Cordell v. Codington County

• Decision Date: 20 October 1994
• Docket Number: No. 18644,18644
• Citation: 526 N.W.2d 115
• Parties: Martin CORDELL, Appellee, v. CODINGTON COUNTY, a Political Subdivision of the State of South Dakota, Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 115

526 N.W.2d 115

Martin CORDELL, Appellee, v. CODINGTON COUNTY, a Political Subdivision of the State of

South Dakota, Appellant.

No. 18644.

Supreme Court of South Dakota.

Considered on Briefs Oct. 20, 1994.

Decided Dec. 28, 1994.

William E. Coester, Milbank, for appellee.

Roger W. Ellyson, Jr., Codington County State's Atty., Watertown, for appellant.

WUEST, Justice.

Codington County appeals the circuit court's denial of a building permit issued by the County to ATY Feeder Pigs, Inc. (ATY) allowing ATY to expand its feeder pig operation in rural Codington County. We affirm the circuit court.

FACTS

ATY Feeder Pigs, Inc. (ATY) is a corporation owned by six farmers for the express purpose of providing a hog production operation for themselves in rural Codington County. ATY has been in operation since 1975 raising pigs from farrowing to 40-lb. feeder pigs at which time the pigs are distributed back to the six individual farmers and the surplus pigs sold to Pig Improvement Corporation (PIC), a Wisconsin corporation. PIC "finishes" the pigs to approximately 220 lbs., or market weight. The farrow-to-feeder operation requires nine to twelve weeks while a farrow-to-finish operation requires five and one-half to six months. In 1982, ATY constructed a lagoon sewer system on its site and extensively remodeled existing structures to improve them. ATY did not obtain a permit for this construction.

In 1992, ATY applied for a building permit to expand its operation from a farrow-to-feeder operation to a farrow-to-finish operation. This permit was required under § 8.1 of the Codington County Zoning Ordinances. Cost of ATY's expansion, which involved construction of a new building, was estimated at $350,000. Martin Cordell, the plaintiff in this action, lives within 55 rods from the intended expansion and objected to the issuance of this building permit due to the smell of pig manure which he believed was certain to increase with the planned expansion. Cordell's residence has been at this location since 1975. ATY's application was originally denied by the Codington County Zoning Officer. ATY appealed this decision to the Codington County Board of Adjustment where its application was again denied. Finally, ATY appealed to the Codington County Board of Commissioners who issued the permit in October 1992 allowing ATY to proceed with its expansion plans.

ATY began construction and Cordell appealed to the circuit court. The circuit court found that ATY's expanded operation was a commercial feedlot according to Codington County Zoning Ordinances and, as such, could not be located anywhere within 80 rods of an established residence. The circuit court remanded the case to the Commissioners to vacate the building permit ab initio. County appeals the circuit court's decision claiming ATY is not a commercial feedlot and, in the alternative, ATY is entitled to a special exception or variance under the applicable zoning ordinances.

STANDARDS OF REVIEW

We note first our standards of review in this case. We review a trial court's findings of fact under a clearly erroneous standard. In applying this standard, we have stated "we will not disturb the court's findings 'unless they are clearly erroneous and we are, after a review of all the evidence, left with a definite and firm conviction that a mistake has been made.' " In re E.D.J., 499 N.W.2d 130, 134 (S.D.1993). If the record contains evidence to support the trial court's decision, we will not disturb a trial court's finding of fact on appeal. SDCL 15-6-52(a); McLaughlin Electric Supply v. American Empire Ins., 269 N.W.2d 766, 769 (S.D.1978). All conflicts in the evidence must be resolved in favor of the trial court's findings. Kost v. Kost, 515 N.W.2d 209, 213 (S.D.1994); In re Walter A. Gibbs, 490 N.W.2d 504, 507 (S.D.1992).

We review a trial court's conclusions of law under a de novo standard. State v. Harris, 494 N.W.2d 619, 622 (S.D.1993) (citing Rusch v. Kauker, 479 N.W.2d 496, 499 (S.D.1991)). Under this standard of review, "conclusions of law 'are given no deference by this court on appeal.' " Rusch, 479 N.W.2d at 499; Harding County v. South Dakota State Land Users Ass'n, 486 N.W.2d 263, 264 (S.D.1992); Beville v. Univ. of S.D. Bd. of Regents, 420 N.W.2d 9, 11 (S.D.1988).

