Oconto County Rejects Variance For B & D DairyIssue Date: May 24, 2017
A variance sought by B & D Dairy to construct a 12 million-gallon manure storage facility closer than 250 feet to the nearest property line off Hillcrest Road in the Town of Little River was denied by Oconto County Board at the conclusion of an hour-long formal appeal hearing on Thursday, May 18.
B & D Dairy is owned by Brian Lepianka and his wife, Danette Ossmann. Its main dairy cow operation is located in the Town of Grover in Marinette County. Manure from that farm would be hauled to property they own in the Town of Little River in winter to be stored in the proposed pit. In spring and summer it would be delivered by a hose system to fertilize fields on which they raise feed crops.
The narrow 14 to 15 County Board vote rejecting the variance came after nearly an hour of testimony and discussion at the board's regular monthly meeting on Thursday, May 18. There were no proposals to modify the variance conditions, although that was a third option.
The 14 supervisors who voted to support the variance as recommended by the LCC were Chair Lee Rymer, Elmer Ragen, Darrel Pagel, Dennis Kroll, Robert Pott, Al Stranz, Karl Ballestad, Jim Lacourciere, Buzz Kamke, Bill Grady Mary Lemen, Paul Bednarik, Richard Nelson, and Alan Sleeter. Supervisors Gary Frank and Ron Korzeniewski were absent.
Those opposed were supervisors Don Girardi, Chris Augustine, Vernon Zoeller, Diane Nichols, Robert Reinhart, Gerald Beekman, Rose Stellmacher, Melissa Wellens, Ken Linzmeyer, Greg Sekela, Doug McMahon, Ryan Wendt, Judith Buhrandt, Don Bartels Jr. and David Christianson.
Oconto County Conservationist Ken Dolata said County Board rejection of the variance does not mean the storage facility cannot be built on the Town of Little River acreage purchased by B & D Dairy for growing feed crops, but does mean it cannot be sited on the property exactly as planned, and in the spot the Land Conservation Committee (LCC) felt was the best location.
The variance had been approved by unanimous vote of the LCC in April, following a site visit. Provisions were that it be built no closer than 153 feet from the nearest property, with conditions that the landowner (B & D Dairy) install and maintain a safety fence around the storage facility and that emergency spill detention basins be constructed on the west side between the storage structure and stream and on the north and south sides of the driveways with a volume that would hold the contents of the largest semi tanker. Plans for these conditions were to be approved by the LCC division before installation. The property it would have been closest to is also owned by B & D Farms, but is separated from the main acreage by Hillcrest Road.
At its April 10 meeting at Little River Town Hall the committee had listened to public testimony, and 24 persons filled out public hearing appearance cards. Dolata had explained the ordinance and reasons for requesting the variance. Jennifer Keuning and Nicholas Coady of GHD Services, Inc. explained the variance requested on behalf of B & D Dairy and discussed some of the specifics and details for the planned storage facility and surrounding area. Committee vote granting the variance was six to zero.
After that vote, the LCC received 27 requests to appeal the variance. By County Ordinance, County Board is designated as the Appeals body to review the action taken by the LCC and could either affirm, reverse or modify the committee decision.
Corporation Counsel Cheryl Mick explained to County Board at the start of the formal appeal hearing that if the variance was rejected, B&D Dairy could either appeal to circuit court by seeking a writ of certiorari (which could leave the variance intact), or go back to the LCC for a permit without the variance.
Dolata said despite numerous objections from neighbors and town officials if B&D Dairy chooses to apply for the permit without the variance, his department will have to grant it if the plan meets all the ordinance requirements, and he believes it does.
He explained Oconto County has an ordinance through which anyone wanting to build an animal waste facility there must get a permit from the Land Conservation Department. Land Conservation staff and the committee first verify that the proposed facility meets all state and federal requirements. If it does, the permit must be granted. "The committee cannot refuse a permit if the project meets all the requirements," he repeated.
Dolata said ironically, the variance would have allowed the facility to be built closer to the lot line with the other parcel owned by B&D, but farther from its nearest actual neighbor, who was one of the objectors. Had the variance remained intact the pit would have been 153 feet from another property owned by B&D Dairy, but under separate deed because it is across the road. Now it must be 250 feet from that line, but will be almost 100 feet closer to one of the neighbors who appealed.
