A joint meeting of the Clay County Planning Commission and the City of Vermillion Planning Commission lasted 90 minutes Monday night and ended with city planning commission members voting to table the application of a conditional use permit made by Nutrien Ag Solutions.

The permit is needed to allow the company to go through with plans to construct an agricultural retail facility that would sell seed and dry and liquid fertilizer on 22 acres located at the southwest corner of the intersection of SD Highway 50 and 466th Avenue.

The two planning commissions met in the City Hall meeting chambers before a standing room only crowd. The commission members heard conflicting recommendations from Vermillion City Engineer Jose Dominguez and Clay County Zoning Administrator Cindy Aden.

Dominguez cited several reasons for denying the application. He cited various local zoning codes along with state regulations and ultimately told members of the two commissions that city staff believes there are two options available: 1) denying the conditional use permit on the basis that it does not meet with any of the goals, objectives or policies within the jointly approved comprehensive plan for the Joint Jurisdictional Zoning Area (JJZA) shared by the city or county, or 2) the commission could table the item until the comprehensive plan is amended to show this use within the future land use map.

This would be a lengthy process that could take several months to accomplish, Dominguez wrote in a public memo to the city planning commission before the meeting. He noted in his memo that the process involves public meetings, joint planning commission meetings and also joint meetings between the Clay County Commission and the Vermillion City Council.

He noted that amendments to the current comprehensive plan could also be referred to a public vote.

Aden brought a different interpretation of zoning rules in the JJZA before the two commissions Monday night.

The retail facility that Nutrien Ag Solutions hopes to construct east of Vermillion would contain four structures: a 29,900 square foot dry fertilizer building, a 26,814 square foot ag product warehouse building, a 2,880 square foot office building, and a 1 million gallon bulk liquid fertilizer tank.

“Besides state statutes, the city has three official documents that guide the city through the decision making process in the JJZA. These documents are the Vermillion 2000-2020 Comprehensive Plan or the City of Vermillion/Clay County Joint Comprehensive Plan, the Joint Zoning Regulations for Clay County and the City of Vermillion, and the City’s 2035 Comprehensive Plan,” Dominguez said.

He added that the state does not have a particular section of statutes dealing solely with the JJZA.

“It does have sections for municipalities and counties. The sections for the municipalities and the counties talk about conditional uses, Dominguez said. “On both of the statutes the state requires that the approving body consider ‘the stated criteria, the objectives of the comprehensive plan, and the purpose of the zoning ordinance and its relevant zoning districts when making a decision to approve or disapprove a conditional use request.’ The items that the statute references are found in the JJZA zoning regulations and in the Joint comprehensive plan.”

He noted that the JJZA zoning regulations were approved by the Vermillion City Council and the Clay County Commission on Jan. 10, 2012.

“This document sets all of the uses that can be considered within the JJZA. In addition to that, it also sets the process that the city and the county must follow… when making the determination of conditional uses,” Dominguez said.

In a memo included with Monday’s meeting agenda, he noted that those uses are found in zoning districts. These districts vary from residential districts, agricultural districts, commercial districts and industrial districts. The proposed use by Nutrien Ag Solutions is considered an agribusiness and is located within the A-1 Agricultural District.

He added that Chapter 16 of the JJZA zoning regulations lays out the process that needs to be followed when considering conditional uses. Similar to the city’s zoning ordinance, the JJZA zoning regulations also have a few criteria that need to be considered by the commissions when making a determination on conditional uses. However, the commissions would still have to consider all of the items mentioned in the statutes (the criteria in the ordinances, the comprehensive plan, and the purpose of the zoning ordinance).

“Prior to discussing the criteria in the JJZA zoning regulations, the comprehensive plan for the JJZA should be discussed,” Dominguez said. “This document was adopted at a joint meeting between the Vermillion City Council and the Clay County Commission on October 20, 2011.”

He would refer to this decision later on during the meeting and the discussion that followed would ultimately lead the city planning commission to vote to table the conditional use permit application.

