Planning & Zoning - Regular Meeting

It started in 1 minute. Good evening and welcome to the July 5th, 2025 What?

August 5th. Uh, August 5th, 2025. Joint Brookings County and City of Brookings Planning and Commission meeting. This meeting is being recorded, televised, and viewable on Swift Channel 19, ITC channel 168 or the Brookings County YouTube channel. And I'll call this meeting to order on the county side. Uh, first item of on the agenda for us, approval of the joint planning commission meetings. Is there a motion? So move motion by Kyle Vanderwall. Second. Second. Second by Daryl Klein John. All in favor? Motion passes.

Good evening everyone. Uh we'll open the um city side of the planning commission. Is there a motion? Second. Second. All in favor? Hi. Did you do the minutes? Yeah, do the minutes, too. Um, is there a motion to approve the minutes from the June 3rd, 2025 meeting? Sorry. So moved. All in favor?

Motion passes. Moving on. Agenda items to be items to be added to the agenda by commission members or staff. Nothing. Nope. Invitation for citizens to schedule a time on the commission agenda for an item not listed. Got nothing. Disclosure of conflicts of interest, relationships to applicant or expporte communication. Seeing hear none. Approval of agenda. Is there a motion on the county side? Make motion. Motion by Jensen. Second. Second. Second by Troyan. All in favor?

Motion passes. Motion to approve the agenda on the city side. Second. All in favor? I. Motion passes. Thank you.

We will now convene as the joint county and city planning commission. The planning commission of the county of Brookings and the city of Brookings consists of both Brookings County Planning Commission and the city of Brookings Planning Commission members. The concurring vote of a simple majority of those joint planning commission board members present in voting is required for the recommendation to the Brookings County Commission and the Brookings County Council for the final decision of the resoning request. Agenda item 2025 JJRZ00003 Austream Investments LLC by Andrew Austream has made an application 2025 JJRZ00003 to the Brookings County Planning Commission for the property to be resoneed from joint jurisdiction business B3 heavy district to joint jurisdiction industrial I I1 light district. The property is described as the northeast 1/4 of the northeast 1/4 excluding lot H1 and that port lying east and north of lot H1 in section 14 township 109 north range 50W Merry Township located 21625471st Avenue Brooking South Dakota 57006. Is there a motion on the county side?

So move. Motion by Pollson. Is there a second? Second. Second by Kyle Vanderwall. Um, is there a motion on the city side?

Thank you. Richard, would you read staff report?

Yes. I'll um long as the I'll turn the staff report over to Ryan for the city side. as long as it meets the city requirements, the county has as far as a county development side, we have no objections to it. So, Ryan, I'll turn it over to you. So, from the city side, uh, Ostrime Investments LLC, uh, they purchased this property and reszoned it back in 2021, um, from egg to, uh, business B3 heavy business district, um, with the intentions of, uh, opening a contractor shop, developing a contractor shop down on the property for their excavation business. Uh the city recently updated some zoning ordinances to address um rock, concrete, asphalt crushing. Uh we defined it and we defined the districts that it would be allowable in. Uh on the city side, it would be allowed in an I1 and I2 district as well in egg districts. Um as we allow gravel mining operations in the egg district. In this particular case, um the Ostrime kind of got caught in a pickle there and that uh portion of their business is the concrete crushing and it is a sustainable um reuse of of uh spilled concrete. It it works really well in the construction industry for base course for roads as well as building sites. Um however, it is a conditional use in the I1 district. uh the applicant is simply trying to reszone the property to I1 and then pursue a conditional use so that he's in compliance with the zoning ordinance. And so the first step in the process is uh to seek the appropriate resoning to I1 so that he makes sure that he's compliant with the zoning ordinance um for the city of Brookings because it is within the joint jurisdiction area. Uh staff does support the resoning request

and uh we'd stand for any questions you may have. Thank you. There's the applicant here. Want to step forward and clearly state your name into the mic. Make sure the green lights on.

I'm I'm Andrew Ros with Austria Investments. I guess um Mike pretty much covered everything. We're not not trying to do anything different. We're not reinventing any wheel. We're just trying to stay compliant with the everchanging ordinances, I guess. So, uh, if you have any questions or whatever, I can answer. But is there any questions from the county side? Any questions? City,

you go back to your seat for a minute. Moving on, we'll move to the public hearing portion. Is there anybody in the audience that is for this? Seeing and hearing none, is there anybody in the audience that is opposed to this? Seeing hearing none, I'll now close the public hearing portion. Move back to the board for additional comments or questions. Any additional comments or questions on the county side?

Likewise, Mr. Chair, just one question. I think this is for staff. Um, there's a there's a note in the item here that the properties open wetland uh on the future land use. Is that just this was before we really got going with future land use amendments and this will just need to be cleaned up at some point? Um yeah, on our comprehensive plan it does identify this area as open space wetlands. It um it got reszoned kind of before we we started a lot of that process with updating the future land use map. uh it is already existing uh zoned property as a B3 um and so um we don't oppose it for that reason. Thank you.

Any other questions? Seeing none, Richard, would you call the vote on the county side? Yes. Yes. Kelly Vanderwal? Yes. Pollson? Yes. Clark, yes. Klein, John, hi Kyle Vanderwal. Hi. Starhog. Hi. Troyan, yes. Jensen, yes. And Ford, yes. Motion passes on the county side. Ryan, would you call the vote? Leur, yes. Spear, yes.

Hinrich, yes. Bronn, yes. Soom, yes. Akin, yes. Letty, yes. Motion passes. Thank you. Moving on in on the county side. Is your motion to adjurnn? So moved. Motion by Cander. Second. Second. Second by Jensen. All in favor? I adjourned on the county side. Likewise on the city side. So moved. Second. All in favor? I I meeting a journ.

