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UDO passes first reading on split vote

Johnson County Supervisors approve controversial plan, 3-2

IOWA CITY– The Johnson County Board of Supervisors are on track to achieving a major goal for 2019: passing the updated Unified Development Ordinance (UDO), and having it in place to go into effect on January 1, 2020.
The 299-page document, which codifies the county’s comprehensive plan, was approved on a 3-2 vote in the first of three required readings Thursday, Dec. 5, during a regular meeting of the supervisors.
The agricultural community of Johnson County has been unified in opposition to portions of the UDO, which pertain to agricultural land and the county’s agricultural exemption policy. Ag exemption presumes a parcel of land, and the structures (including houses) upon it are used primarily for agricultural purposes, and are therefore exempt from the county’s building code. Ag land over 40 acres is presumed to be exempt with what has been called “The 40-acre rule.” However more and more smaller producers have sprung up around the county farming tracts of less than 40 acres that do not qualify for the exemption.
To address the concerns of the smaller producers, the UDO introduces a two-tier system for agricultural exemption. Tier 1 is for 40 acres or more, and continues the automatic presumption of exemption. Tier 2 is for 40 acres of less, and has an application process with tests for the applicant to complete to the satisfaction of the director of the county’s Planning, Development and Sustainability (PDS) Department.
Opponents say tests such as proving experience and/or education, proving intent to farm, and proving financial viability are barriers to young people entering agriculture as a career. Busard and Assistant Director Nate Mueller have stated many times over the past several months the tests are necessary to prevent people from purchasing ag land, claiming the exemption and then building houses without any agricultural operation taking place.
One of 16 changes recommended by the Johnson County Planning and Zoning Commission (P&Z), and adopted by the supervisors, calls for the elimination of the viability test and removed a public hearing requirement for applicants for new animal feeding operations with an animal unit density greater than 25 animal units per acre. An animal unit varies by type, with 25 for cattle, 62.5 for hogs, and 250 for goats.
Mueller said established and legitimate operations “should have little trouble” with the application process. He added the goals of the application were to provide smaller operations an avenue to apply for the exemption, and reiterated the need to prevent non-farmers from claiming the exemption, and then building “urban sprawl” in the rural areas. There was high confidence, he said, the ordinance as drafted was within Iowa Code, which expressly forbids counties from regulating agriculture; another point of conflict with the ag community, which has repeatedly argued the UDO violates Iowa Code.
Mueller described P&Z’s recommendations, which were approved by the commissioners on a 5-0 vote in November, reflected the “strong feelings of the commission based on public comments.” Over 100 hours and 34 public meetings were held in drafting the UDO, he said, with four listening posts held as well. Some criticized the timing of the listening posts, pointing out they were held during the day through the heart of the harvest season, which made it an added burden for farmers to attend. Emailed and written comments were also received in addition to the various public hearings and public comments, he noted. The draft document has also been available online through the county’s website since August 19, Mueller said.
It was PDS’s recommendation to approve the UDO with P&Z’s changes No. 2 through No. 16 included. P&Z change No. 1 removed the viability test and public hearing described previously.
Thirty-one people took to the podium during the public hearing with the majority opposed to the UDO.
“I feel like this is targeting a group of people, and an occupation,” said Karen Peterson, who was opposed to the viability test for new farmers. Galen Bontrager, who farms near Frytown, echoed Peterson’s concerns noting, “Young farmers starting out don’t have a lot of capital,” which would make proving economic viability a daunting challenge.
With the average age of the Iowa farmer rising each year, and fewer young people starting out in agriculture, adding restrictions and barriers could have an unintended ripple effect on ag-related businesses in the county, noted Brian Marak, a third-generation farmer from rural Swisher.
“This plan seems to be illegal and unenforceable,” Ray Slach, a farmer from the West Branch area, said. “We do not agree with the ag portions of the UDO.” Slach stressed ag policies should be based on “use, not size.”
“Here I am today fighting this unnecessary fight,” said Anita Wall, a farmer of 29 years near Morse. Her husband Tom died in a farming accident, and her son returned to the farm. The current ag climate is “very challenging” for the mother and son team, she said, and the proposed regulatory burden of the UDO would make things only more difficult. “You are creating a negative situation,” she told the supervisors adding she should’ve been in the field finishing the last of a delayed harvest rather than standing before them fighting for agriculture.
Eldon McAfee, a West Des Moines attorney who represents such groups as the Iowa Cattlemen’s Association, Iowa Pork Producers and several local farmers told the supervisors they could indeed call for an application process. However, he stressed they could only ask if the land was to be “primarily adapted for agriculture,” and could not ask for history or experience, intent or their viability. McAfee, who was involved in litigation against application tests in western Iowa told the supervisors, “Raising livestock is agriculture, regardless of the number,” and added, “You are going far beyond Iowa law.”
One supporter of the UDO was Laurie Westemeyer, who has a family background in agriculture. However, “I loathe CAFOs (animal feeding operations).” She expressed gratitude to the members of the board who have expressed a desire to limit and/or prevent such operations in Johnson County. Such facilities, she said, are “not farming,” and called them disgusting and unsafe.