“Amongst other things, the document addresses how the city would grow into adjacent areas,” Dominguez said. The document includes a future land use map, a growth area analysis, planning policy framework and plan implementation.

He pointed out several items in that comprehensive plan that needed to be considered by members of the two commissions:

• The Future Land Use Map shows the area where the proposed use would be located as commercial or residential (pg. 12 of the JJZA plan)

• New development should be focused within existing City limits (pg. 24, goal 1, of the JJZA plan)

• Preserve the function and character of the rural area (pg. 26, goal 2 of the JJZA plan)

• Utilize the JJZA to allow development only when the city can annex (pg. 26, goal 2, objective 2, policy 1 of the JJZA plan)

• The JJZA is intended to promote orderly outward growth of the City and minimize conflicts between urban and rural uses (pg. 29 of the JJZA plan)

Additionally, the plan in page 23 explicitly says that “rezoning requests (and other development approvals) for land uses not consistent with the Future Land Use Map (map 4), except for previously established and approved land uses, should not be considered until the Comprehensive Plan has been amended, as necessary, to provide for such land uses.”

As mentioned previously, the JJZA zoning ordinance has four criteria that the commissions needs to consider prior to reaching a decision. These are:

Criteria 1. The impact of the proposed use on adjacent properties shall be a major consideration. The proposed use should be generally compatible with adjacent properties and other properties in the district.

Dominguez said city staff observed that directly adjacent to the proposed use the area is dedicated to agricultural uses (crops). However, currently in the general vicinity there are commercial, residential and agricultural uses.

“The proposed use might be considered compatible with some of the present adjacent properties,” he said. “This area is intended to be zoned commercial or residential. The proposed use will not be compatible with the future uses for the area.”

Criteria 2. Measures shall be taken to ensure that the proposed use does not alter the general character of the area or neighborhood.

Criteria 3. The effects of noise, odor, traffic, air and water pollution, and other negative factors shall be eliminated or controlled through the use of screening, setbacks, orientation or other measures.

Criteria 4. The proposed use shall not adversely affect the public.

Dominguez said city staff observed that the proposed use has a high probability of adversely affecting the public in the area and in the county. The project will increase vehicle and truck traffic on a gravel road that is closed part of the year due to poor road conditions.

That gravel road is 466th Avenue. He said the proposed retail location will increase the amount of storm runoff in an area with poor drainage, a high water table and where the natural grade splits north and south. It also may negatively impact the entrance to the community by placing an industrial use where a commercial node could be found.

City staff did speak with a neighbor that lives adjacent to the proposed use. The owner had concerns about the possible negative impacts of the proposed use.

Dominguez said the planning commissions need to consider the city’s own 2035 Comprehensive Plan. This plan was adopted by the Vermillion City Council on Sept. 5, 2017. Similarly, to the JJZA comprehensive plan, the city’s plan has a Future Land Use map that shows this area for either commercial or residential uses.

“The city’s plan also states that land uses not consistent with the Land Use map should not be considered until the city’s plan is amended to provide for such uses. The city’s plan also has goals, objectives and policies that should be considered by the commissions when making a decision on this item. Those goals and policies include:

• Focus new development within city limits (pg. 67 of the city’s plan)

• Direct new growth into designated growth areas (pg. 68 of the city’s plan)

• Preserve the surrounding rural areas (pg. 69 of the city’s plan)

• Enhance the visual quality of the City by separating industrial and residential uses

(pg. 71 of the city’s plan)

• Encourage industrial uses in the city (pg. 71 of the city’s plan)

As part of the conversation it should be noted that agribusinesses are also considered conditional uses within the City’s zoning code. However, agribusiness use is only allowed as a conditional use in industrial districts.

