891 N.W.2d 377 (S.D. 2017), 27884, Adolph v. Grant County Board of Adjustment

Docket Nº:27884
Citation:891 N.W.2d 377, 2017 SD 5
Opinion Judge:GILBERTSON, Chief Justice
Party Name:GERALDINE ADOLPH and BARTH ADOLPH, Plaintiffs and Appellants, v. GRANT COUNTY BOARD OF ADJUSTMENT and DUSTIN NELSON, Defendants and Appellees
Attorney:MITCHELL A. PETERSON of Davenport, Evans, Hurwitz & Smith, LLP, Sioux Falls, South Dakota, Attorneys for appellants. JACK H. HIEB, ZACHARY W. PETERSON of Richardson, Wyly, Wise, Sauck & Hieb, LLP, Aberdeen, South Dakota, Attorneys for appellee Grant County Board of Adjustment. BRIAN J. DONAHOE of...
Judge Panel:ZINTER, SEVERSON, WILBUR, and KERN, Justices, concur.
Case Date:March 01, 2017
Court:Supreme Court of South Dakota
SUMMARY

Dustin Nelson filed an application for a conditional-use permit to construct and operate a concentrated animal-feeding operation in Grant County. The Grant County Board of Adjustment voted to approve the application. Geraldine and Barth Adolph petitioned the circuit court for a writ of certiorari to review the legality of the Board’s decision. The circuit court affirmed. The Adolphs appealed,... (see full summary)

 
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Page 377

891 N.W.2d 377 (S.D. 2017)

2017 SD 5

GERALDINE ADOLPH and BARTH ADOLPH, Plaintiffs and Appellants,

v.

GRANT COUNTY BOARD OF ADJUSTMENT and DUSTIN NELSON, Defendants and Appellees

27884

Supreme Court of South Dakota

March 1, 2017

Considered on Briefs January 11, 2017

APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT GRANT COUNTY, SOUTH DAKOTA. THE HONORABLE VINCENT A. FOLEY, Judge.

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

JACK H. HIEB, ZACHARY W. PETERSON of Richardson, Wyly, Wise, Sauck & Hieb, LLP, Aberdeen, South Dakota, Attorneys for appellee Grant County Board of Adjustment.

BRIAN J. DONAHOE of Donahoe Law Firm, P.C., Sioux Falls, South Dakota, Attorney for appellee Dustin Nelson.

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

OPINION

GILBERTSON, Chief Justice

[¶1] Geraldine and Barth Adolph appeal the circuit court's affirmance of the Grant County Board of Adjustment's decision to approve Dustin Nelson's application for a conditional-use permit to construct a concentrated animal-feeding operation (CAFO). Adolphs argue that Nelson's proposed project violates the Zoning Ordinance for Grant County (the ZOGC) and that consequently, the Board's decision was illegal. Adolphs also argue Nelson presented a new waste-disposal plan at the public hearing, denying them an opportunity to voice their concerns. Finally, Adolphs claim the Board was biased against their expert. We affirm in part, reverse in part, and remand.

Facts and Procedural History

[¶2] On March 24, 2015, Nelson filed an application for a conditional-use permit to construct and operate a Class A CAFO in Grant County. In the application, Nelson indicated the proposed CAFO would be a dairy operation consisting of 5,500 head of cattle. The Board scheduled a hearing for May 11, 2015, to consider Nelson's application. It published notice in a paper of general circulation in Grant County for two weeks prior to the hearing.

[¶3] At the hearing, Nelson presented information in support of his application through his attorney; his engineer, Brian Friedrichsen of Dakota Environmental; and his developer, Arjan Blok. After Nelson's presentation, the Board opened up the hearing to public commentary. The Board allotted 10 minutes to every person who wished to speak. A number of individuals, including Geraldine and her attorney, spoke in opposition to the CAFO. Additionally, opponents submitted a 250-page report authored by Kathy Martin, an engineer from another state.1 One opponent used her allotted time to discuss Martin's report, walking the Board through several of Martin's criticisms. Adolphs' attorney also discussed Martin's credentials and report. He prepared a three-page " lay summary" for the Board covering the highlights of Martin's report.