I've got enough We'll get started in 30 seconds. Sometimes people

Dale, you can sit up front. Dale, you can sit on the board. I will, but then Luke will come in and screw everything up. The longer I talk, the less he gets to. Good evening and welcome to the August 5th, 2025 Brookings County Planning and Zoning Commission meeting. This meeting is being recorded, televised, and viewable on Swiftell channel 19, ITC channel 168 or the Brookings County YouTube channel. I now call this meeting to order.

Approval of minutes. Is there a motion? So moved. Troyan. Motion by Troyan. Second. Second. Second by Jensen. All in favor? I. Motion passes. Items to be added to the agenda by commission members or staff. Just our regular staff report. Okay. Invitation for citizens to schedule a time on the commission agenda for an item not listed. Seeing hearing none, disclosure of conflicts of interest, relationships to the applicant or exparte communication. Seeing none, approval of agenda. Is there a motion? So move. Motion by Jensen. Second.

Second. Second by Kelly Vanderol. All in favor? I I

Motion passes. We will now convene as the Brookings County Board of Adjustment. No, wrong one. I knew I was going to do that. We'll now convene as the Brookings County Planning and Zoning Commission. The Brookings County Planning Commission is a nine-member commission whose function is to recommend approval or disapproval of land use plans, zoning ordinances, subdivision plants, and amendments thereof to the Brookings County Commission. The commission makes its recommended recommendation based upon the adopted comprehensive plan for the physical development of the unincorporated areas of Brookings County. As a matter of policy, all motions are made in a positive. After a motion has been moved, it is seconded and is open for debate. Those supporting the motion shall in turn give their reasons. Those opposing the motion shall then offer their reasons. After everyone has been given a chance to be heard, the commission shall recommend approval or disapproval based on the testimony and information presented. A simple majority vote of a quorum of members of the planning and zoning board in attendance is required to forward a recommendation. Agenda item 2025, plat 017, plat of block 11, Berkeland edition, located in portion of government lot 2 in the southeast 1/4 of section 29, township 109, range 50W of fifth primary in Brookings County, South Dakota. Is there a motion?

So move. Motion by Kyle Vanderall. Second. Who had that? Pollson.

Second by Pollson. Richard, would you read staff report? Yes. 2025 plat 017 Mark Berkeland has submitted a plat for block 11 of Brooklyn edition on the west side of Lake Campbell located in the Lake Park zoning district. Block 11 is 1.4 acres exceeding the 20,000 square foot requirement and meets the non-lfront setback requirements of 25 ft on the front yard, 25 ft on the rear yard, and 8 ft sideyard. The preliminary plat was approved on December 3rd, 2024 and meets the requirements of the Brookkins County subdivision ordinance. the Lake Park zoning ordinance and the 2016 comprehensive plan uninorporate use on the for development lakes on page 11. This is the plat block 11 right down here on the road. There's the beacon map with the plat overlay on it at 468th and 219th Street and otherwise known as Lakeshore Drive going to the east. This is the beacon map. This is where the plat proposed plat would be located. That's all that I have and the applicant is here this evening.

Do you want to come forward and say anything or not? It tells me to ask you come forward and state your name.

I'm Mark Barkland. Then I'm want to plat that get the final plat on block. Do you got anything to add to Richard's report? Any questions for members of the commission? You can go back to your chair.

Thank you. move to the public hearing portion. Is anybody in the audience that is for this? Excuse me. Seeing hearing none, is there anybody in audience that is opposed to this? Seeing hearing none, I'll now close the public hearing portion. Is there any additional comments or questions from members of the board? I'm seeing hearing none. Richard, would you call the vote? Pollson, I. Clark. Hi Klein. John. Hi Kyle Vanderwal. Hi Dor. Dale Stohog. Hi Neil Troyan. I

Jensen. Yes. Kelly Vanderwal. Hi. And Ford. I. Motion passes. Good to go. Y. Moving on, agenda item 2025, plat 018, plat of fuller edition and government lot 2, section 15, township 109 north, range 407W of the fifth primary in Brookings, South Dakota. Is there a motion? So move Pollson. Motion by Pollson. Second. Second. Second by Jensen. Richard, would you read the staff report?

Yes. 2025 plat 08. Soci Enterprises by Rick Brownley have submitted a plat of the Fuller edition in government lot two of section 15 township 109 north range 47 west. It's a 16 and 7/10 acre parcel. It's being split off from the 38.79 acres that they own. Uh the 16.07 acres was a former gravel mining area with the balance of the property being farmland. on the property borders the South Dakota Minnesota state line and the dejoining property owner in Minnesota as a purchase agreement on the proposed plat and there is an in ingress and egress access easement on the noted plat that is recorded document number 202500541 in the Lincoln County Minnesota recorders office that will provide access to the property and does meet the platting requirements of the 2016 comprehensive plan on page 24 for the agricultural land use. This is the plat. This is a 16 acres right here. This is a South Dakota Minnesota line. Uh this is the access easement going in on the Minnesota property that is recorded in the Minnesota or Lincoln Minnesota recorder office for access to track one. There, here's the beacon map with track one of the plat laid on it. Basically the mined out area there is what he is purchasing. Here's the beacon map showing the long I believe it's 48 79 acres. So um there's the balance. There's the plat that is being platted off and that's all that I have and the applicant is not here this evening.

Thank you. If the applicant is here we'll move to the public hearing portion. Is anybody in the audiences for this? Seeing hearing none. Is there anybody in the audience that is opposed to this? Seeing hearing none, I'll close the public hearing portion. Any additional comments or questions from members of the board? Seeing none, Richard, would you call the vote? Clark, I. Klein, John, I. Kyle Vanderwal, I. Troyan, I Jensen, yes. Vander Kelly Vanderwal I Alson I and Ford I motion passes.

Moving on. Agenda item 2025 plat 019 plat of block one of Roland Hutterite Brethren Cemetery edition in the southeast 1/4 of section 9 township 110 north range 48W of the fifth primary in Brookings South Dakota. Is there a motion? So move. Motion by Kyle Vanderwal. Second. Second second. Cody Clark applicant is not here. So we'll move to the public hearing portion. Is anybody in the audience is opposed to this? Would you like me to give my staff report? Oh, hey, I should do that, huh?

