Andersen v. Town of Badger, No. 25045.

CourtSupreme Court of South Dakota
Writing for the CourtKonenkamp
Citation2009 SD 61,769 N.W.2d 834
Docket NumberNo. 25045.
Decision Date15 July 2009
PartiesDonald ANDERSEN and Shirley Andersen, Petitioners and Appellants, v. TOWN OF BADGER (a municipal corporation under the laws of the State of South Dakota), Respondents and Appellees.
769 N.W.2d 834
2009 SD 61
Donald ANDERSEN and Shirley Andersen, Petitioners and Appellants,
TOWN OF BADGER (a municipal corporation under the laws of the State of South Dakota), Respondents and Appellees.
No. 25045.
Supreme Court of South Dakota.
Considered on Briefs April 27, 2009.
Decided July 15, 2009.

A.J. Swanson, Canton, SD, for petitioners and appellants.

Todd D. Wilkinson of Wilkinson & Wilkinson, DeSmet, SD, for respondents and appellees.


[¶ 1.] A Kingsbury County zoning ordinance governing the location of concentrated animal feeding operations allows local incorporated communities an option to waive distance requirements for a feeding operation. Seeking to construct such a facility near the Town of Badger, a businessperson requested that the town waive the distance requirement, and the town's board of trustees agreed. Certain residents of the town petitioned the circuit court for a writ of certiorari challenging the town's power to execute a waiver. The court denied the writ, concluding that the Town of Badger had such power. Petitioners appeal, and we affirm.


[¶ 2.] Petitioners Donald and Shirley Andersen are residents of the Town of Badger, in Kingsbury County. Under one of the county's zoning ordinances, a Class A concentrated animal feeding operation (CAFO) cannot be situated closer than four miles from buildings within incorporated municipal areas, plus 440 feet for each additional 1,000 animal units over 1,000. This distance restriction is commonly referred to as the required separation distance, or RSD. The county allowed for exceptions. The exception applicable to this case permits a CAFO to be "constructed or expanded closer than the required separation distance within the corporate

769 N.W.2d 835

limits of a city," as long as "the incorporated community approves a waiver which shall be stated in writing." Such waiver "becomes effective only after recording with the Register of Deeds."

[¶ 3.] Richard Vendrig requested a permit from Kingsbury County to build a Class A CAFO at a location about two miles southwest of the Town of Badger. Vendrig sought a waiver of the RSD from the town. Badger is a class three municipality, governed by a board of trustees. At the time Vendrig requested the waiver, the board members were Myron Andersen, Curt Holland, and Daniel Waldner. On July 21, 2008, a quorum of the town's board adopted a motion to grant Vendrig the waiver. The board's motion was issued by legal publication on August 7, 2008. On September 15, 2008, Myron Andersen, on behalf of the Town of Badger, executed a document in favor of Vendrig entitled "Waiver of Separation Distance Requirement."

[¶ 4.] On September 5, 2008, petitioners sought a writ of certiorari in circuit court. They argued that the town had no authority to give a waiver in Vendrig's favor. The court held a non-evidentiary hearing and concluded that the Town of Badger had the power to execute the waiver. The writ was denied. Petitioners appeal arguing that the court abused its discretion when it refused to issue the writ and erred when it concluded that the town had the authority to adopt the waiver.*

Analysis and Decision


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