[¶4] Opponents of the proposed CAFO raised substantive concerns with Nelson's application. In her report, Martin concluded that Nelson's application failed to explain how silage leachate2 would be captured and disposed of at the proposed CAFO. Several opponents also addressed this concern in comments at the hearing. In response, after the time for public comment, the Board asked for clarification. Friedrichsen explained that leachate and other waste waters would be collected and stored in waste-water ponds on site. Opponents also focused on past environmental violations of A.J. Bos, the individual that Adolphs allege will actually operate the CAFO. Opponents also asserted that Nelson's nutrient-management plan claimed manure-application agreements for acres already under contract.

[¶5] The Board ultimately voted to approve Nelson's application by a 5-2 vote. The Board conditioned approval on Nelson obtaining all applicable state permits. It also required Nelson to obtain approval from the South Dakota Department of Environment and Natural Resources (DENR) for his nutrient-management plan. Additionally, the Board adopted one of Martin's suggestions and required Nelson to install a synthetic liner in the waste-water ponds. Adolphs petitioned the circuit court for a writ of certiorari to review the legality of the Board's decision. The circuit court granted the writ but affirmed.

[¶6] Adolphs appeal, raising three issues: 1. Whether the Board regularly pursued its authority in granting Nelson's application for a conditional-use permit.

2. Whether Nelson presented a new plan for the disposal of leachate during the hearing, denying Adolphs an opportunity for meaningful participation.

3. Whether the Board exhibited bias requiring a new hearing.

Standard of Review

[¶7] " Our review of a board of adjustment's decision is limited." Grant Cty. Concerned Citizens v. Grant Cty. Bd. of Adj't, 2015 SD 54, ¶ 10, 866 N.W.2d 149, 154. " 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." Grant Cty. Concerned Citizens, 2015 SD 54, ¶ 10, 866 N.W.2d at 154 (quoting Duffy v. Cir. Ct., 7th Jud. Cir., 2004 SD 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." Id. (quoting Jensen v. Turner Cty. Bd. of Adj't, 2007 SD 28, ¶ 4, 730 N.W.2d 411, 413). However, " certiorari will not lie to review technical lack of compliance with law or be granted to correct insubstantial errors which are not shown to have resulted in prejudice or to have caused substantial injustice[.]" State ex rel. Johnson v. Pub. Utils. Comm'n of S.D., 381 N.W.2d 226, 230 (S.D. 1986); 14 Am.Jur.2d Certiorari § 14, Westlaw (database updated February 2017).

Analysis and Decision

[¶8]1. Whether the Board regularly pursued its authority in granting Nelson's application for a conditional-use permit.

[¶9] Adolphs argue the Board did not regularly pursue its authority in a number of ways. First, they contend the proposed CAFO will significantly contribute to pollution in violation of the ZOGC. Second, they contend the Board failed to consider the prevailing winds at the site of the proposed CAFO. Third, they contend the Board failed to consider Bos's alleged environmental violations. Fourth, they contend the Board failed to consider increasing setbacks. Fifth, they contend the Board double counted manure easements and that Nelson's nutrient-management plan is therefore insufficient. Sixth and finally, they contend the Board failed to exercise independent judgment.

Contribution to pollution

[¶10] Adolphs contend the CAFO will significantly contribute to pollution. Section 278 of the ZOGC enumerates several factors that the Board is required to consider in determining whether a proposed CAFO is likely to be a significant contributor of pollution: 1. Size of feeding operation and amount of manure reaching waters of the state;

2. Location of the feeding operation in relation to waters of the state;

3. Means of conveyance of manure and process wastewater into waters of the state; and

4. The slope, vegetation, rainfall and other factors affecting the likelihood or frequency of discharge of animal wastes and process wastewater into waters of the state.

Adolphs assert that Nelson's application and engineering report " fail[] to explain how runoff from the CAFO will be managed" and that " Nelson did not . . . address the issue of runoff in his initial presentation to the Board." Thus, Adolphs conclude the Board's " fail[ure] to cite to a single page of the report addressing this issue . . . is a fatal omission."

[¶11] Adolphs are incorrect. Nelson's application addresses...

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