2025 Plaid 019 Roland Colony by Lawrence Whip is platting off an 8,100 square foot area, which is.18 of an acre that is being used as a cemetery. The original footage description of the cemetery for the properties was deeded off in 1991 and this past year it was determined that the footage description that is on the deed is not the actual location of the cemetery. So the plat reflects the correct location of where the cemetery is located at this time and the plat meets requirements of the comprehensive plan for the on page 24 for the land use. Here's the plat showing the cemetery there. The blue square is where the legal description that was recorded in 1991 was located. This is where the actual cemetery is located in the red square with that being the plat of block one. So to get things squared away, they're um replatting this and they'll do some other deed work to get this cemetery back to the colony and then the colony back to the cemetery with the new location and legal description. So that'll be on their their end to take that. But yeah, this is right now this is the beacon map showing where that was on the deed, the yellow square. And this is where the actual cemetery is located right here. And that's all that I have. and the applicant is not here this evening.

Thank you. Since the applicant is here, we'll now move the public hearing portion. There's anybody audiences for this? Seeing hearing none, is there anybody in the audience opposed to this? Seeing hearing none, we'll now close the public hearing portion. Is there any additional comments or questions for members of the board? Seeing hearing none, Richard? Klein John I. Kyle Vanderwal I. Storehog. Hi Troyan. Hi Jensen. Yes Kelly Vanderwal. Hi Pollson. Hi Clark. Hi. And for I.

Motion passes. Moving on. Agenda item number nine. Board training by Luke Mohler from First District Association of Local Governments.

Hi everyone. I am going to plug my computer in and try to run from here. That'll be a lot easier so I can bounce around on stuff. We are basically going to pick up where we left off uh doing training. Was it July or June? I don't recall. It must fly.

Um, wonderful. Now, we're there already. And I will get flying here. I'm It's not my plan to go over uh what we already did, but we just will uh pick up where I left off the last time. So, I'll spare you the introduction, spare you the what we do because you heard it before. Uh, by all means, you want to argue with me or tell me that uh I just don't get it because I sit here and I tell you and you guys sit there and live the life, by all means, go ahead and uh do so. Uh, we'll have fun and discuss it. Uh, honestly, it helps to have some of those stories. But I'm going to go through here picking up somebody trying to get a building permit and working our way through what we talked about was a discretion pyramid. I know I showed probably about the first three or four slides last time, but I went uh full-on auctioneer mode as we were finishing things up. So, I want to get through this a little bit. We start with the concept of getting a building permit. This is essentially a I'm going to say a poor um display of a diagram, but nonetheless, these are the decision makingaking tree of what goes on through your zoning officer when issuing a building permit. Okay, these are the questions that need to be asked. And in some of those cases, obviously, they reach points where it's a no. And when it's a no and they're in the zoning officer standpoint, then there's the other points. Review the use. Uh is it something that can be reszoned if it's a no or is it is it a listed use in the district they're in? No. Well, can it be reszoned? That's a step person can can ask you guys if you're interested in amending the zoning ordinance and you can see that process and going down. If you go into uh if it is an allowable use, well, is it conditional use or permitted use? If it's going to meet one

of those couple of them, uh does it meet the setbacks and so on. You can somewhat see that decision tree. But the bottom line is it is a lot of a lot of decisions and pitfalls that can come in this the planning pyramid that I showed in previous times. If I work from step one is a building permit or all the way to the bottom. Basically, the bottom of this pyramid has more discretion. It's more legislative actions. As I get all the way to the top, it's what we call ministerial. Ministerial is a thing that simply put one remind you not an attorney. There's a guy who does this a lot. Um building permit is a is largely ministerial acts. However, there are um some interpretations that the zoning officer has to make. A ministerial act would be just a thing that brings about an application. Basically, in order someone makes an application and meets all the requirements, I'm signing the application. That's a ministerial act for for lack of a better phrase. There are interpretations that have to be made whether or not the thing they're building meets the definition of offense. Do they need a permit for this thing? That sort of thing. Working your way down though, variances have less discretion. It's more judicial. You're boxed into a corner as a board of adjustment, but you are the board of adjustment. You're judge and jury. conditional use, you've got more discretion because you're effectively assigning conditions that are on a case-bycase basis, but largely that is identified as a thing that can be used. Moving on, as far as plats and subdivisions, you have lived this life largely. So, you're aware of the fact that you got more discretion when it comes to a plat. Hey, why not move the lot line over here? Is this the right way, right place for a road? Does it meet what our land use plan says? Zoning ordinance. Um, generally we would want uh from a standpoint, again, it's

discretionary. You're setting it up to go the best way to to make it there. I really went into detail on the building permit, but I talked about this because we asked a question last time about issuing variances. Talked about them at the lake. But I do want to get into this a little bit about what a variance is because there's some key components here that really again to hammer home the point that if you find yourself issuing a lot of variances, you need to look at whether or not the rule is right. Are we making criminals out of people that are following the law or not? Or what is this rule really based on? One of the things that like we said, Board of Adjustment has the ability to hear authorized variance from the terms of the ordinance owing to special conditions. A literal enforcement creates an unnecessary hardship. Okay. Most counties have something similar to the language here that says that uh the board of adjustment shall have the power where by reason of exception, narrowness, shallowess or shape. Uh creates exceptional topographic or exceptional topographic conditions or other extraordinary and exceptional situation or condition. Allows a variance without substantially impairing the intent or purpose of the ordinance. meaning that there is something so unique on this property that we didn't think about it when we wrote the rules. There's a cliff, there's a uh oftentimes flood plane isn't a bad example. That's a decent example. if there's a flood plane or river changed its course or something like that or the property line um all of my setback all of my properties over on this side of the road because you know they lobbed a township road in between there. Those are odd things. Pretty sure I told this story the last time, so I'm

