Ehlebracht v. Deuel Cnty. Planning Comm'n

• Decision Date: 23 March 2022
• Docket Number: #29352
• Citation: 972 N.W.2d 464
• Parties: Garry EHLEBRACHT, Steven Greber, Mary Greber, Richard Rall, Amy Rall, and Laretta Kranz, Appellants, v. DEUEL COUNTY PLANNING COMMISSION, sitting as Deuel County Board of Adjustment, and Crowned Ridge Wind II, LLC, Appellees
• Court: South Dakota Supreme Court

972 N.W.2d 464

Garry EHLEBRACHT, Steven Greber, Mary Greber, Richard Rall, Amy Rall, and Laretta Kranz, Appellants,

v.DEUEL COUNTY PLANNING COMMISSION, sitting as Deuel County Board of Adjustment, and Crowned Ridge Wind II, LLC, Appellees,

#29352

Supreme Court of South Dakota.

CONSIDERED ON BRIEFS NOVEMBER 16, 2020

OPINION FILED March 23, 2022

A.J. SWANSON, Canton, South Dakota, Attorney for appellants.

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

MILES F. SCHUMACHER, MICHAEL F. NADOLSKI, DANA VAN BEEK PALMER of Lynn, Jackson, Shultz, & Lebrun, P.C., Sioux Falls, South Dakota, Attorneys for appellee Crowned Ridge Wind II, LLC.

SALTER, Justice

[¶1.] Crowned Ridge Wind II, LLC (Crowned Ridge) applied for a special exception permit (SEP) from the Deuel County Board of Adjustment (the Board) to construct and operate a Wind Energy System (WES) in Deuel County. Following a public hearing, the Board unanimously approved the permit. Several landowners in Deuel County sought certiorari review in circuit court. The court upheld the Board's action. The landowners appeal. We affirm.

Facts and Procedural History

[¶2.] The Deuel County Board of County Commissioners adopted the Deuel County Zoning Ordinance (the Ordinance) in 2004. The Ordinance created the Deuel County Board of Adjustment and authorized it to hear and decide requests for "special exceptions" from zoning standards, which the Ordinance defines as:

a use that would not be appropriate generally or without restriction throughout the zoning division or district, but which, if controlled as to number, area, location, or relation to the neighborhood, would promote the public health, safety, welfare, morals, order, comfort, convenience, appearance, prosperity, or general welfare. Such uses may be permitted in a ... zoning ... district as special exceptions, as specific provisions for such exceptions are made in these zoning regulations. Special exceptions are subject to evaluation and approval by the Board of Adjustment and are administrative in nature.

[¶3.] Included in the Ordinance is Section 1215, which contains the relevant provisions pertaining to WESs—a designation specifically recognized as an appropriate land use in agricultural districts when constructed under the terms of an SEP. The Ordinance requires that "[a]ll WESs shall meet or exceed standards and regulations of the Federal Aviation Administration and South Dakota State Statutes and any other agency of federal or state government with the authority to regulate WESs."

[¶4.] The Ordinance also requires certain mitigating measures and specified setbacks for the benefit of area residents and landowners who do not participate in a WES. For example, wind turbines must be located a distance of "not less than four times the height of the wind turbine" from non-participating residences and businesses. The Ordinance also requires a distance of one mile from the nearest residence located in the municipalities of Altamont, Astoria, Brandt, and Goodwin, and one and one-half miles from the city limits of Gary, Toronto, and Clear Lake (with certain exceptions). Additional requirements are included within the Ordinance for lighting, turbine spacing, electric lines, decommissioning, site restoration, height, and the appearance of the towers. The Ordinance further provides that the noise level produced by the wind turbines "shall not exceed 45 dBA^{[1 ]} ... at the perimeter of existing residences, for non-participating residences" and limits the "allowable shadow flicker^{[2 ]} at existing residences to no more than 30 hours annually."

[¶5.] On August 14, 2018, Crowned Ridge sought an SEP from the Board for the construction and operation of a WES with up to 68 wind turbines to be built on land zoned for agricultural use. Crowned Ridge included with its application form a participating property owner list, corresponding map, and a project overview, along with "maps, plans, studies, reports, and analyses," all required by the Ordinance. The application also included a sound and shadow flicker study. The Board held a public hearing on the SEP on September 20, 2018. Notice of the hearing was published in the local newspaper and provided to the affected townships of Goodwin, Rome, and Havana.