ANALYSIS AND CONCLUSION

Codington County first challenges the trial court's finding of fact no. 7, which states "ATY Feeder Pigs, Inc., is a commercial venture involving the assemblage of hogs for the express purpose of preparation for market." Upon review of the evidence presented before the trial court, we are not firmly and definitely convinced the court was mistaken in its finding. ATY's articles of incorporation defines its purpose as the business of operating a feeder pig producing unit. ATY is operated by six farmers who combine and place their 480 sows onsite to raise these pigs from birth to 40 pounds, and now with the expansion plans, to 220 pounds when they are taken to market by the individual farmers. ATY contracts for the management of its operation with PIC and an employee of PIC resides with his family on ATY's premises for purposes of managing the hog production operation. ATY also sells pigs to PIC. The evidence supports the trial court's finding of fact no. 7 and, therefore, we will not disturb it on appeal. That Codington County argues only half of the pigs remain onsite after reaching 40 pounds does not change our holding in this regard.

Codington County next challenges the following conclusions of law by the trial court which we review de novo on appeal: 1) ATY is a commercial feedlot as defined by Codington County zoning regulations; 2) ATY is not entitled to a special exception under § 4.1B(8) of the zoning regulations; 3) ATY is not entitled to a variance under § 9.2D of the zoning regulations; and therefore, 4) ATY is not entitled to a building permit. We will address these challenges seriatim.

Zoning regulations are generally interpreted according to the rules of statutory construction and they may also be subject to rules of construction included in the regulations themselves. 83 Am.Jur.2d Zoning and Planning § 698 (1992). Here, the Codington County zoning regulations provide at § 2 that "certain terms and words are herein defined as follows [in the list of definitions], except where the context would plainly indicate a different intent[.]" One of the primary rules of statutory construction is to give words and phrases their plain meaning and effect. In re Petition of Famous Brands, Inc., 347 N.W.2d 882, 885 (S.D.1984) (citing Bd. of Regents v. Carter, 89 S.D. 40, 46, 228 N.W.2d 621, 625 (1975)). We have held that where the statutory language is "clear, certain and unambiguous, there is no need of statutory construction and the only function of the court is to declare the meaning of the statute as expressed." Sioux Falls Sch. Dist. v. South Dakota Subsequent Injury Fund, 504 N.W.2d 107, 110 (S.D.1993) (citing In re Appeal of AT & T Info. Sys., 405 N.W.2d 24, 27 (S.D.1987); In re Petition of Famous Brands, Inc., 347 N.W.2d at 885.)

The definition of a commercial feedlot is provided by the Codington County Zoning Regulations at § 2:

Feedlot, Commercial. A commercial venture under corporate or individual ownership involving the assemblage of livestock for the express purpose of preparation for market, and may be typified by rapid turnover of livestock, or the absence of dwelling unit, or without the association with other uses normally occurring on a farm.

This definition comports with the trial court's finding of fact no. 7, which we have already affirmed under a clearly erroneous standard of review. The meaning of terms in a zoning regulation is a question of statutory interpretation which is a matter of law for the court. 83 Am.Jur.2d Zoning and Planning § 698 (1992); Vellinga v. Vellinga, 442 N.W.2d 472, 473 (S.D.1989); Harris, 494 N.W.2d at 622. Codington County argues that ATY is an agricultural and not a commercial operation. We do not find these terms to be mutually exclusive.

Black's Law Dictionary defines commercial activity as including "any type of business or activity which is carried on for a profit." Black's Law Dictionary 270 (6th ed. 1990); Lanski v. Montealegre, 361 Mich. 44, 104 N.W.2d 772, 774 (1960) (citing City of Sioux Falls v. Cleveland, 75 S.D. 548, 553, 70 N.W.2d 62, 64 (1955)). Corpus Juris Secundum defines commercial venture as "[w]henever capital is to be laid out on any work and a risk run of profit or loss." 15A C.J.S. Commercial 3 (1967). Finally, we note the term "commercial" as used within zoning law denotes a use for profit. Kaiser v. Western R/C Flyers, Inc., 239 Neb. 624, 477 N.W.2d 557, 561 (1991); Imbergamo v. Barclay, 77 Misc.2d 188, 352 N.Y.S.2d 337, 341 (N.Y.Sup.1973). We affirm the trial court's conclusion that ATY is a commercial feedlot under the definition provided by Codington County's zoning regulations. The County, in its brief to this court, states ATY, in its expanded state, is incorporated by six farmers to manage their pigs from farrowing to finishing in preparation for market. ATY's articles of incorporation state its purpose is the business of feeder pig production. We can only assume the purpose of combining this operation for the six farmers is to decrease expenses and turn a profit. We further note the operation is not associated with any other uses normally occurring on a farm.

County's next argument is that the zoning ordinances grant an exception for locating commercial feedlots under § 4.1B(8) and ATY's permit should be granted under this exception. We have not been provided with a copy of this particular ordinance but, according to quoted material in the parties' briefs to this court, the ordinance appears to permit special exception for:

Commercial livestock feedlots, poultry, and fur farms, and dog kennels, which are not within one (1)...