not going to get terribly far into it, but basically what I said before, if it would be easy in many cases to take that easy way out, right? To just say it's not a big deal. It's three feet. This is the 15th time we've issued this variance to let them be three feet closer to a property line, whether it's this person, that person, the next one, so on. Well, let's just issue it and be done. What you really ought to do is go, you know what, this is the 15th time. This rule clearly is not the rule. The norm is to be three feet closer. Let's amend the rule. Technically, you should hit timeout and do that. What I do see places do is they do a year-end review and take a look at, well, here are the variances we issued this year, and that's consistent with the year before, so maybe we ought to look at amending the ordinance to address that. Uh the example that I used of course was the one way going the wrong way and then just changing the rule to go two-way traffic. That fixes the problem. Same is true. Look at it. Is there an easy fix? Then you can figure out in that discussion. Oftentimes you'll lead to oh that's why we had that rule. It was this thing or that reason why we have this rule. Or you'll go I really don't know why we had that rule to begin with. Let's decrease a setback. Let's make it so that you can have a greenhouse in the rural Lake Park district, whatever it is. I don't know why that rule was there. So, it's one of the things that comes up, but here's variances in plain English. Okay, someone's asking for a variance. They're asking to break the law. It's just that they've got the common courtesy to ask permission first. That's really the only difference. So, it' be it's it's similar to you calling the police officer on Thursday, telling them you're you're probably going to wake up a little bit late and you want

to drive really fast on the highway tomorrow. Um, there may be excuses and where you can do that. Um, better be an exploive deleted good reason though. Better be a damn good reason uh that's going on there. And there are those reasons out there. But the burden is on the applicant to explain why they should be able to break the law. The courts tell us that because it costs more is not one of those reasons. And then as I said, periodically review those variances. So everybody has about the same four to six steps questions that you're going to follow in there. And I just highlighted the key words in there because they they come up often. But special conditions and circumstances are peculiar and are not applicable to other properties, buildings, whatever in the same district. Next one, the literal interpretation deprive rights other properties have in the same district under the terms of the ordinance. Meaning that it keeps me from that ability. That's one that oftent times is cited as a reason why they should be able to well my neighbors have this. Well, they get a bigger lot. they got more room, that sort of thing. Or it was used I just want to see, do I have it? Yeah, we'll get there. Or uh it was a non-conforming thing. It was built before we had ordinances. Well, just so happens that that's written in case law and that no permitted or non-conforming use shall be grounds for the issuance of a variance. So just because someone else had it before the zoning ordinance was there is not grounds to issue a variance. The other one that's out there is uh they don't result from actions of the applicant or the property owners previous to them because again we're dealing with running with the land. It doesn't the variance doesn't go away when Tim moves off of his property. It carries forward with the next

property owner. So it stays with the land. It will not confer special privilege uh that is denied to other properties in the same district by doing so. you're not giving them a benefit you wouldn't give to everyone else or that they don't buy right get. Uh it's the minimum and it needs to be in harmony, not injurious and otherwise detrimental to the public welfare. So I think what's really important to remember when you're talking about variances though is that if I hit one of these that's cute. I got to hit all six of them. These are not or statements up here. These are and statements. It's this and this and this but not this. It's this all the way through. So they have to meet all of these. So there are many times like I said that they're asking for someone's asking for a variance for say again we'll just go back to a a 10- foot variance on the front yard setback. You look up and down the road, there's three other places that already have that set back on there. They also have the same size garage that this person is asking. But all of those were built before we had zoning. Well, we can't use the nonconformity as the reason. What else do we have out there? Well, is it super duper is it more narrow than everyone else's lot? No, it's the same size as everyone else's lot, so we can't use that. Well, that pretty well should shut it down right there because it's the same size as everyone else's lot at that point. And so when writing the ordinance, it is assumed that you've took that into account. If you didn't take that into account, then okay, well, if there's a lot that's this size, maybe the setback should be less. Okay, there you got your exception and you can go on. Those are things I want you to think about as you're going

through. Now, this is the rahrrah speech. deny more variances, but you are going to see cases come in where you've issued them before. You do have to avoid being arbitrary, but in the same breath, you do have the ability to be smarter today than you were yesterday. That comes from a Supreme Court justice. I want to talk about court cases that got us to where we are on variances. Okay? And I'm going to bounce to a different presentation because it actually um did a little bit better job in explaining it here. Um should be about the same slide though. Okay, let's um open it. Really? There we go. All right. So, there are a lot there's a lot of case law invariances. And without getting too much into all of the cases and giving you story time, here's basically what I want you to keep in mind. Okay? Once we've gone to court on these, these are the ones that get referenced the most, at least. There's a couple of oldies but goodies. It's Madison versus Clark in 1980. They established a three-step test at the Supreme Court. Will granting the variance be contrary to the public interest? Did the applicant Did the applicant show that special conditions exist under which a literal enforcement would cause unnecessary hardship? See how they combined about three of those points, maybe even four in that. And so they combined a bunch of them into two. And then three, will the spirit of the ordinance be observed and substantial justice being done? Those three were clung to in that case to say that it's the job of the applicant to prove these things at the meeting. It's not the job of staff. Staff in the same breath is going through saying here's what guy

wants to do. Here's what the guy wants to do. Here's what the ordinance says about it. Here's your history on these things. Good luck board. Um that's generally what we're doing in that case. Hines was another city case that carried forward those steps one and two. Um it basically just reiterated that one and two are really important, but it wasn't as heavy on that third one that was above there. Probably the most important thing to keep in mind though is that that also reiterates the point of a term that I'm going to butcher because I'm from South Dakota and I don't speak Latin, but it's a rid of certiary. That is the standard under which variances board of adjustment items are reviewed. And I'm not just going to tell you a term. I'm going to tell you what it means. The ridicertiary basically means that you're being reviewed as to whether or not you followed your rules. When the judge re when the judge hears this, hears a case that's appealed on a variance or a conditional use or even an appeal, the judge is reviewing whether you followed your rules, not whether or not you made the right decision. So, I want you to think about that. They're not rehearing the case. they're hearing whether or not that however many page zoning ordinance you have was followed and then oh by the way state law too. So they're they're reviewing whether or not you followed all of that. So that's why it's ultra important when you're issuing variances and then we're going to talk about conditional uses that you follow this the zoning ordinance in doing so because fast forward all the way 21 years there were variance cases that went in But and a lot of times they wind up by lakes. Go

