A representative of the Kansas Livestock Association accused Finney County commissioners on Monday of “punting” a zoning issue that had been tabled by the Board of Zoning Appeals after the request was withdrawn, while asserting that the county's feedyard zoning regulations are illegal.

Irsik and Doll Feed Services in Garden City initially applied for a conditional use permit to expand its feed operation in Garden City, but withdrew the application in lieu of contending the county’s ability to enforce zoning regulations on agricultural operations in the first place. Now, the KLA is asking the county commission to consider amending county zoning regulations and removing the requirement that feedlots must apply for a conditional use permit to expand by classifying similar operations under “agricultural purposes,” thus nullifying the county’s zoning authority.

The resolution that would amend the zoning regulations already has been approved 5-3 by the Finney County Planning Commission, and Kaleb Kentner, Garden City’s Neighborhood and Development Services director, noted “uncertainties of the law” and “potential liability” in its recommendation to the commission to take whatever action members feel is “in the best interest to defend citizens.”

If the resolution and amendment pass, feedyards would still be beholden to the Kansas Department of Health and Environment’s regulations, but the county would no longer be able to rigidly enforce zoning regulations that would otherwise pertain to them.

In response to a question by County Commissioner Bill Clifford, Kentner said if the amendment were passed then the county commission would have no control over a situation hypothetically involving the establishment of a confined hog feeding operation in Finney County, even in the context of public outcry.

“Well that’s disturbing,” Clifford said. “I think our county has been very welcoming to beef, cattle, dairy. I think other types of nuisances we wouldn’t be so much in favor of or accepting of. I feel like if I voted for this I’d be abdicating my responsibility to our citizens. I sense that they wouldn’t look favorably upon confined hog feeding. I’d be interested in what we find out from KDHE, if we’re in line or if we need to go seek legislative relief.”

While the county commission agreed to postpone the decision for a two- to three-week period to get more information on their options from the KDHE, the KLA contends that the county’s zoning regulations are illegal because they don’t have the right to limit the expansion of feedyards and other agricultural operations by requiring conditional use permits.

Tucker Stewart, KLA associate counsel, said the Legislature already has concluded based on Kansas legal precedent that agriculture is exempt from county zoning regulations.

“Your zoning regulations as they were written in 1995 are technically unlawful,” Stewart said. “They regulate agriculture, and that is impermissible under state law.”

He added that regulations put into place by the KDHE serve as “de facto” zoning regulations.

“The bottom line of what we’re asking here today is recognizing that requiring this conditional use permit is outside of your actual authority,” he said. “I really do think you do yourselves a disservice by punting on this issue today… It’s whether or not your zoning ordinances are in compliance with state law, and I’m confident that they are not.”

County Commission Chairman Lon Pishny told Stewart he takes offense to his usage of the term “punting the issue.”

“We are not punting the issue,” Pishny said. “We are putting together all the information that we believe is necessary to make a decision, and to me that’s not punting. We are not sending this somewhere else.”

Commissioner Duane Drees agreed. He said the county commission should never make a decision the first time an issue is brought to its attention, especially one that could potentially have “far-reaching consequences.”

“I live in a pretty nice subdivision,” he said. “If, according to your explanation, ag is exempt, my neighbor could bring in a couple of hogs and put them in his backyard and call it ag. We can’t allow zoning to go away that simply.”

Jon Fort, a member of the board of zoning appeals, said he was surprised as someone who works in the agricultural industry to see the request for a conditional use permit.

“Honestly, I did not realize that that was a requirement,” he said. “Basically, I’m an ag guy, but I didn’t know that was part of our job, so I was quite surprised.”

He said the board was ready to issue the conditional use permit until the request was withdrawn.

“I don’t even know why we went through the process because if you don’t want it you don’t want it, and you don’t have to take it,” Fort said. “You don’t have to request it. For us, the best thing to do is kick the can down the road because I don’t want to set some sort of legal precedent.”

In other business, the commission rescinded a motion made in July that dedicated $2 million to improvements to Jennie Barker Road, an allocation that would have expired on Dec. 31, 2018. Since the .3-cent interlocal sales tax agreement passed earlier this month and is set to cover those improvements through bonds that will be paid off by additional sales tax revenue, the previous allocation in funds became unnecessary and the $2 million will be removed from the balance of the Special Highway Fund.

Contact Mark Minton at mminton@gctelegram.com.