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Union County’s 2008 Rezoning for Hyperion Partially Illegal?

Last updated on 2013.03.17

In my morning post on the collapse of Hyperion's Union County refinery plans, I hyperlinked to a September 24 article by Julie Ann Madden in the mighty Akron Hometowner that appeared to catch first wind that Hyperion was letting its land options around Elk Point expire.

Now Madden drops another Union County bombshell: the 2008 zoning ordinance Union County passed to open the door for the refinery violated state law.

The 2008 zoning ordinance, which survived a contentious referral, rezoned the land Hyperion wanted from agricultural to "planned development." The ordinance also said that if the refinery plan died, that rezoning "shall become null and void, and the tract shall revert to all the requirements of its previous zoning." At today's county commission meeting, after refinery opponent Doug Maurstad reminded commissioners of that reversion, planning director Dennis Henze said no, the Hyperion land doesn't revert to ag status.

That's when things got interesting. Here's Julie Ann Madden's account:

Originally, Henze stated there was no zoning reversion clause in the county's current zoning ordinance; it had been in the old ordinance. However, [Commissioner Ross] Jordan requested he go reread Section 1205 that Maurstad had quoted and return.

"When we were trying to get the 2008 Zoning Ordinance passed, there was a lot of opposition to several different things," said Henze upon his return to the meeting. In our existing ordinance it did say it would revert back to the old (zoning)."

"Several of the people on the committee at that time thought, 'yes, we want that in there' because they knew Hyperion was coming," he said. "It does say that in our (current) ordinance."

"It does revert back but it's not legal," said Henze. "State law would not just allow it to revert back."

"How did we get this through with (South East Council of Governments) who was supposed to keep us on the straight and narrow?" asked Jordan.

"Basically, (SECOG) said just leave it in there, make them happy and we'll pass it as is," said Henze.

"I don't recall that discussion at all — that this was not a valid clause," said Jordan. "That was never discussed in front of me."

"It was discussed in (Planning & Zoning) a couple of times," said Henze.

"That was never presented to this board that this was not a valid clause," said Jordan. "We voted based on what was presented, believing this was a valid clause."

"That was an important part of our vote — that that was in there," he said. "So why was that not presented to this board — that that was not a valid clause?"

"I can't answer that, Ross," said Henze [Julie Ann Madden, "Union County Officials Passed Ordinance Knowing Part Was Illegal," Akron (IA) Hometowner, October 2, 2012].

Subsequent discussion with Union County State's Attorney Jerry Miller led to the tentative conclusion that the zoning remains planned development unless and until owners ask the county to revert it to agriculture. But it appears that over four years of local wrangling and conflict, which has come to naught, was based on an ordinance that commissioners passed under false and illegal pretense.

* * *
In a bonus scoop that dashes Commissioner Doyle Karpen's clinging hopes, Miller gets confirmation from Hyperion spokesman Eric Williams that Hyperion did not hold onto any land options in Union County. They're all gone.


  1. Dougal 2012.10.03

    Trapped like rats in their own device! The slicksters who tacked together this goofy project really did a big disservice to the people of Union and Clay counties with how this project was shoved down their throats. Only a fool would believe that Congress would have $10 billion lying around to hand over to a "green" oil refinery, which was the business strategy from Day One. Nobody in Washington believed a $10 billion bailout was going to be handed to a bunch of Texas speculators who had no experience running such a facility. The elected leaders in Elk Point and Pierre who engineered this farce need to be exposed so they are held accountable by all of our state's citizens.

    This farce started in secrecy, which was the result of government leaders holding back information from the public. No news reporter has an obligation to continue shielding the incompetence from the public any longer.

  2. Hank 2012.10.03

    The point not made here is that only the "reversion clause" was not right. The rest of the zoning ordinance is completely fine. I wonder what poor doug will find to gripe about now that the refinery is out. I'm sure he will think of something.

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