Elliott v. Board of County Com'rs, 23425.

Decision Date17 August 2005
Docket NumberNo. 23425.,23425.
Citation703 N.W.2d 361,2005 SD 92
PartiesBenjamin ELLIOTT, Petitioner and Appellant, v. BOARD OF COUNTY COMMISSIONERS OF LAKE COUNTY, South Dakota, Respondent and Appellee, and Lake Madison Development Association, and Larry and Judy Lund, et al., Lake County Residents and Property Owners, Intervenors and Appellees.
CourtSouth Dakota Supreme Court

Brian J. Donahoe of Cutler & Donahoe, LLP, Sioux Falls, South Dakota, Attorneys for petitioner and appellant.

Chris S. Giles, Lake County State's Attorney, Madison, South Dakota, Attorneys for respondent and appellee Lake County Board of Commissioners.

Debra S. Sittig of Myers, Peters, Hoffman, Billion & Pfeiffer, Sioux Falls, South Dakota, Attorneys for intervenors and appellees Lake Madison Development, et al.


[¶1.] This appeal is from the trial court's review of the decision of the Lake County Board of Commissioners to deny a building permit application for a hog confinement facility. The trial court affirmed the denial. Because we question whether the trial court had jurisdiction, we remand to the trial court.

Facts and Procedural Background

[¶2.] In early 2001, Benjamin Elliott began plans to construct and operate a hog farrowing facility on his property in Lake County, South Dakota. Lake County Zoning Ordinances required a conditional use permit for all concentrated animal feeding operations of over 500 animal units.1 Operations for fewer than 500 animal units were permitted without a conditional use permit. Initially, Elliott submitted and the County denied a conditional use permit for a 750-animal unit facility. After the County's denial, Elliott scaled down his plan. He decided, instead, to construct a high-rise facility which would accommodate fewer than 500 animal units. Since his plan involved fewer than 500 animal units, he was not required to seek a conditional use permit from the County. He did, however, need a building permit for the new building.

[¶3.] The Lake County Zoning Officer [Officer] responsible for issuing county building permits acknowledged receipt of Elliott's completed application for the high-rise building on August 31, 2001. Her handwritten receipt addressed to Elliott on August 31, 2001 stated:

Received from Mr. Elliott complete plan w/all of the items needed to fulfill item # 2 in Section 802 — Article VIII of the Lake Co. Zoning Book. This is in regards to the application for "Class E" Animal Confinement Unit.

She also testified at trial that Elliott's application had met all building permit requirements and that normally she would have issued the permit. She, however, neither approved nor denied his application despite her acknowledgment that it met all the regulatory requirements. Instead, she deferred Elliott's application to the Lake County Board of Commissioners (Commissioners). She explained that she deferred to the Commissioners (1) because she had reservations about issuing the permit so quickly after the Commissioners' rejection of Elliott's similar plan, (2) because she knew that the Commissioners had discussed placing a moratorium on new animal confinement feeding operation permits, and (3) because of a letter from the Lake County State's Attorney asking her not to issue any additional building permits for the construction and development of animal feeding confinement operations. There is no dispute that she failed to act upon Elliott's application.

[¶4.] On September 4, 2001, the Commissioners placed a moratorium on the issuance of all building permits for new animal confinement operations until they made revisions to the Lake County Comprehensive Zoning Plan. At the same time, the Commissioners tabled Elliott's building permit application indefinitely.2 Ten months later in July of 2002, the Commissioners amended the comprehensive zoning plan to require a conditional use permit for all animal confinement operations in Lake County. [¶5.] On September 3, 2002, the Commissioners finally acted upon Elliott's building permit application. As part of a regularly scheduled county commission meeting, the Commissioners denied his request. The Commissioners' minutes recorded the decision as follows:

Ben Elliott and Brian Donahoe Atty presented testimony for a tabled bldg permit request for an animal confinement. Also present was Chris Giles States Atty. Deb Reinicke Zoning & fifteen concerned citizens. Mr. Elliott presented a video explaining hog confinement operations. Motion Jorgensen, second Johannsen to deny the building permit application for Ben Elliott based on the following reasons: (1) This structure does not appear to be conductive [sic] to the promotion of the overall public health, safety, morals or general welfare (2) the proximity to neighboring residences and to Lake Madison, coupled with the objections from those area residents should be taken into account. Roll call vote: Johannsen aye, Jorgensen aye, Vanhove nay, Verhey aye & Leighton aye. 4-1 vote. Motion carried.

