CONDITIONAL USE PERMIT GRANTED TO VAN ZANTEN

• Decision Date: 30 June 1999
• Docket Number: No. 20632., No. 20596
• Parties: In the Matter of the CONDITIONAL USE PERMIT GRANTED TO Greg VAN ZANTEN for Expansion of An Animal Confinement Operation On Property Located In section 36, Township 105, Range 52, Lake County, South Dakota.
• Court: South Dakota Supreme Court

598 N.W.2d 861

1999 SD 79

In the Matter of the CONDITIONAL USE PERMIT GRANTED TO Greg VAN ZANTEN for Expansion of An Animal Confinement Operation On Property Located In section 36, Township 105, Range 52, Lake County, South Dakota.

Nos. 20596, 20632.

Supreme Court of South Dakota.

Argued January 12, 1999

Decided June 30, 1999.

Mark V. Meierhenry of Danforth, Meierhenry & Meierhenry, Sioux Falls, for appellant Van Zanten.

Chris S. Giles, Lake County State's Atty., Madison, for appellee Lake County.

Tim R. Shattuck and Elizabeth A. Lewis of Woods, Fuller, Shultz & Smith, Sioux Falls, for appellees Anthony and Brenda Miller.

AMUNDSON, Justice.

[¶ 1.] Greg and Bev Van Zanten appeal from the circuit court's decision denying a conditional use permit to construct a hog-finishing unit. We reverse and remand for proceedings consistent with this decision.

FACTS

[¶ 2.] In the summer of 1997, Van Zantens applied to the Lake County Board of Commissioners (County) for a conditional use permit to construct a hog-finishing unit. The building was to house 1,000 to 1,100 hogs and be constructed adjacent to an existing structure already being used for that purpose. A hearing was held on the matter and, on August 19, 1997, the permit was approved by the County.

[¶ 3.] Adjoining property owners, Anthony and Brenda Miller, appealed the decision approving the permit to circuit court. On January 6, 1998, the matter was heard by the circuit court. In this first hearing, it came to the attention of the court that the legal description of the property as it was officially listed in the newspaper was incorrect. Van Zantens did not intend to construct the hog-finishing unit on the property described on the permit,¹ but intended to build the unit 150 feet north of an existing unit on property adjacent to the property described in the permit.² Both parties agreed there was an error in the legal description of the property, but all parties knew where the proposed building was to be built. The circuit court ordered the matter reversed and remanded back to the County for an accurate legal description. The court indicated once the legal description was accurate it would take the case back up. The court ordered proceedings be continued, pending further action by the County.

[¶ 4.] While this matter was pending, on December 16, 1997, the County voted and approved amended zoning regulations which would require any concentrated animal feeding operation to be located at least 1,320 feet from established residences. Notice of the amendments was published December 31, 1997. The amendments became effective twenty days later, on January 20, 1998.

[¶ 5.] After the January 6, 1998, hearing, Van Zantens again appeared before the County, this time with the correct legal description. The day the amendments went into effect, January 20, 1998, County met and approved Van Zantens' application for a conditional use permit. The County approved the permit under the regulations applicable at the time of the original application, rather than the recent amendments.

[¶ 6.] The circuit court conducted the continued hearing on April 14, 1998.³ While the court agreed with County that under the old regulations a hog-confinement unit did not constitute a feedlot, the court determined that County was required to apply the amended regulations that went into effect January 20, 1998. Under these new zoning provisions, the conditional use permit could not be granted. Therefore, the court reversed the granting of the permit. Van Zantens appeal, raising the following issues:

1. Whether the circuit court erred in applying the amended Lake County Zoning Ordinance when it reviewed Van Zantens' application for a conditional use permit.

2. Whether the circuit court erred in concluding that the amended zoning ordinance was a valid exercise of the County's power.

By notice of review, Millers raise the following issues:

3. Whether the circuit court erred in ruling that Van Zantens' proposed use was not a feedlot under the old ordinances.

4. Whether the circuit court erred in refusing to award costs and disbursements to Millers as the prevailing parties.

STANDARD OF REVIEW

[¶ 7.] SDCL 7-8-30 provides that appeals from a decision of a county commission "shall be heard and determined de novo." The de novo standard means, " `the circuit court should determine anew the question ... independent of the county commissioner's decision.'" Schrank v. Pennington County Bd., 1998 SD 108, ¶ 15, 584 N.W.2d 680, 682 (quoting Sioux Valley Hosp. Ass'n v. Jones County, 309 N.W.2d 835, 837 (S.D.1981)).

[¶ 8.] This Court reviews the circuit court's findings of fact for clear error and its legal conclusions de novo. Tri County Landfill v. Brule County, 535 N.W.2d 760, 763 (S.D.1995). The construction of a statute or ordinance is a question of law. Vellinga v. Vellinga, 442 N.W.2d 472, 473 (S.D.1989).

