Phantom permit baffles commission
United Ethanol timeline
April 2005: The Milton City Council approves a conditional-use permit for the ethanol plant.
January 2006: Rock County Judge Daniel Dillon declares the permit null and void because it violates the city's storage restrictions for flammable materials.
February 2006: The city council incorporates the terms of the voided conditional-use permit into a developer's agreement with the plant. It also changes zoning ordinances to remove the limit on storage of flammable materials and make ethanol production and storage a permitted use for industrial zones. The plant no longer needs a conditional-use permit.
May 2007: The city council approves a conditional-use permit for a carbon-dioxide recovery facility on the United Ethanol site.
February 2009: City Attorney Mike Schroeder tells the city council that the plant could be violating the 2005 conditional use permit. He doesn't realize the permit is void and tells the council it has no recourse to change or revoke the plant's permit.
May 2009: The city council approves an ordinance allowing it to change or revoke conditional-use permits when the permits have been violated.
July 2009: Council member David Adams files a formal complaint alleging the ethanol plant is violating its conditional-use permit by creating objectionable odors.
Aug. 24, 2009: An incident at the plant causes what a state Department of Natural Resources official declares an objectionable odor. He says the odor gives him a headache and queasy stomach. The plant says the odor came from a "bake-out" it conducted after grain got trapped in a piece of equipment.
Monday: The Milton Plan Commission holds a public hearing about whether the plant violated its conditional-use permit. Attorneys for the plant and the city tell the commission the 2005 conditional-use permit is invalid. The plant holds a conditional-use permit only for its carbon-dioxide recovery facility.
MILTON David Ostrowski still was upset Tuesday morning.
He believes Milton staff rushed to invoke a new ordinance against United Ethanol without making sure the ordinance even applied, resulting in a pointless public hearing Monday night.
"I've been mulling this over all morning," he said Tuesday. "I'm at a loss as to how we got to where we got."
Ostrowski and the rest of the commission listened for two hours Monday to testimony from plant officials, employees and neighbors in a public hearing called to find out if United Ethanol violated its conditional-use permit.
But a key piece of information came early in the meeting, when attorneys for the plant and city told the commission that the plant doesn't have a valid conditional-use permit covering ethanol production.
Permit voided in 2006
The city approved a conditional-use permit for the plant in 2005. But a Rock County judge declared the permit null and void in January 2006 because it violated the city's storage restrictions for flammable materials.
Instead of creating a new conditional-use permit, the city council incorporated the conditions of the old permit into a developer's agreement. It also changed its zoning ordinances to remove the limit on storage of flammable materials and to make ethanol production and storage a permitted use for industrial zones.
The plant does have a conditional-use permit for its carbon-dioxide recovery facility.
Officials didn't know
City Attorney Mark Schroeder, who started working for the city this year, admitted Tuesday he didn't realize in February the permit was void during city discussions of the plant's conditional-use permit.
At the time, he told the city council the plant could be violating the permit because it requires the plant to follow state and federal regulations, including those regulating odor. But the city had no ordinance allowing it to change or revoke the permit, he told the council then.
Based on that information, the council in May approved an ordinance giving it the power to change or revoke the permit.
In July, council member David Adams filed a written complaint alleging the plant was violating its conditional-use permit because of odor. Public Works Director Howard Robinson investigated the complaint before handing it over to Schroeder.
Schroeder wouldn't specify Tuesday exactly when he realized the permit was invalid, but he said it was after an Aug. 24 incident at the plant that produced what a Department of Natural Resources official called an "objectionable odor."
He said he didn't investigate the status of permit before because, "I don't like to spend the city's time looking at things that aren't active."
Mayor Tom Chesmore said he didn't realize the 2005 permit didn't apply until Monday afternoon, even though he was on the council when the judge declared it void.
"I probably should have (known), but I didn't," he said. "Or I knew it and I didn't remember."
Recourse still possible
There's still a chance the carbon-dioxide recovery facility has something to do with the odors, in which case the plan commission could recommend the city council change or revoke that conditional-use permit, Schroeder said.
"I know that the plant, United Ethanol, has taken the position that none of the odor complaints originate from that facility, but that's not yet certain, so the city needs to investigate whether or not that is the case," he said.
If the alleged odors don't come from the carbon-dioxide facility, Schroeder said the city has two options:
-- The city could find that the plant is violating the developer's agreement. In that case, the city could seek an injunction in court to bring the plant into compliance, Schroeder said.
-- The city could find the plant in violation of city ordinance prohibiting noxious odors. In that case, a citation probably would be issued by Robinson, either at the council's direction or by his own authority as building inspector, Schroeder said.
The city could fine the plant $50 to $500 for a first offense, he said. The case would then go to municipal court.
Ostrowski said he believes the issue can only be settled through the courts, where experts could give sworn testimony about the effect of plant odors or emissions on neighbors.
"There are recourses in the courts to deal with those issues," he said. "I don't know if city government is the place to do it."
He said city staff should have realized that the new conditional-use ordinance doesn't apply to the ethanol plant before the issue came to a public hearing.
"My only assumption at this particular point was there was a rush to get this on the agenda and in front of the planning commission and get this decided," he said.