Another point that can be discussed is the County’s 2001-2021 Comprehensive Plans. The City’s Commission is not required to enforce, and does not need to follow, the plan. However, the argument can be made that the County’s comprehensive plan would like development to occur within urban centers, or along highway corridors, and not within rural areas of the county. The following items may support this argument:

• allow municipalities to plan for expansion

• discourage leap frog development

• require that new development is compatible with adjacent land

• prevent scattered and haphazard development patterns

• limit future urban and rural conflicts

• majority of commercial and industrial development to be within cities or along highway corridors

Dominguez said the commissions also need to consider the city’s 2035 Comprehensive Plan and the JJZA 2000-2020 Comprehensive Plan. They have several sections that address development within the JJZA. The proposed use does not meet any of the standards in either of the two approved plans, he said.

Dominguez added that the night’s conversation must note that agribusinesses are also considered conditional uses within the city’s zoning code. However, agribusiness use is only allowed as a conditional use in industrial districts.

Another point that can be discussed, he said, is the county’s 2001-2021 comprehensive plans. The city’s council is not required to enforce, and does not need to follow, the plan. However, the argument can be made that the county’s comprehensive plan would like development to occur within urban centers, or along highway corridors, and not within rural areas of the county, he said. The following items may support this argument:

• allow municipalities to plan for expansion

• discourage leap frog development

• require that new development is compatible with adjacent land

• prevent scattered and haphazard development patterns

• limit future urban and rural conflicts

• Majority of commercial and industrial development to be within cities or along highway corridors

Aden’s Advice

“I’m here to recommend approval of this conditional use,” Clay County Zoning Administrator Cindy Aden told the two planning commissions. She noted that the city’s comprehensive plan is not applicable to Monday’s proceedings “because the county has not signed off on that, so the only comprehensive plan that’s applicable to these proceedings is the one that the city and the county agreed to, which is the city’s comprehensive plan of 2000 to 2020.

“As we’re looking at comprehensive plans, the county’s comprehensive plans states that we want to locate businesses – industrial, commercial, those kinds of things – along major highway corridors, 19 and 50, and in that way hopefully draw business into the community and again keep them out of the agricultural areas where there is actual farming,” she said.

Nutrien Ag Solution’s plan to locate along Highway 50 a couple miles east of Vermillion would be the “addition of an agri-business providing support to farmers in the area still near the city of Vermillion providing economic development to the area on the Highway 50 corridor as it says in our comprehensive plan,” Aden said.

She noted that Nutrien Ag Solutions has operated a smaller distribution center than the one proposed in Vermillion on University Road “just at the top of the hill before you go down the bluff there that was permitted by city and county staff without a conditional use several years ago.

“It’s a distribution center for seed, pesticides – the kinds of things that farmers are going to need,” Aden said, “so you have to look at that, as well. This has already been permitted, already been approved in the joint jurisdiction area at one time.”

City staff did not mention in their documents, she said, the zoning regulations that the city and the county have promulgated together.

“We have a lot of information and a lot of rules in the zoning regulations that we should be considering. Comprehensive plans are guidelines; they are general overviews that help us frame how we use our zoning regulations,” Aden said. “I disagree with city staff in saying that you have to look at the comprehensive plan.

“What I say is you have to look at your zoning regulations and see how this fits those zoning regulations,” she said.

Aden described various steps that have been taken that follow the zoning regulations, including the development of a site plan that shows methods for drainage in the area.

“For the conditional use criteria you have to look at the impact of the proposed use on the adjacent properties,” she said. “The adjacent properties to the south and the east are zoned A-1 Agriculture … the adjacent property to the west is actually zoned commercial. The property directly north across Highway 50 is also zoned Agriculture. The proposed use is agri-business which is allowed by conditional use in the A-1 Agriculture zones.

“The proposed use should provide a benefit to the adjacent properties by providing agricultural products in a nearby location to those people who out doing their farming,” Aden said, “and we still have a buffer between the residences.”

She noted that residences that are located south of the proposed site are zoned A-1 Agricultural.

“Everything in that district is zoned A-1,” Aden said.