The Commissioners consistently represented to Elliott and to the trial court that they had applied the pre-amended ordinances and had only considered Elliott's request as a request for a building permit. Elliott appealed the Commissioners' decision to circuit court.

[¶6.] Elliott entitled his pleading to circuit court, "Petition Contesting Denial of Building Permit and Notice of Appeal." The "petition" part of the pleading asked the court for relief under the authority of SDCL 11-2-61 as an appeal from a county board of adjustment. SDCL 11-2-61 provides:

Any person or persons, jointly or severally, aggrieved by any decision of the board of adjustment, or any taxpayer, or any officer, department, board, or bureau of the county, may present to a court of record a petition duly verified, setting forth that the decision is illegal, in whole or in part, specifying the grounds of the illegality. The petition shall be presented to the court within thirty days after the filing of the decision in the office of the board of adjustment.

Elliott alleged as part of his petition that the Commissioners' denial of the building permit was unlawful. He alleged as follows:

Respondent [Commissioners]' denial of Building Permit Application No. 4820 is unlawful in that it:
a. Failed to act on an appeal within a reasonable time as required by SDCL § 11-2-57;
b. Denied Building Permit Application No. 4820 for reasons unsupported by evidence, contrary to evidence presented, and otherwise acting arbitrarily and capriciously;
c. Denied Petitioner due process, equal protection of the laws, privileges and immunities, and other rights under the United States and South Dakota Constitutions, all under the color of state law, in violation of Petitioner's civil rights;
d. Exceeded the scope of Respondents lawful power to act and was otherwise taken without proper authority under applicable law; and
e. Was otherwise unlawful under SDCL Title 11, Ch. 2 and SDCL Title 7, Ch. 8.

The "appeal" portion of Elliott's pleading, entitled "Alternative Notice of Appeal," asked for relief under SDCL 7-8-27 as an appeal from the board of county commissioners. That statute provides:

From all decisions of the board of county commissioners upon matters properly before it, there may be an appeal to the circuit court by any person aggrieved upon filing a bond in the amount of two hundred fifty dollars with one or more sureties to be approved by the county auditor conditioned that the appellant shall prosecute the appeal without delay and pay all costs that he may be adjudged to pay in the circuit court. Such bond shall be executed to the county and may be sued in the name of the county upon breach of any condition therein.

SDCL 7-8-27 (emphasis added). For reasons not obvious from the record, the court proceeded to consider the case under SDCL 7-8-27 and 7-8-30 as a direct appeal from a decision of the board of county commissioners. The trial court conducted a trial de novo and reviewed the Commissioners' decision under an arbitrary and capricious standard.

[¶7.] Ultimately, the trial court affirmed the Commissioners' decision. The trial court affirmed based in part on its determination that the amended zoning ordinances applied to Elliott's application rather than the pre-amended ordinances.3 Under the amended ordinances, the facility would have required a conditional use permit. A conditional use permit required more and different criteria from those required for a building permit. Although the Commissioners conceded they had viewed the application as a building permit application under the pre-amended ordinances, the trial court proceeded to consider Elliott's application as a conditional use. However, the trial court in the alternative, also affirmed the Commissioners' decision under the building permit ordinances.

The trial court summed up its decision as follows:

The Lake County Commission[ers'] decision to deny Elliott's request for a building permit was not arbitrary or capricious, but was based upon evidence in the record. The ordinance that should have been applied was the ordinance adopted after the moratorium. However, Elliott was not entitled to the permit under the county ordinances existing at the time of his first application, at the time of his final plans submitted during the moratorium or at the time of the Commission[ers]' decision. The County Commissioner[s] applied the pre-moratorium ordinances, but its ultimate decision denying Elliott's request for a building permit for a hog confinement unit was correct and is affirmed.
Elliott's Issues on Appeal

[¶8.] Elliott claims on appeal to this Court that the essential legal issue is whether the County acted unlawfully in imposing additional conditions for a building permit beyond those specified by the Lake County Zoning Ordinances. Elliott claims (1) that his building permit application was complete and effective on August 31,...

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