figure. But um there were variance cases that went through, but they they kind of reiterated the same things, but we had a a flurry of them here in 2025 early this year that were appeal after appeal. And rather than get into I've got all sorts of details on these in the other slides, but I think it's just worth noting in this one in Makook County that was right ahead of the one for Lake County, the Supreme Court determined that a lower court uh circuit court should review the findings of fact to determine whether step two was followed. meaning did the applicant show special conditions exist under literal enforcement before what the argument was was that no you're rehearing the case if you look at my findings and what that case did is said no we have to look at your findings to make sure that those five things that I read previously about owing to special conditions doing that the things that are in your ordinance as well as the decisions of previous case that you actually went through the due diligence and you made findings on those things. Okay? So that's what that case is. You do that your standard practice. You guys do that. Okay. But not only do you have to reiterate and find that they met those Dunham versus Lake County, which was shortly thereafter, said that not only do you have to recite the fact that they that you did that, you also have to site things that prove that as well within the application. And again, you guys do a pretty good job of that as well. What's important is that as you're going through and reviewing

these, like as Richard's reading the findings of fact and you're concurring with them or whatever, make sure you've got something that's within there that proves that yes, they did um demonstrate that there are special conditions. Here's a couple special conditions on the property that we don't see every day. Um and it does create an unnecessary hardship. And then also that granting it granting the variance won't be contrary to the public interest which is one of your standard findings because what happened in in Lake County was they had the they had kind of the standard findings but they never they didn't go any farther. They just had them and said, "Yep, we hereby find that they met section one, section two, section three, and they recited them. Here you go. Here's your findings." Well, ultimately what happened was they rehear it and then they put in how did they meet him was one of those well we know what the answer was but we didn't write them on the paper. You need to put them down as far as how they did that. And so I just want you to understand that um that process of putting those findings together is ultra important the reasons you issued that. So the takeaways and best managements on variances are that decisions need to be based upon the application of the regulations. Very rigid. Okay. Must prove an unreasonable hardship to receive variance standards for variances. I'm I'm reading these out loud to you. But equal treatment is essential. So it's don't be arbitrary. If it's good for this one, it's good for that one. So the more findings or the more specifics about this case, the better. Otherwise, be ready to be amending your ordinance. Um, and then there's couple other points. Okay. Uh, the bottom ones.

Only issue variances for rules your ordinance defines as varianceable. What does that mean? Not everything is varianceable. You can't variance every single thing in your ordinance, specifically uses. You cannot v you can't have a variance to allow a use that's not allowed in a zoning district. An argument an argument has been made and it's a very good one that if we have specific conditions into a section of say a conditional use permit and we have specific conditions that say that a campground has to have at least this many spaces or vice versa. A campground can't have more than this many spaces. That's the cap. It's done. If it has more than that, it's a use variance because they're asking to do something outside the scope of what we decided. If we want to allow them to do that, we got to amend the ordinance. We can't do it on the fly at a hearing. There's an argument been made. It hasn't been taken to court, but I think it's a good one. And so, some of those into there. That's why when you adopted the update to the zoning ordinance, I'm going to use exam the example of I'll use the example of feed lots because that one sticks out in my mind. You wrote in exemptions that you have to be this far from a house unless the neighbor signs off. Okay, neighbor signs off that rule. We don't have to account for that rule for that specific house. You gota be this far from a road unless the road authority is cool with it. You've got to be this far from um a well unless it's your own well. Things like that. Okay. So, you write those exceptions into there. And sometimes when you run up against one you didn't think of, they got to hit pause and go back and you ask whether or not that works for

the whole county. So, are there any questions? Oh um and then the other thing is used to do variances to sidewall height things like that. Don't that's that's not a variancable thing. Um it's just a it's just either that's the max or it's not. There's no hardship. There's no hardship that's going to say that I have a I need to make a wall that size. You used to list as a conditional use which was better. In fact, I think you still do. Um, but a variance itself, no. Uh, we need to write exceptions into there if that's what we're going to do. Going back, any questions on variances you want to talk about? Or do you want to talk about war stories or horror stories? None so far. Okay, let's talk about an appeal. Um, and I really only want to get through appeals and conditional uses for the most part here tonight. So, uh, just for what it's worth, appeals you haven't seen many of, but an appeal is the way that the zoning ordinance is set up. All the questions come to the zoning officer. Okay? Every question of interpretation comes to the zoning officer. So, an appeal is where it's alleged that that zoning officer made a mistake. That that zoning officer doesn't know their ordinance. That your zoning officer who's been doing this for 10 years, 10 years, but has closer to 25 years of experience, knows less than the person who made the application. 25, 50, however long it's been, Richard. Um, so they're making they're appealing to you as the board. Hey, um, they don't know what's going on. I've got this fun little cartoon strip that I think I'm

going to do a better job of later. But basically, um, they ask the administrative official a question. They disagree with that answer. Within 21 days, they come in and they file saying, "Nope, you're wrong. I'm going to appeal you to the board of adjustment." They have to be an agrieved party. Uh, and there is a definition of an agrieved party. I'm not going to get into it other than, uh, it's defined in state law. Um, they have to be qualifying. One of the things that we were running into there for a while on agrieved parties where we were having, um, special interest groups or clubs coming in and filing, they had no standing. They weren't a neighbor or something like that. So, there's that. Um, when they file that appeal though, it's not just I think you're wrong. defying an appeal that you interpreted section 4.0304 of your zoning ordinance wrong. And here is my supporting information. Not hey board, I really really kind of want to have a concert venue in the Lake Park district and Richard won't let me. No, that's not it. Tell me the section of the ordinance I said was wrong. That's what that winds up having to be. the process on administrative appeals, you determine whether the question is ministerial. One of those good examples was we had this case in uh Grant County for years. That's where this question of ministerial came up was a zoning officer made a change to the building permit application because she needed different information to answer questions or figure out if the zoning ordinance was being followed. and that got appealed saying that I'm I really don't know why it got appealed. Bottom line is it got appealed. I just know that I got deposed on it and it never made any sense to me.

