Beneke loses in court, must move silage

A ‘Keep Out’ sign is now located outside Mike Beneke’s property where the silage is located on the edge of Marion. Patty Decker
A ‘Keep Out’ sign is now located outside Mike Beneke’s property where the silage is located on the edge of Marion. Patty Decker

Mike Beneke, owner of Double B Cattle, east of Lincolnville, and owner of property in the city of Marion, has less than 10 days to remove about 8 million pounds of silage with city limits.

Beneke was granted a hearing in front of the Marion City Municipal Court, at his request, for a chance to plead his case and better understand why his silage is causing such a big problem.

Municipal Court Judge Randy Pankratz, heard more than one hour of testimony from prosecution witnesses, and the defendant, before ruling in the city’s favor and ordering the silage be transported to another location.

“I am trying to make a living and meet $660,000 a year of financial obligations,” Beneke said. “The rest is in your hands.”

Susan Robson, city attorney, said the city is not trying to prohibit Beneke from making a living.

Robson added that the city is only asking that Beneke follow the same health and nuisance codes that everyone else is required to follow.

Pankratz said he is not an expert in agricultural or the environment, but I understand the material presented in the form of written and testimony.

“The issue here is whether the evidence the city has presented comes out to a violation of the city ordinance titled, ‘health nuisances,’” he said.

In addition, he said, the city keyed in on Section A, which includes a prohibition on some specific things to include paper, rocks excrement, rocks, dirt, cans, trash and silage is not on that list.

“But, then it goes on to mention ‘or any other offensive or disagreeable thing or substance,’” he said.

Sweet or repugnant

Pankratz said he thought the question of odor provided some index, which was one of the things Beneke testified about regarding the smell of corn silage.

“I don’t have a personal impression of corn silage because sitting here, I couldn’t tell you the smell of that silage from a different silage,” Pankratz said.

But, he added, the standards of offensive or disagreeable odor aren’t just purely objective, and the ordinance doesn’t require a concrete safety violation be proved.

Marty Fredrickson, code enforcement, and Roger Holter, city administrator, testified about a variety of concerns to the city.

Holter, Pankratz explained in his judgement, said some of the reasons why this was a safety concern, included it being a fire hazard because of its proximity to residences.

It ‘s also in the flood plain, which implicates surface and ground water.

The city, Pankratz said, also was concerned about the height of the pile and it not being covered. But, being in the city limits, covered or not, it was still in violation of the ordinance.

Holter also brought up concerns about decaying organic materials, which were on the books since the beginning of 1875, he said.

“And, this odor issue, which is a good odor to some, is a bad odor to others.

There are now ‘4-Sale’ words along all the windows at Mike Beneke’s property on the edge of Marion. Beneke recently lost a decision in court which will require him to remove the silage located at the property. Patty Decker
There are now ‘4-Sale’ words along all the windows at Mike Beneke’s property on the edge of Marion. Beneke recently lost a decision in court which will require him to remove the silage located at the property. Patty Decker

“Mr. Beneke ended his defense on the economic stake he has in this, and I am sympathetic to that, but I think I need to make the decision on whether there’s been a violation of the health nuisance code,” Pankratz said.

“And, I think there has been.”

Pankratz said he would make a written finding and the statutory setup anticipated is that Beneke would be allowed 10 days to remove the silage material.

Removal ‘tall order’

Beneke said removing the silage would be an extremely tall order.

But, Pankratz said, in the fullness of the circumstances, I don’t think this material should have been put where it was put to begin with.

Pankratz added that it was “crystal clear” to him that from those who testified for the city, that the standard was that this is offensive.

Beneke then asked Pankratz if he had 14 days to appeal the verdict.

“Actually, when I looked at this statute, I saw no basis for appeal,” Robson said.

Pankratz agreed, but added that Beneke could get in touch with his counsel and they could do their own reading of this.

“I read that this hearing results in a finding, and then is put in writing specifying the violating condition to exist and amount of time thereafter the removal must be made,” he said.

The ordinance goes on to state what is a proceeding for which there could be fines and incarceration.

In other words, Pank­ratz said, if the city does the abatement and hauling it away, in the end, the cost of doing that could be assessed against the property and become a lien, in addition to penalties of up to $100 a day and 30 days in jail for each violation.

“I am making an order, and ordering the material be removed or abated within 10 days,” he said.

The 10-day deadline began Aug. 30 after the order was written.

“The clock starts running that day,” Pankratz added.

The silage is located at the former Straub International building, 601 W. Main St.