Dolata said part of the committee rationale in granting the variance was that the pit could be put deeper in the ground and moved toward the line with B & D's own property and 97 feet farther away from the neighbors to the south.
The main farm of the 7,000-head B & D Dairy operation is located in the Town of Grover in Marinette County. County Board was told plans are to haul manure from there to the storage pit in Little River mainly during winter months when roads are frozen. By means of a pipe line system, with no further trucking involved, manure from the pit will be used to fertilize feed crop fields at various times during the spring and summer.
To Dolata's knowledge, no public funds will be involved in building the B&D facility. He explained once over about 700 dairy cows, the state and federal governments consider the farm a "Confined Area Feed Operation" (CAFO), which must get a permit from the DNR to operate and is not eligible for any state or federal funds.
According to the B & D Dairy website, B and D Dairy is "a modern, family farm where cows and family are the focus....Owners Brian Lepianka and his wife, Danette Ossmann are the third generation to farm on the northeastern Wisconsin site of B and D Dairy. Their sons, Nathan and Reily, join them as the 4th generation....B an D Dairy works with 85 different families who own much of the 7000 acres of land they are able to use to produce corn silage and alfalfa for their 7500 animals....The dairy provides an income for the families of 35 employees who work to keep the cows milked, and ensure all animals are given the best nutrition and a clean, comfortable environment."
At the start of the County Board hearing, Mick explained the procedure, which she said does not happen very often. She said B&D Dairy was granted the variance, and GHD Engineering drew the design for them.
Persons objecting to the variance were entitled to deposit written evidence regarding their position, and appear in person. She said all County Board members had received copies of the complaints.
Main concerns expressed by neighbors centered on odors, loss of property values, damage to town roads, and possible contamination of groundwater should a spill or leak occur, or if manure was spread too heavily on fields.
Mick explained only those who had a complaint that their rights, duties or privileges were affected could appeal.
"We're here today to listen to you," Rymer assured everyone in the filled board room.
Dolata explained the proposed project and gave a brief history of the animal waste ordinance adopted in 2002 with input from a citizen's advisory committee.
He said the proposed project is to be a "satellite collector" for animal wastes from the main farm in Marinette County. It is to be a concrete lined put that will be filled in winter with manure to be spread on fields in spring.
He said with the variance, because of elevations dikes around the pit could be four to five feet high instead of 10 to 12 feet, and the pit would be 97 feet from the nearest neighbor. The committee felt having it built into the ground also would be safer.
Dolata said the DNR does not have setback requirements for these facilities, but does make sure concrete meet specifications and verifies that the pit is the proper distance from the water table. The location allowed by the variance is the highest elevation available on the property.
First opponent to testify was Robert Desjarlais, who said he had been asked by Little River residents to represent them at the hearing. He has been Town Chair for 8 years and member of the town board for 10 years.
He said he had been at the first meeting, "and it was kind of a hot topic in our township." There was a petition with about 100 signatures, and 60 to 70 people attended the hearing, at which he felt the public was disregarded. "We did get off the subject," he admitted.
He said during the on-site visit there were perhaps 25 to 30 people waiting at the gate, but the committee drove past them and went to the proposed pit location without inviting them. "I have never seen an onsite visit done in that fashion," he declared.
He said Little River lies in a protected watershed, there is a navigable stream on the property, gas lines are on two sides, and a town road on one side. He felt the variance was requested because without it, there is absolutely no room to expand the pit. With it there is.
He said it is the opinion of Little River residents that the reason for the variance was to save money for the owner, "and you cannot grant a variance for economic gain."
Desjarlais said he was on the Plan Committee when the ordinance was adopted, and "Our main goal was to allow agriculture to function while protecting the environment."
Mick interrupted to ask him what adverse effect the variance had on him or the people he was speaking for.
He replied mainly there are concerns about groundwater quality and property values.
Mick said there is no evidence that the groundwater quality will be affected, "but you believe that (concern) affects property values?" Desjarlais said that was true.
Next called was Doug Allen, who lives in Little Suamico and represents the Farm Service Agency on the LCC. Allen said he does not live in Little River, but does represent the LCC and is in favor of the variance.