But basically at that time they were arguing that only the county commissioners could change a application which really made no sense. But it was a ministerial act to bring about an application. It was the way for her to figure out whether or not they were meeting this one rule that this question always came up. So is a question of a ministerial nature to bring forth an application. Did they have discret or did they have discretion? Once they've determined that that's usually an attorney attorney question, then we set the meeting date. Publish notice at least 10 days prior. A hearing is held. You've had these before, may only a couple, but the way that that works is you hear testimony from the appellant and then testimony from oftentimes it's the county's attorney, sometimes it's staff, but really the staff has just put together the report saying here's what I told them, here's the rules, pretty black and white. And then staff is there to answer questions from you. there not a lot of deliberating there. Um, this does require a hearing, but it is it's been explained to me from attorneys that represent through the public assurance alliance that this is a this is a hearing in the same way that magistrate court is a hearing. Doesn't mean that everybody who's got something to say about, you know, why Luke should have gotten that ticket for speeding on Thursday. It doesn't mean everybody gets to get up and talk about it. I'm arguing my case that Richard was wrong. Richard is there to answer any questions on that. And if feels like it's going out there, state your case, go on. And so it's not all comers, you know, it's somebody filing on that behalf. The board then decides whether the administrative official or the appellant is right. One of the things that's

unique is that you as the board obviously you know this in your bylaws you always make the the motion in the affirmative right before you take anything up. So in this case your motion is to approve their appeal. So your motion is to say that person me sitting in this chair is correct. Richard's wrong. Okay. to get it before you. You're making an you're making the motion motion to approve the appeal by so and so. Okay. So, if you agree with Richard or your zoning officer, if it's not Richard in how many years, you're going to vote no. If you agree with the appellent, you're going to vote yes. Okay? You're not saying, "Was Richard right?" You're effectively saying, "Is the appellent right with your vote? Is the appellent right?" Yes. Yes, you rule in favor. No. No. You rule in favor of Richard's decision. Okay, that's the one thing. And trust me, that's one of those where I'm going to wind up in the room too to make sure that we keep that straight as well. But you want to double check. That's why it's important to double check what does a yes vote do, what does a no vote do before you're voting, especially on these things. Okay? But that's one of the keys. It requires a two-thirds majority um to rule in favor of the appellant. Twothirds majority of the full board, which is the same rule on variances as well. Okay. So, it's going to be six members whether there are seven of you here or whether there are nine of you here. Great. Is that right? Yeah. Um so, I just talked about that process. So, with that, you guys had any appeals? You feel like I was wrong on any of that or any questions on appeals? Because the last thing will be

conditional uses and then I don't know that anyone wants to be here much past 9 anyway. Oh, never mind. We're locked in. We'll be here all night. All right. No questions there. I'm just going to I want to recap this. Um just kind of recap what your zoning districts have. You have use types. The use types are there basically to because state law says that your zoning districts have to be uniform across the entire zoning district. Okay? That's why some places find it easier to have multiple different types of zoning district that are kind of the same. multiple commercial districts. Some of them have multiple egg districts, so on. But you have permitted uses, things I can roll out of the bed and do as long as I got 35 acres, I roll out of the bed and have a house, right? Um, I can roll out of the bed and plant corn on that field tomorrow. That's a permitted use. It doesn't require you to walk through the door and get a permit. It's just blessed. In theory, we could require those, but it doesn't make any sense. like why would we make someone get a permit before they go come go plant corn? Um accessory uses are uses that once you have one, you're expected to have the other. If I am farming, I am expected that I'm going to have a grain bin or a barn or a corral or a fence or something like that. If I have a house, it's expected I'm going to have a garage. Those are accessory. If I have a gas station, it's expected I'm going to have gas pumps, things like that. Okay, special permitted uses are uses that are mostly permitted except they've got a few specific conditions. For example, um though they're not listed that way. Your ordinance, we don't have any in your zoning ordinance, do we? We do. That's right. We do in the egg district. Those are those are ones. A good

example, though I don't think we listed it this way. A good example is that lowest tier of feed lot. Okay. their list is a permitted use but there are specific conditions that they have to meet otherwise I mean it's you meet these conditions and so that's one but we have what was it is it what are some of them we had the yeah the class C mobile home for a family member that's right is there um setback for a non- egg structure or for an egg structure and shelter belts

yeah that's right what we're seeing these as much as anything for are those exceptions on variances and setbacks, especially shelter belts. I think makes a lot of sense where I remember very specifically several times where this particular board said, okay, if if the township's cool with it, why why are we in the middle of this in that case? Um I I know that that's it. I run into that in other places, too. But those are examples where if they meet the conditions, they just get to do it. Move on. Conditional uses, those are the ones you're hearing all the time. You're familiar with them. They're subject to certain criteria and conditions. Prohibited uses are things that just that are not listed, so they're not allowed. One thing I do want to underscore with that point is sometimes uses are prohibited on purpose because we just flat out don't want them. And in other cases, they're prohibited because we didn't think about it when we wrote the ordinance. And that's why you can't really fault an applicant for asking, hey, is this okay or not? Um, did you guys really think about it? The one thing that I don't think members of the public realize is how much time going through a zoning ordinance is and how much what about this, what about that? All of you that sat on that egg subcommittee know that as well as within the zoning or uh the zoning board. The process um notice has to be published according to state law at least 10 days prior. You guys do 14, right? You guys backed it down to 10. Um you've got 10 days. Adjoining property owners are sent notice prior to the hearing. Some places use signs. You don't. Uh the city does. They use signs. They are decisions are based on the application to the regulations. Did they meet the requirements of the ordinance

