866 N.W.2d 149 (S.D. 2015), 27232, Grant Cnty. Concerned Citizens v. Grant Cnty. Bd. of Adjustment

Docket Nº:27232
Citation:866 N.W.2d 149, 2015 SD 54
Opinion Judge:GILBERTSON, Chief Justice.
Party Name:GRANT COUNTY CONCERNED CITIZENS and TIMOTHY A. TYLER, Plaintiffs and Appellants, v. GRANT COUNTY BOARD OF ADJUSTMENT, THOMAS ADLER, LORELEI BRANDT, DAVID FORRETTE, RICHARD HANSEN, NANCY JOHNSON, GARY LINDEMAN, DOUG STENGEL, GEOFF STREET, and TETON, LLC, Defendants and Appellees
Attorney:MITCHELL A. PETERSON of Davenport, Evans, Hurwitz & Smith, LLP, Sioux Falls, South Dakota, Attorneys for plaintiffs and appellants. ZACHARY W. PETERSON, JACK H. HIEB of Richardson, Wyly, Wise, Sauck & Hieb, LLP, Aberdeen, South Dakota, Attorneys for defendants and appellees Grant County Board of ...
Judge Panel:GILBERTSON, Chief Justice. ZINTER, SEVERSON, WILBUR, and KERN, Justices, concur. ZINTER, SEVERSON, WILBUR, and KERN, Justices, concur.
Case Date:June 24, 2015
Court:Supreme Court of South Dakota
 
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Page 149

866 N.W.2d 149 (S.D. 2015)

2015 SD 54

GRANT COUNTY CONCERNED CITIZENS and TIMOTHY A. TYLER, Plaintiffs and Appellants,

v.

GRANT COUNTY BOARD OF ADJUSTMENT, THOMAS ADLER, LORELEI BRANDT, DAVID FORRETTE, RICHARD HANSEN, NANCY JOHNSON, GARY LINDEMAN, DOUG STENGEL, GEOFF STREET, and TETON, LLC, Defendants and Appellees

No. 27232

Supreme Court of South Dakota

June 24, 2015

Considered on Briefs: March 26, 2015.

Page 150

[Copyrighted Material Omitted]

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APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT GRANT COUNTY, SOUTH DAKOTA. THE HONORABLE ROBERT L. TIMM, Judge.

Affirmed.

MITCHELL A. PETERSON of Davenport, Evans, Hurwitz & Smith, LLP, Sioux Falls, South Dakota, Attorneys for plaintiffs and appellants.

ZACHARY W. PETERSON, JACK H. HIEB of Richardson, Wyly, Wise, Sauck & Hieb, LLP, Aberdeen, South Dakota, Attorneys for defendants and appellees Grant County Board of Adjustment and its individual members.

JAMES S. SIMKO of Cadwell, Sanford, Deibert & Garry, LLP, Sioux Falls, South Dakota, Attorneys for defendant and appellee Teton, LLC.

GILBERTSON, Chief Justice. ZINTER, SEVERSON, WILBUR, and KERN, Justices, concur.

OPINION

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GILBERTSON, Chief Justice.

[¶1] Grant County Concerned Citizens (GCCC) and Timothy A. Tyler (Tyler) appeal the circuit court's affirmance of the Grant County Board of Adjustment's1 (the Board) decision to approve Teton LLC's application for a conditional use permit to construct a concentrated animal feeding operation (CAFO). GCCC2 asserts that Teton's proposed project violates the Zoning Ordinance for Grant County (the ZOGC) and that, consequently, the Board's decision was illegal. GCCC also appeals the circuit court's order striking Tyler's affidavit from the record. We affirm.

Facts and Procedural History

[¶2] On December 18, 2012, Teton filed an application with the Grant County zoning officer for a conditional use permit to construct and operate a Class A CAFO in Grant County. In the application, which was available for public review, Teton indicated that the CAFO would house 6,616 swine larger than 55 pounds (referred to as " finisher" swine in the ZOGC) and 1,200 swine smaller than 55 pounds (referred to as " nursery" swine in the ZOGC).

[¶3] The Board scheduled a hearing for January 14, 2013, to consider Teton's application. In compliance with section 504(2) of the ZOGC, Grant County's zoning officer published notice of the hearing " once ten (10) days prior to the hearing in a paper of general circulation in the area affected." The published notice mistakenly reversed the number of finisher and nursery swine listed in the application, instead reporting the CAFO would house no more than 6,616 swine smaller than 55 pounds and 1,200 swine larger than 55 pounds. However, the published notice did indicate the correct number of total swine and that the CAFO was categorized as a Class A CAFO--the largest classification, consisting of 2,000 or more " animal units." 3

[¶4] The scheduled hearing took place on January 14, 2013. The Board addressed the error in the published notice at the beginning of the hearing, but the record does not indicate that any concerns

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were raised or objections noted at that time. Approximately 200 people attended the hearing. After Teton presented its information to the Board and answered questions from the Board's members, the Board opened the hearing to public comment. Every member of the public present who wished to comment--whether an opponent or a proponent--was allotted five minutes to speak. Although Teton anticipated using a road jointly maintained by Melrose and Big Stone Townships, it failed to directly notify Melrose Township of the hearing. Nevertheless, at least one individual who spoke at the hearing indicated the Township was aware of the hearing and had discussed the proposed CAFO.

