Was Meade Co. justified in granting variance?

The Meade County Commission has said that it would not treat oil giant TC Energy, builder of the Keystone XL pipeline, headquartered in Calgary, Alberta, Canada, any differently than it would treat other Meade County residents when it comes to following county ordinances.

But on Tuesday, they granted a variance to the building permit for TC Energy.

Would a homeowner or small business owner be granted the same under similar circumstances?

It wasn’t the county’s fault that a court order halted all the construction on the pipeline, and TC Energy certainly has the means to pay for another permit.

If it had been the county’s problem forcing them to stop, then a variance might be justified. Instead, the county is asking TC Energy to pay the difference in cost from a 2018 building permit to a 2020 building permit – about $16,000.

TC Energy Corporation (formerly TransCanada Corporation) is building the Keystone XL pipeline which will bring oil extracted from the tar sand fields of Alberta, Canada through Montana, and South Dakota, to an existing pipeline junction in Steele City, Neb.

The pipeline bisects the northeast corner of Meade County on its route through South Dakota.

In Meade County’s ordinance 35, it states: Pipeline owners, operators and/or contractors must comply with all applicable local, state and federal laws and regulations in construction and operation of the pipeline.

On Tuesday, the commission, voted 4-1, to allow a variance for TC Energy’s building permit, first obtained in October of 2018.

TC Energy admits and the county confirms that just a month after the company secured their permit in October of 2018 for construction on a workforce camp near Opal, a court order halted all work.

County staff then received a request for an extension on the original permit. They agreed, but later realized the county’s ordinance didn’t allow an extension if little or no construction had been done on the building site.

“Unless the project is significantly complete, the permit will expire,” said Bill Rich, Meade County’s Deputy Director of Planning.

Because it was unclear if the county could, or could not, grant an extension, the issue came before the Meade County Commission on Feb. 25.

“I’m here today to say that your building permit ordinance is not a model of clarity. With all due respect, it is about the opposite,” William Taylor, an attorney for TC Energy, said at the meeting.

After studying the county’s ordinance, he said he believed that anyone could get an extension “for the asking.”

“The implication is that you get it,” Taylor said of the extension. “Logically, if the permit is for a year, then the extension would be for a year.”

Meade County Commission Chairman Ted Seaman said at the Feb. 25 meeting that it was his desire to treat TC Energy the same that they would any other citizen in Meade County.

Seaman said the commissioners spoke with staff concerning how they handle extension situations.

“The six-month extension is something they grant. Then, if the work isn’t complete at the end of that six-month extension, then new permitting is required,” Seaman said of the Equalization Office. “That is how we would handle any other individual in Meade County that we are working with.”

Commissioner Doreen Creed also pointed out that there would be a deduction on a new permit for the portion of the building that had already been completed.

“We have to treat everybody the same,” she said.

Commissioner Rod Bradley told Taylor the company that it could apply for a variance on the permit.

“There are extenuating circumstances with this that wouldn’t have been your guys first choice,” Bradley said.

Taylor said he appreciated the clarity given through commissioner comments because they now knew where they stood and returned this spring asking for the variance.

Here’s what the county ordinance says about granting variances:

The county commission shall have the authority to grant a variance. The person claiming the variance has the burden of showing:

A. That the granting of the variance will not be contrary to the public interest;

B. That the literal enforcement of the ordinance will result in unnecessary hardship;

C. That in granting the variance contrary to the provisions of the ordinance, the spirit of the ordinance will be observed; and

D. That by granting the variance, justice will be done.

But in the end, has it?

Black Hills Pioneer Editorial Board

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