DECISION

[¶ 9.] 1. Whether the circuit court erred in applying the amended Lake County Zoning Ordinance when it reviewed Van Zantens' application for a conditional use permit.

[¶ 10.] The circuit court ruled the amended regulations that went into effect January 20, 1998, were to be applied. The court reasoned that the law to be applied in a zoning case is the law in effect at the time that a decision on an application is made, rather than the law in effect at the time an application was filed. MacDonald Advertising Co. v. McIntyre, 211 Mich. App. 406, 536 N.W.2d 249, 251 (1995); National Advertising Co. v. Downers Grove, 204 Ill.App.3d 499, 149 Ill.Dec. 604, 561 N.E.2d 1300, 1304 (2 Dist.1990); Fairmount Township Bd. of Supervisors v. Beardmore, 431 N.W.2d 292, 294-95 (N.D. 1988); Ward v. Village of Ridgewood, 531 F.Supp. 470, 472 (D.N.J.1982). One recognized exception is where a landowner proves he has acquired a vested right in the prior zoning regulation by having made substantial expenditures in good-faith reliance. Roland F. Chase, Annotation, Retroactive Effect of Zoning Regulation, in Absence of Saving Clause, on Pending Application for Building Permit, 50 A.L.R.3d 596, 602 (1973). The circuit court concluded that Van Zantens failed to meet this "vested rights" exception, therefore, the amendments in effect on the date of the January 20, 1998, hearing governed. We disagree with the circuit court's resolution of this matter. The present case involves a unique procedural situation, which is materially distinguishable from the case law cited. We determine this procedural wrinkle is the controlling issue and mandates application of the ordinances and regulations first appealed from.

[¶ 11.] The circuit court reversed and remanded the matter to County for the purpose of correcting the flaw in the legal description, and continued the appeal.⁴ The remand was for the limited purpose of correcting a technical flaw in the legal description. The court also indicated it would be helpful if, on remand, the County would enter more specific findings as to the ultimate issue whether the proposed building was a hog-confinement issue or feedlot under the zoning ordinance. The remand was thus limited in scope and was not for the purpose of retrying the case under any new ordinances.⁵

[¶ 12.] "The decision to remand lies within the judicial discretion of the trial court and our review is whether it abused that discretion." In re Beaver Lake, 466 N.W.2d 163, 167 (S.D.1991) (citing Matter of State & City Sales Tax Liability, 437 N.W.2d 209 (S.D.1989)). A court may remand to an agency for further proceedings. SDCL 1-26-36. "Moreover, a court may limit the scope of remand." Cheyenne River Sioux Tribe v. PUC, 1999 SD 60, ¶ 54, 595 N.W.2d 604, (citing Public Util. Comm'n v. GTE-SW, 833 S.W.2d 153, 175 (Tex.App.1992); Warren v. Department of Admin., 590 So.2d 514, 515 (Fla.App. 2 Dist. 1991)).

[¶ 13.] When the scope of remand is limited, the entire case is not reopened, but rather, the lower tribunal is only authorized to carry out the appellate court's mandate. 5 AmJur2d Appellate Review § 787 (1995). Thus, the "vacation of a judgment and remand of the case on one error question does not reopen the whole case for reconsideration of all issues that have arguably been changed by the enactment of new state laws in the interim." Id. See also Robinson v. Ariyoshi, 854 F.2d 1189, 1190 (9thCir.1988)

(where the decision to remand a water rights case on one narrow question did not reopen the whole case for reconsideration of all issues that arguably had been changed by state law in the interim).

[¶ 14.] The circuit court remanded this case on a technical issue to correct an error in the legal description of the property and for more specific findings relating to the definition of feedlot. No reapplication was required; in fact, the application fee was not required to be paid again. Under the record of this case, the law in effect was the ordinances and regulations that were at issue on the date notice of appeal was filed, September 17, 1997. Requiring application of a new ordinance, which was adopted in the interim, went beyond the scope of the remand.

[¶ 15.] 2. Whether the circuit court erred in ruling that Van Zantens' proposed use was not a feedlot under the old ordinances.

[¶ 16.] Because we conclude County properly proceeded under the old ordinances, the issue arises whether the proposed construction of the hog-confinement building constitutes a "feedlot" for purposes of Lake County's zoning ordinances.

[¶ 17.] Pursuant to the ordinance in effect, feedlots may not be permitted as a conditional use within 1,320 feet of a residence and not within 330 feet of a federal, state or township highway. Lake County Zoning Regulations, Art. XI, § 1101. Millers argue this hog-confinement unit is a "feedlot" and, thus, could not be built in the location proposed. Pursuant to ordinance, a "feedlot" is defined as:

[A] parcel of land whereon there is contained an operation of feeding or raising animals in excess of

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