She added that considering whether to grant the conditional use, the planning commissions need to consider the effects of noise, odor, air and water pollution and other negative factors. Nutrien, in a letter to Aden and Dominguez, listed steps it planned to take to eliminate or greatly lessen those effects, including the use of low-dust aggregates, no odor generation because all ag chemicals and fertilizers will be handled indoors and no noise beyond truck traffic during normal business hours.

Aden said Nutrien Ag has been working with Fairview Township about a plan for road maintenance.

“That is important even though it is not part of the zoning regulations,” she said. “It’s not something that this body oversees. It is important for them to work with Fairview Township.”

It was learned from a company representative later in the meeting that Nutrien Ag has proposed to pave 466th Avenue but may likely put a new gravel surface on the road because township officials have indicated they don’t have the equipment to maintain a paved road.

“Working through the zoning regulations that we have all agreed that we are going to abide by, I propose that we approve this development,” Aden said. “If you want to disapprove the development than I need to know what section of the regulation that you use to deny the permit.

“Denying it based on the comprehensive plan, I do not think, is allowed,” she said. “I think it must be denied based on a regulation.”

After hearing public comments both in favor and opposed to the granting of the conditional use permit, and receiving additional information from two Nutrien Ag representatives, the county planning commission voted unanimously to issue the conditional use permit.

“The city went through point by point the joint jurisdictional regulations, and Nutrien meets every single requirement set forth by the regulations,” said Jay Bottolfson, the chairman of the county planning commission shortly before its vote to approve the permit. “In regards to the joint jurisdictional comprehensive plan that is in effect presently … it is a plan.”

He noted that the company’s existing facility, while smaller, sells basically the same products that would be offered at the new, proposed location.

“This is a good business to have. It’s in the ag district and it’s an ag business … if we’re allowing houses in the ag district and possibly not an ag business, that’s going to be tough,” said Travis Mockler, the Clay County Commission’s representative on the county planning board before its vote.

Dominguez addressed the two commissions’ members following the vote.

“Everything that Cindy talked about is actually within Clay County’s comprehensive plan, which has nothing to do with what we’re talking about,” he said. “We actually need to be talking about the joint comprehensive plan, the one that was actually approved by the county and by the city.”

Dominguez had a copy of the resolution made by the Clay County Commission at its meeting of Oct. 20, 2011 when it approved the Clay County/City of Vermillion Joint Comprehensive Plan. He also had a copy of the plan itself that includes a map of future land use in the time period of 2000 through 2020.

The map shows that the area where Nutrien Ag wants to locate has been designated on that future land use map as an area to be developed as commercial property.

“I get that this is a future land use map and we can’t read the future … but at the end of the day, this is the map that we have to use to plan ahead for whatever we do,” he said. “If we’re going to be changing the whole game right now and consider (what should go) in an industrial site – an agribusiness – which is the only place (property zoned industrial) in the city where this is allowed … this isn’t even allowed in the joint jurisdictional zoning area within a commercial zone.

Dominguez repeated one of the recommendations that he made earlier in the meeting.

“If we’re going to be doing this, we need to change the plan,” he said. “Cindy is correct in saying that the ordinance does not require the city to look at the comprehensive plan, but the state statute does. That actually governs everything. That’s what gives the city and the county the power to do all of this stuff.”

Dominguez said the issue is with the company or what their planning to do.

“I’m just saying that the location is not correct,” he said. If the company would be allowed to build there, the city and county could face court action from anyone opposing the location because the joint comprehensive plan wasn’t followed,” he said.

City Planning Commission member Ted Muenster said he’s supportive of agriculture but personally wasn’t sure if the proposed location for Nutrien Ag is the right place.’

“But even more important, our staff in the city and the administration tells us that we have to abide by the city comprehensive plan. For me, the best way to keep this alive is to table the matter until we can consider a change in the comprehensive plan,” he said. “That still doesn’t mean that that exact location is the best for me.”

Muenster made a motion to table any action that night on the conditional use permit and it was approved by the city planning commission.

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