and Clay County Park and noted that there are more than 40 residential homes in a development elsewhere along the river.

“In my opinion, it is a beautiful stretch of river,” he said.

Opponents

The rezoning application has received strong opposition from several citizens since it was first acted upon by the county zoning commission late last November. That opposition has not wavered as commissioners heard again from local people voicing a desire that the NRC Natural Resource zoning be kept in place.

“The NRC designation does not prevent houses from being built … but does prevent a subdivision from being built – an 18-house subdivision – also potentially considered unwanted sprawl in the detailed comprehensive plan,” Cindy Gehm of Vermillion said.

Meghann Jarchow, a University of South Dakota professor, said she has supervised students who have researched the Missouri River and has learned from people who have deep knowledge about the river.

The portion of the river that flows in the Vermillion area, she said, is the remaining “free-flowing” portion of the Missouri.

“The more that we stabilize the banks, the more it limits the options for the river to move,” Jarchow said. “... I think that we know really well that all of the landowners will stabilize the banks. You’re not going to build a beautiful house and not allow the river to move and put your house in the river. It will be really important to stabilize those banks to protect the property.

“There’s a precedent that this is in this really important, unique area and the more we start to allow bank stabilization, the more you change how the river can move and, of course, the more you affect the people living downstream from it,” she said. “For all of those reasons, I think it’s really important in this special designated zone to keep it in that zone and to allow the river as much flexibility in maintaining its free-flowing nature,” urging the commission to allow the landowners to do their planned development without a RR Rural Residential rezoning.

Susanne Skyrm of Vermillion told commissioners that the proposed housing development would harm the environment in the area along the Missouri River.

“If we love the river and we want it to be natural, we should make this whole area a preserve, not build houses on it,” she said. “I know that’s not going to happen, but at least we can minimize the number of houses being built on it.”

“I do need to take issue with the notion of variances only coming from people who own adjacent property,” Sharon Gray of Vermillion said. “I would say all of us own the adjacent property because the Clay County Park is our park and that’s why we’re here. We feel, as fellow citizens and owners of that space and enjoyers of that space that we need to be heard.”

Gray said the county’s comprehensive plan specifically notes the need to preserve the natural resources conservation river and urged commissioners to keep the NRC Natural Resource Conservation zoning that will still allow homes to be built while providing greater protection to the river.

The Missouri River, from Sioux City to New Orleans, has been channelized, said Judy Sharples, Wakonda, and above Yankton, the river has been contained in a series of inland dams.

“This is it. This is the last, remaining, free-flowing stretch of the Missouri River,” she said. “As such, every mile is precious and it’s irreplaceable and I’m asking you to do your duty to preserve and protect this precious resource that we have. Please vote no today.”

“The property in question can be developed under the current regulations,” Paul Hasse told commissioners. “You don’t need a zoning change,” pointing out that a subdivision located further up the river was done that way.

Douglas Sharples-Schmidt of Wakonda said the housing development may result in the destruction of habitat of birds and other wildlife.

“This building development won’t destroy the entire stretch of the river that is still natural, but this area that it will be built in will not be the same,” he said.

Connie Krueger of Vermillion told county commissioners that Tuesday’s meeting was an opportunity for them “to help people like us protect our rights to public property, protect our right to zoning that is already in place.”

Opponents, she said, aren’t talking about hurting anyone’s current property rights. “We’re talking about the commissioners standing firm and saying ‘we do not feel it is in the best interest to grant additional property rights’ – that the people are part of public taxpayers who own Clay County Park – and somebody has to stand up for us, somebody has to help us and that, I think, is why the county commission exists. There’s nothing prohibiting the building now. What we don’t want is additional property rights (to be granted). What we don’t want is additional encroachment on the wild river.”

Dave Struckman-Johnson, who resides on Timber Road close to the location of the proposed housing development, urged commissioners to consider not only private property owners’ right but the rights of those who enjoy public property.

“I think we need to balance things,” he said.

Harry Freeman, a Clay County resident, said he is a very frequent user of the river and Clay County Park.

“We have a strong, material, personal and public interest in protecting this land along the Missouri River,” he said, adding that courts have recognized the paramount rights of the public by ruling that navigable lakes and rivers are held by a state in a public trust for the benefit of its citizens. Citizens have a responsibility to protect this public trust from harm.

“Given that this stretch of river is also a national park,” Freeman said, “it is owned by all citizens of the United States through their tax dollars. In this way, the people of Clay County who speak on behalf of the river are ambassadors to all U.S. citizens and the decisions we make here as citizens and as commissioners stretch way beyond the boundaries of Clay County in terms of their ramifications.”

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