Jerry Full, a resident of rural Johnson County agreed with Westemeyer whole-heartedly. Full moved to the country and was dismayed when an animal feeding operation started up nearby. His house, he said, frequently smells like “the bottom level of an outhouse” now due to the odors from the operation. “Farmers don’t have a right to affect my life,” he said as he voiced his support for the UDO.
The anti-AFO and pro-UDO voices continued with Solon-area resident Lynn Gallagher calling for a complete moratorium on AFOs in the county while expressing her support for the UDO. “It’s dangerous to move to the country,” she said. “A CAFO may pop up next to you.”
A call for unity came from Steve Swenka, a fourth-generation farmer and cattleman from rural Tiffin. Swenka said those opposed to AFOs have some legitimate concerns, but pointed out they have the ability to be concerned about how their food is grown due to the “blanket of abundance” American agriculture provides them. Swenka said farmers and the supervisors should be allies, but the UDO (which he opposes) creates a divide. He reminded them while residents of the cities have city councils to represent them, the board of supervisors is all there is for the rural residents. “Without you, we have nobody,” Swenka said. “Kirk Ferentz, Hayden Fry, Chuck Long, just to name a few think America needs farmers, and I surely hope Johnson County does, too.”
Angela Hotz from Lone Tree said the limitations imposed by the UDO would make it impossible for her family to expand their operation so that all of her kids can go into agriculture as a career. “You can not lay down your head at night and not thank a farmer,” Hotz said. “If (the UDO) approved, we suggest how many kids you can have, and how you raise them,” she added.
Greg Wall, who farms near Solon, took issue with earlier complaints about AFOs and hog confinement operations. Wall explained how the buyers of his hogs can and do inspect his operation to ensure the care and quality of the hogs. He said he tries to be thoughtful of his neighbors in how he runs his operation, and in response to the outhouse comment, said he lives close to the hog barn and pointed out, “My house doesn’t smell like hog s***.”
Jerry Anderson, representing the Iowa Farm Bureau, told the Board he was OK with P&Z’s recommendations, but, “We’re not there yet.” Anderson cited livestock as a “non-conforming” use under the UDO as an example of work yet to be done before adopting the document. “Please don’t just rush this through,” he said acknowledging the Supervisors’ intention to have the UDO in effect on January 1. Anderson referred to the many jam-packed audiences who have attended the hearings saying, “People have put in a lot of time to defend their industry.”
The board agreed by consensus to go with three separate readings, and had a brief discussion before the first vote. Board Chairwoman Lisa Green-Douglass, who frequently had to admonish the crowd to refrain from applauding speakers, said the UDO development process had not been hurried, and was personally insulted by those who thought the board wasn’t giving thoughtful consideration to the objections. Following a review of the 16 P&Z recommended changes, Supervisor Pat Heiden made a motion to approve the UDO with all 16 changes (PDS had recommended adoption with changes 2-16 only), with Supervisor Rod Sullivan seconding.
Supervisor Janelle Rettig opened the discussion by stating she sees over-regulation in some parts of the UDO, and the document “opens the door to more conflict with neighbors” in the rural areas. Rettig said the UDO does not offer enough protection for air and water from AFOs, and while she appreciates P&Z’s work on the UDO, “Air and water quality is important. I don’t like the way it is written, and I can’t support it.”
Heiden said much more work is needed on the “Master Matrix,” which determines if an AFO can be built or not, but added it was a task for the state legislature and called for pressure to be put upon them. Heiden expressed her support for the UDO.
Supervisor Royce Ann Potter, the newest member of the board, admitted she knew very little about farming and took it upon herself to visit 10 farms in Johnson County to educate herself. “I’m an advocate,” she declared before stating the process needed to be slowed down, and that the county needed to work with the legislators on the matter.
Sullivan, the longest-serving member of the board, gave a quick history lesson as he recalled “significant conflicts” developing in the late 1980s as more and more urban dwellers moved out into the county. “Development and ag don’t get along,” he said. “The board has always tried to maintain farm ground with some rural development.” He acknowledged the board, regardless of its decisions, will always make somebody mad. “Somebody’s ox will always be gored.” Sullivan recounted the two-year process for the UDO, saying it was not rushed, and desiring for more civil conversations in the future. He also called upon the Legislature to take up the issue of AFOs and how to further regulate and/or restrict them. Despite being aware of the possibilities of pending lawsuits and legislation, Sullivan declared the UDO to be “300 pages of really good.”
Green-Douglass opened her comments by expressing her respect for farmers, but noted Johnson County is more or less an “urban” county, and it is up to the board to keep things in balance when considering the needs of the urban areas and the rural areas. “It’s a super big balancing act.” In response to the many statements of the illegality of the UDO, she said, “I know where my authority lies, and it’s not in regulating agriculture.” She maintained the UDO would not shut down farming. “It is not going to end agriculture in Johnson County,” and added the UDO as written, “is not illegal.”
A roll call vote was held with Porter, Sullivan, and Heiden in favor, and Rettig and Green-Douglass in opposition. The second consideration will be held on Thursday, Dec. 12, during the regular meeting, which starts at 5:30 p.m. While meetings are typically held in the county administrative building at 913 S. Dubuque St. in Iowa City, depending on crowd size, it may move across the street to the Health and Human Services building. The third vote is scheduled for 9 a.m. on Thursday, Dec. 26.

PULL QUOTES
“Somebody’s ox will always be gored.” – Supervisor Rod Sullivan
“It (the UDO) is not going to end agriculture in Johnson County, it is not illegal.” – Chairwoman Lisa Green-Douglass
“You can not lay down your head at night and not thank a farmer.” – Johnson County farmer Angela Hotz
“Kirk Ferentz, Hayden Fry, Chuck Long, just to name a few think America needs farmers, and I surely hope Johnson County does too.”- Johnson County farmer Steve Swenka