all allowable uses um to which reasonable conditions may be attached and factual findings. Basically a conditional use is a use that's allowed in the zoning district. Right? seems obvious that use is allowed in the zoning district as opposed to the variance where no unless there's a good reason. The conditional use is yes unless there's a condition they're not meeting. And if there's a condition that you see or something very unique about the property, generally speaking, you got to give them a a road map as to what is specific about that that makes this not work because it's implied if I walk through the door that I can do that. The I oftent times will have somebody when I'm in a meeting uh you'll hear somebody come up and say, "Why did you approve it there?" or an applicant. I know that it meets the requirements, but why did you pick that spot and not this spot, which might work better? It's like asking somebody, why didn't you keep looking for the remote after you found it? They already found it. They found one that met the rules. They found one that met the past application of your requirements. And they found one that pretty much met the same conditions. So, why would they keep looking? they already found one. They sometimes they know that the neighbor's not going to like it. Other times they don't until they come in. So the bottom line is is that if if it is a no. Often times what you wind up seeing or hearing is that there's probably it's not necessarily a no, it's that there's a specific condition that they're just either going to refuse to meet or can't meet. And one of those examples is that I've got one uh I've got one where we've done it on gravel pits where if they're

close to the interstate, we require them to reclaim as they go very little amounts. And sometimes they just say it's just not worth it for us because you're making us reclaim too fast. Okay. Well, I mean, that's how we're going to do it if it's close to there. We just got to be consistent in how we're doing that. And I referenced that MG Oil case that's in there. Um because that's that's where that comes from. There was a case in in Rapid City in which it was a casino, but basically the the the uh city denied a casino permit. It was a conditional use permit to a group wanting to have a casino. And at the meeting they presented, you know, the the uh neighbors of course said this is going to be a blight and it's going to be a problem and the police are always going to be there and and it's going to decrease property values. And the applicant actually brought evidence of other casinos where property values didn't decrease. They brought police reports to show that actually in some of these areas that are similar to theirs where casinos went in, they didn't have more police reports. So ultimately they wound up denying it. They the city did and their findings they basically recited, hey you didn't you weren't compatible because that's oftentimes what people say. It's not compatible. Your ordinance doesn't let you play that game anymore because you define compatibility as a justification for issuing conditions, not for saying no. But where that comes from is this case. because in that case the Supreme Court said you can't just say no it's not compatible especially when somebody brings a bunch of evidence to you that to the contrary you better have some evidence too. So ultimately they wound up throwing out the decision of the uh

uh the city and and basically issuing them the permit because they ignored their own ordinance because the applicant actually demonstrated that it could be compatible. What they did say is that the Supreme Court said you have to tell them what they missed so that they understand what is different about this because your ordinance does say you can do this. So there's clearly something some disconnect. You got to say what that disconnect is connect those pieces. So that's why in your ordinance you've kind of closed that loop a little bit and just said here are the this is the grounds for conditions. So with that I am fine uh calling that because those are the three duties of the board of adjustment appeals variances conditional uses. Okay we talked about what a planning commission does previous the next time probably the two most logical things we would talk about spend a little bit of time talking about subdivision ordinances. I don't have a ton on that, but it's not a bad refresher, especially since you guys seem to be doing a whole lot of plats lately. Um, just kind of a refresher as to why you have that. And then also the importance the the you guys have bylaws, but the importance of bylaws and following them, I think would be two short ones we could probably do at some point. And then the last thing is exparte contacts being a board member in public because that's um not easy uh for you guys to do and I get it and respect you guys for it. So with that, are there any questions of me whether it involves this or anything else?

One of the things you'd said is something about like a special interest group. So when we're in the public hearing portion of it, do we have to listen to everybody that's here for a public hearing? Yes. Yes. Or if somebody from Sou Falls, it has nothing to do with Brookings County. Yes, you do. Okay.

It is an advertised public hearing. Here's one of the things that we have done in other places. Okay. Um there are two things that I was going to add when I was talking about when I was mentioning we should talk about bylaws. One thing we've done is we write into the bylaws immediately how long testimony is for. We say uh if I'm writing the bylaws, I'll say that the applicant has between 10 and 15 minutes to talk, which is more than somebody in public has. Why? Because they're the ones asking the thing. And as we just went through, if it's a variance, they've got seven things they've got to prove to you. If it's a conditional use, they could have 12 pages of zoning ordinance that they have to prove that they've met the conditions. So, logically, it's going to take them longer. If I'm a member of the public, generally we'll go three to five depending on what the community is and we just flat out put them in the bylaws. That way you don't have to make it up as you go at the meeting and you don't forget about it. That which would also be it. We don't pass times things like that. But one of the other things we do is we require a sign in and we require you to mark whether or not you plan to testify and we also require not necessarily an address but where you're from. And so generally um in Codington County, I can tell you the practice is we call on people from the county first and then the people from farther away can talk because we're most interested in what those people that are close to the applicant have to say. And then as they come in, not to say that we're not interested because they might bring up something that was thought of somewhere else, but we're most interested in how that affects these