Next speaker against the variance was Richard Kloes, who has the farm just south of the proposed pit. "What is going to happen with smell when they put 12 million gallons of manure in a pit 1,000 feet from my home... How can you not smell it?... When you agitate manure gasses and odors come out!" He said there also is a 10-acre wildlife area nearby, "and when this escapes, what's going to happen to the wildlife?" There are also three wells on his farm, "and if they get contaminated, that's an expense to me!"
Randy Larmay, who owns land kitty corner and across the road from fields where the manure will be spread was called on next.
He said B & D Farms bought 600 acres for crops and felt the land couldn't handle the manure from a pit that large. He said 12 million gallons, divided by 600 acres, means they will be spreading 20,000 gallons per acre, "and the land can't handle that much!" He also said manure hauling, at 6,000 gallons a load, will damage the down roads, and also will be making a mess. He declared there should be a limit on the number of animals one farm can have, and said with milk prices so low, there's no demand for it right now anyway. "I bet Kewaunee County wishes they had decided differently," he concluded.
Coady, speaking for GHD Services, Inc. and B & D Farm, said the pit can be built on the site with or without the variance, but placing it on the highest elevation would reduce the height of the berms. He added the higher berms do not cost much more than the lower ones. He explained B & D Farm had wanted to combine the two parcels it owns, but could not because Hillcrest Road is a dividing line. Their design keeps the pit set back 300 feet from the high water area.
Part of the reason for the pit is to prevent damage to town roads. Manure can be hauled in winter when the road base is frozen, and then be available in spring when it can be hosed to fields where it is needed, with no trucking involved at sensitive times.
He said just because the pit will hold 12 million gallons doesn't mean it will be full, nor does it mean that the manure will be spread all at one time. Spreading will be done during the growing season as needed.
Stellmacher commented 12 million gallons equals more than 2,000 semi loads of manure, which would have "quite an impact on town and county roads." She noted there are no cows on the Little River property, "so all the manure is imported from Marinette County." She suggested they should talk to the DNR about a rule against moving manure from one county to another.
Nichols too wanted to know why the manure is not being taken care of in Marinette County, where it is produced.
Dolata explained B&D Farm is a large operation, and he bought the property in Little River to raise feed for the cattle he has at his main operation in Marinette County. Dolata felt county lines were not a consideration. Using the manure will help the farm use less artificial fertilizer, Dolata said. There is no rule about moving manure from county to county, but there are rules on how heavily it can be spread, and where it can be put.
Sekela questioned lack of emergency barriers between the pit and the creek, and Dolata said the variance does require that, in addition to emergency pits on either side of the driveway big enough to contain the spillage in case a semi rolls over.
Bednarik asked if towns have a say in the pit location, and Dolata said they do not. He confirmed again that the pit can be built without the variance.
Sleeter noted in the past the DNR regulated the amount of manure that could be applied per acre, and Dolata said it still does. The owner has to follow a crop management plan filed with the Land Conservation Department.
Members of the LCC were asked to speak. Kroll and Allen said they all thought the hill wold be the best place for the pit.
Grady said he worked that land and is concerned about the water. He said the first thing the Lepiankas did when they moved in was cap the wells.
Dolata said nutrient management rules require no spreading within 300 feet of any well, but was unable to say why the wells were capped.
Wendt, who himself operates a dairy farm, asked if Oconto County ordinances say anything about satellite manure storage, and Dolata the rules are the same for any manure storage facility. Wendt said farm operations that include homes and buildings for cattle, equipment, etc., bring in a lot of tax revenue, but from this type of operation the county gets very little. "I believe Oconto County should quickly put together some restrictions," he declared. He said the manure from a big dairy facility "is a huge deal!" He reminded Dolata that last month their committee came in for money for some lake quality work, "and this is very contrary to that!"
Mick said from a legal perspective, "I don't know that because you live outside the county you cannot use land you own here like anybody else."
Augustine asked if all the farm permits are up to date, and Dolata said if they were not the DNR would not approve this application.
Kloes said on the day the committee visited the pit site he and others were waiting at the gate, but no one invited them to come up there. He said there are two dug wells on the B & D property that have not been capped yet, and predicted disaster if manure gets into the two dug wells on the property that have not been capped yet.
Vote then was called, with the 14 to 15 rejection of the committee's decision to grant the variance.
After the hearing, Dolata said his committee prefers manure spreading with hoses and knifing the materials into the ground. He said farmers can pump manure five miles with hoses, which eliminates need for a lot of heavy truck traffic
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