[¶6.] Garry Ehlebracht, Steven Greber, Mary Greber, Richard Rall, Amy Rall, and Laretta Kranz (the Appellants) were each present at the September 20 hearing, and most of them spoke to voice objections to the proposed WES. One Appellant expressed concerns about the noise limit and presented the Board with his acoustic consultant's concerns about the accuracy of Crowned Ridge's sound study. Another expressed unease with wind towers that might be located in areas that include wetlands, culverts and drain tile works, questioning who would fix drain tiling in the event it was damaged. Still another Appellant discussed "Wind Turbine Syndrome" and how the noise from the wind turbines would disturb his two Arabian horses. Other areas of concern included shadow flicker, less desirable views, and the potential for diminished property value and stymied community growth.

[¶7.] During the hearing, Board members asked Crowned Ridge representatives several questions relating to the Appellants’ concerns. Board members also engaged Crowned Ridge representatives on a variety of other topics relating to its SEP application, including promptness of handling complaints, liability for ice falling or being thrown from turbine blades, setbacks, studies on the effects of wind turbines on animal and human health, a bond requirement, aircraft detection lighting systems, compensation and tax revenue to the county, and the status of the permitting processes in other counties. The Board decided to postpone its decision on Crowned Ridge's SEP application until October 22, 2018.

[¶8.] The Appellants were again all present at the October 22 hearing when Board members continued their inquiry, questioning Crowned Ridge representatives on additional topics relating to the SEP application, such as the impact of the WES on livestock and fences, liability concerns, service roads, culverts, drain tile, buried electrical cable, and bridges. Also discussed were potential future additions to the WES, protocols for damaged wind turbines and damage to surrounding land, the locations of the wind turbine towers and possible changes, a decommissioning bond, and whether noise from the turbines would meet or exceed the decibel limit fixed by the Ordinance. At the conclusion of the hearing, the Board voted unanimously to approve the SEP application. The Board's chairperson subsequently signed findings of fact.

[¶9.] The Appellants sought certiorari review of the Board's approval. See SDCL 11-2-61 (stating that "[a]ny person ... aggrieved by any decision of the board of adjustment may present to a court of record ... a petition for writ of certiorari ... within thirty days after the filing of the decision in the office of the board of adjustment"). In a 34-page petition filed with the circuit court, the Appellants focused primarily on concerns about the amount of shadow flicker that would be observed on the property of non-participating landowners and noise incident to the operation of the turbines.

[¶10.] Working within the narrow scope of certiorari review, the circuit court upheld the Board's decision to grant the SEP, concluding that the Board acted within its jurisdiction and regularly pursued its authority. The court also noted in its memorandum opinion that it could not "consider many of [the] issue[s] raised in [the Appellants’] briefs" because most of their arguments implicated only their "disagreement with South Dakota's allowance of WESs, and the county's ordinance pertaining to WESs." The court observed that the Appellants’ grievances in that regard were "with the state and county legislative bodies."

[¶11.] The Appellants now appeal the circuit court's decision, raising many of the same arguments addressed in their petition to the circuit court. Generally, the Appellants argue that the Board acted illegally and without jurisdiction. They do not, however, raise a facial attack on the validity of the Ordinance or its adoption; nor do they allege any procedural irregularities in the Board's consideration or approval of the SEP. We restate the specific issues they have raised as follows:

1. Whether the Board's decision complies with SDCL 11-2-17.3.

2. Whether the Board's decision results in a "de facto easement."

3. Whether the Board's decision forecloses a future nuisance remedy.

4. Whether the Board's decision violated substantive due process.

Standard of Review

[¶12.] "The scope of judicial review in writ of certiorari proceedings is statutorily determined by SDCL 21-31-8."³

Dunham v. Lake Cnty. Comm'n , 2020 S.D. 23, ¶ 10, 943 N.W.2d 330, 333. We recently held in Dunham that the statute "limit[s] certiorari review ‘to whether the board of adjustment had jurisdiction over the matter and whether it pursued in a regular manner the authority conferred upon it.’ " Id. (quoting Wedel v. Beadle Cnty. Comm'n , 2016 S.D. 59, ¶ 11, 884 N.W.2d 755, 758 ). "The test of jurisdiction is whether there was power to enter upon the inquiry[.]" Lake Hendricks Imp. Ass'n v. Brookings Cnty. Planning and Zoning Comm'n. , 2016 S.D. 48, ¶ 26, 882 N.W.2d 307, 315 (citation omitted).

[¶13.] "With a writ of certiorari, we do not review whether the [board's] decision is right or wrong." Grant Cnty. Concerned Citizens v. Grant Cnty. Bd. of Adjustment , 2015 S.D. 54, ¶ 10, 866 N.W.2d 149, 154 (citation omitted). "Courts must not review the merits of a petition or evidence for the purpose of determining the correctness of a finding, in the absence of a showing that the Board ‘acted fraudulently or in arbitrary or willful disregard of undisputed and indisputable proof.’ " Lamar Outdoor Advert. of South Dakota,...