people close by and then going on that would have gotten notice. It's a thing that you could look at in doing so and then you just kind of reshuffle. It does put a burden on Richard and and Bob or me or whoever and Rayen, whoever's here, but you call people up. you don't say anyone else. Then you you've got the sheets and you call them up. The one thing we do though in that and I know that you guys have had these large hearings where you wind up having everybody here and then there's someone else out there that didn't realize you had to sign up at the end. And in our bylaws, we actually say this. Everybody gets three minutes. Okay? Everybody that signs in gets three minutes. If you don't sign in, you forgot to sign in or you didn't think you were going to talk, but I thought of one thing. That's the point. At the end of the meeting, at the end of the hearing, before I close the public hearing, is there anyone on either side that did not speak that has something to add? you'll have one minute after you speak your after you introduce yourself because the people who did sign up, the people who followed the rules should get to talk longer. And so that's that's how it's generally done. The other thing that I do when I'm calling people up, are there any proponents to this? And then the other group is opponents or neutral parties because that takes that well I don't really know if I'm opposed to it, but here are seven reasons I think this is a dumb idea. So it takes away that I'm neutral and I didn't know I I just wanted to talk at the end. So it just kind of puts them all together in that standpoint. So those are a couple of best practices that I would do. And I would really do one of the ways that we handle that is we have that signin sheet. You've already got the sign-in sheet. You just throw a check mark on it

and then what item you're there for, right? You just take the agenda item, say, "Here's the agenda item. Which agenda item are you here for? Just give me a number." And then from that then the chair within our bylaws the chair reserves the right if there's less than a certain number signed up for it reserves the right to just not call them by name basically just say anyone else here because if there's only two people signed up Monty Stephen you don't have to go through that so gives you that flexibility at that point so that's an example that I'd really think about for you guys especially as you roll to you know you're going to have another big one at some point. Lucky you.

What's that? [Laughter]

That's right. What else? Anything else? I just think just to even though you've kind of made your decision, just get in a dialogue or things that you like about the the variance or why it's good or why the conditional use is. We had two two former board members. They would just get up and converse and to the applicant like say yes, it's a good idea and why the board has their decisions and why they why it's there. And you know, they could still tell them no in a nice way is what they're doing, but yet it gives the public a chance that we're just not sitting here and we're just a yes board all the time or you're just a yes board. It kind of gives them the idea that yes, you do looking at things and and what you're basing your decision on, you know, whether it's for or against or requirements of that. You know, one one of the answers that often comes up on on these asks and really I don't you really don't get a lot of variance requests in the egg district anymore, do you? I think we pretty well took care of a lot of those. But basically the answer take Lake Park, right? When someone asks for a variance in the Lake Park district, the answer is pretty simple. We have fill-in-theblank number of people who own property in the Lake Park district. It's not you applicant are not the only one asking this question. We're going to have to answer this question to everybody else who comes in and we can't pick and choose. We have to defend why we said yes as Richard's saying in that discussion. If the answer is going to be yes, I mean, and that's one thing too, but you do want to talk about here's what's unique about this. Here's what's different about this as we're doing it. That's where Richard's trying to coax that out of you when we're talking about findings of fact. Um, you know, and he's

just lobbing up. I don't know, maybe because the property was platted early, you know, in there. They're really just guesstimates at that point. It's really to try and get you guys to talk. And if you can't think of something, tell them no. I mean, and say, "Hey guys, listen. I I get it that this is a pain in your bottom, but the truth is is that these were written for a reason. And if you don't know the reason, that's where I go back to the other point. You don't know the reason or you can't think of a good reason why that's there. Sometimes you can put me on the spot and I can try to explain why it would be there. I'm not going to give you a well, you better say no, otherwise you're dumb. I'm not going to say that in a meeting, but I will give you my best estimate as to why the rule was there. I will say I wasn't a part of the lake park discussions when that section was created. So I don't know every reason why that's all there. I can tell you why other places have the rule. And you might wind up looking at it. You've been into this section like Lake Park that's been adopted for eight years probably into seven or eight years. probably is a time to take a look at are we is it what we want and is it the way we want it. So let's keep that in mind too. Don't feel bad about this really is something we need and we need to amend our ordinances for. We're tired issuing variances on this good discussion. Anything else for me? Good news.

I'm out. Well, if Luke is done, we'll move on to department reports.

Yes, sir. Thursday. We thought we'd be done by now, but some requirements coming to the meeting. plug away. We really don't want to existing pipeline perfect gas can't the word safety.

Bob, I don't think your mic's on.

Pipeline meeting Thursday. Randy Jensen to update you at the next meeting. It's going to rain tonight. The rain setting on the border right now of uh Kingsbury County, Brookings County. It's all the way up to Watertown and north. Good luck getting home, Luke. Yeah, it looks like this is going to be a Oh, it'll be fine if I get out of here in one minute.

Yeah, good luck with that. Richard is going to talk about a at the county commission meeting that I was not at. Mr. Mills who we turned down a was it a variance or conditioning was one of the things for he um he brought some documentation to the county commission to look at the county commission directed the zoning uh my office county development office to pass the what Richard is passing out to you is what Mr. Mills gave to the county commission to take a look at. So, what I would like for you to do is put this in that book. Remember that big book that Ray Lynn makes for everybody, put this in that big book. And when we do our next ordinance review or next ordinance update, these are some things that it's from a concerned citizen. So, we need to take them seriously and look at them at, you know, and if it's something that that you as a zoning board member feel is pressing, obviously, you can bring it up at any time. But uh we we encourage the public to give us feedback on our ordinances and that's what I would consider this to be. Keep it in the book and back of your mind and we will look at at next time we update the ordinance. Rich Richard, we'll let you continue. Um yeah, we're going to have a busy month here coming up in a September the way it looks. So got several items on the agenda and it's not the deadline date of next Tuesday yet. So um yeah, this is just some ideas that he had passed around if you want to consider that or good, bad or otherwise that's bringing it to your attention to bring back the possible amendment to the zoning ordinance if you feel like it. So that's what we're always open to

um suggestions and different things. If something need is on there, it's not working, we need to change it or delete it or add something. So, it's a living document. The the zoning ordinance is so we have found a few things we need. We we will be doing an ordinance update just for some minor wording things and different things in there um for that. But otherwise, that's the zoning ordinance is working pretty good the way with the changes that we've done. So for the most part, so that's all that I have and I think that's

okay. Any need for an executive session? Didn't think so. Motion to adjurnn. Motion by Jensen. Second by Troy. All in favor. Meeting adjourned. Thank you.