[¶5] Opponents of the application, including Kathy Tyler (Tyler's wife) and other members of GCCC, raised several substantive concerns with Teton's application. Mrs. Tyler informed the Board that if Teton's application was approved, the CAFO would be located--in violation of the ZOGC--within 2,640 feet of a newly constructed well on the Tyler property. In response, one of Teton's representatives speculated that the Tylers dug the " well" merely to frustrate Teton's application. The record does include a facsimile of a South Dakota water well completion report that indicates the Tylers' excavation was completed on December 18, 2012--the same day Teton submitted its application for the conditional use permit. The facsimile itself was generated on December 19, and the report was completed by the firm that dug the excavation. Although the excavation produced 12 gallons of water on December 18, the report does not indicate when the excavation began or how long it was in operation before producing the 12 gallons.

[¶6] GCCC also asserted a number of other deficiencies in Teton's application. GCCC claimed Teton's manure management and operation plan identified an insufficient number of acres for the disposal of manure produced by the CAFO. It further claimed Teton " failed to demonstrate the ability to obtain [sufficient] amounts of water from Grant-Roberts Rural Water System." GCCC also alleged Teton misrepresented: that independent farmers were involved with the CAFO, that the principals of the CAFO operating entity had no stake in the CAFO venture, and that the proposed site is located in a sparsely populated area. Finally, GCCC raised a number of environmental and economic concerns. The Board ultimately determined that the Tylers' excavation was not a " well" within the meaning of the ZOGC setback requirement and approved Teton's application.

[¶7] GCCC appealed to the circuit court, which initially held that SDCL chapter 11-2 violated the South Dakota Constitution's Equal Protection Clause by applying de novo review to the appeals of some county decisions on conditional use permits and certiorari review to others. We reversed on appeal, having recently reversed another circuit court decision on the same issue. Under the subsequent certiorari review, the circuit court agreed that the excavation dug on the Tylers' property was not a well within the meaning of the setback because it was dug for the purpose of frustrating the application rather than for obtaining groundwater. The court concluded the Board had jurisdiction over Teton's application and pursued its authority in a regular manner.

[¶8] Nearly three weeks after the circuit court sent its letter of decision to the parties, but prior to the entry of judgment, GCCC submitted an affidavit signed by Tyler explaining the purpose of the excavation was to obtain water for his horse herd. The Board and Teton moved to

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strike the affidavit from the record. The circuit court granted the motion.

[¶9] GCCC appeals, raising two issues:

1. Whether the Board regularly pursued its authority in granting Teton's application for a conditional use permit.

2. Whether the circuit court erred in striking Tyler's affidavit.

Standard of Review

[¶10] Our review of a board of adjustment's decision is limited. " Any person . . . aggrieved by any decision of the board of adjustment . . . may present to a court of record a petition . . . setting forth that the decision is illegal, . . . specifying the grounds of the illegality." SDCL 11-2-61. " Upon the presentation of the petition, the court may allow a writ of certiorari directed to the board of adjustment to review the decision . . . ." SDCL 11-2-62. " The review upon writ of certiorari cannot be extended further than to determine whether the . . . board . . . has regularly pursued [its] authority . . . ." SDCL 21-31-8. " With a writ of certiorari, we do not review whether the [board's] decision is right or wrong." Duffy v. Cir. Ct., 7th Jud. Cir., 2004 S.D. 19, ¶ 33, 676 N.W.2d 126, 138. " A board's actions will be sustained unless it did some act forbidden by law or neglected to do some act required by law." Jensen v. Turner Cnty. Bd. of Adj't, 2007 S.D. 28, ¶ 4, 730 N.W.2d 411, 413 (quoting Elliott v. Bd. of Cnty. Comm'rs, 2005 S.D. 92, ¶ 14, 703 N.W.2d 361, 367).

Analysis and Decision

[¶11]1. Whether the Board regularly pursued its authority in granting Teton's application for a conditional use permit.

[¶12] GCCC asserts the Board did not regularly pursue its authority in a number of ways. First, GCCC asserts it presented " indisputable proof" to the Board that a private well existed within the setback distance prohibited by the ZOGC. Second, GCCC asserts Teton's manure management and operation plan did not comply with the ZOGC. Third, GCCC asserts Teton failed to give notice to Melrose Township. Fourth, GCCC asserts Teton's nutrient management plan was deficient. Fifth, GCCC asserts it was denied due process because: (1) it did not receive adequate notice, (2) the Board and the County zoning officer prevented it from making copies of Teton's application, and (3) the Board imposed a five-minutes-per-person limitation on public comments. Sixth, GCCC asserts the Board's decision was based on fraudulent information. Seventh, and finally, GCCC asserts the Board failed to consider the " environmental, community, and economic impacts Teton's CAFO will have."

Private well

[¶13] GCCC asserts the ZOGC " unambiguously precluded the Board from granting a [conditional use permit]" to Teton because of the presence of a well within 2,640 feet of the proposed CAFO. Section 1304(6) of the ZOGC generally requires any new CAFO to be at least 2,640 feet away from any private well. The ZOGC does not seem to provide a definition for the word well. Instead...

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