In re Conditional Use Permit Denied to Meier
| Decision Date | 21 June 2000 |
| Docket Number | No. 20924, No. 20950. |
| Citation | 613 N.W.2d 523,2000 SD 80 |
| Parties | In the Matter of the CONDITIONAL USE PERMIT DENIED TO Mark MEIER for Construction of an Animal Confinement Operation on Property Located in Southwest Quarter of Section 7 and the Southwest Quarter of Section 18, Township 104 North, Range 64 West, Aurora County, South Dakota. |
| Court | South Dakota Supreme Court |
Tim R. Shattuck and Elizabeth A. Lewis of Woods, Fuller, Shultz & Smith, Sioux Falls, for appellant Mark Meier.
Thomas H. Harmon of Tieszen Law Office, Pierre, for appellee Aurora County.
[¶ 1.] Mark Meier (Meier) appeals a circuit court judgment affirming the actions of the Aurora County Board of Commissioners, sitting as the Board of Adjustment (Board), in denying his application for a conditional use permit. By notice of review the Board challenges the constitutionality of SDCL 7-8-30. We affirm in part, reverse in part and remand.
[¶ 2.] In December 1997, Aurora County farmer Mark Meier applied to the Board for a conditional use permit allowing the construction of two hog confinement facilities housing approximately 6,600 pigs. The Board conducted a public hearing on December 30, 1997, but postponed further consideration until January 20, 1998. At the January 20 meeting, Meier and the opponents of the project were allowed to speak.1 After less than an hour of discussion, the Board voted unanimously to deny the conditional use permit. In its resolution of denial the Board set forth the following reasons for its action:
[¶ 3.] Meier appealed the Board's denial of a conditional use permit to circuit court pursuant to SDCL 7-8-30. The court conducted a trial de novo on December 3 and 4, 1998. Over these two days, Meier presented numerous witnesses and pieces of documentary evidence to establish his compliance with Aurora County Zoning Ordinance § 515. Ordinance 515 sets forth the performance standards for a conditional use permit for an animal feeding operation.
[¶ 4.] At the close of Meier's case, the court granted a motion for directed verdict in favor of Aurora County. The court concluded Meier failed to establish a prima facie case as he: had not submitted a written animal waste management system plan to DENR; had not applied to DENR for coverage under the General Water Pollution Control Permit For Concentrated Swine Feeding Operations; had not obtained or applied for a storm water permit from DENR; and had not presented a nutrient management plan to the court which would assure that offensive odors and runoff would be kept to a minimum—specifically, the plan failed to address the minimization of offensive odors emanating from the hog barns.
[U]nder SDCL ch. 11-2, the South Dakota Legislature has created an entity called a county planning commission. SDCL 11-2-2. The planning commission has been authorized to prepare a comprehensive plan for the County. SDCL 11-2-11. Zoning ordinances and other controls deemed necessary are included as adjunct to and in accordance with the comprehensive plan. Id.
. See also SDCL 11-2-1(3) for the definition of "comprehensive plan."
[¶ 5.] On October 1, 1996, Aurora County adopted its zoning ordinance per SDCL ch. 11-2. The real property where Meier wishes to place his hog confinement facility is zoned as an agricultural district.
The intent of Agricultural Districts (AG) is to protect agricultural lands and lands consisting of natural growth from incompatible land uses in order to preserve land best suited to agricultural uses and land in which the natural environment should be continued and to limit residential, commercial, and industrial development to those areas where they are best suited for reasons of practicality and service delivery.
Aurora County Zoning Ordinance § 501. Meier intends to conduct an animal feeding operation,2 which is not a permitted use under § 503 but is a conditional use under § 507. "After the provisions of this Ordinance relating to conditional uses have been fulfilled, the Planning Commission [i.e., Board of Adjustment] may permit as conditional uses in Agricultural Districts (AG): 18. animal feeding operations." Aurora County Zoning Ordinance § 507. A "conditional use" is defined in the definitions portion of the Aurora County Zoning Ordinance as:
a use that would not be appropriate, generally or without restriction, throughout the zoning district, but which, if controlled as to number, area, location or relation to the neighborhood, would promote the public health, safety, welfare, morals, order, convenience, appearance, prosperity or general welfare. Such uses may be permitted in such zoning district as conditional use is made in this Ordinance.
§ 1107B is the general section dealing with conditional uses, it provides:
The Board of Adjustment shall have the power to hear and decide, in accordance with the provisions of this ordinance, requests for conditional uses or for decisions upon other special questions upon which the Board of Adjustment is authorized by this ordinance to pass; to decide such questions as are involved in determining whether conditional uses should be granted; and to grant conditional uses with such conditions and safeguards as are appropriate under this ordinance, or to deny conditional uses when not in harmony with the purpose and intent of this ordinance. A conditional use shall not be granted by the Board unless and until:
1. A written application for a conditional use is submitted, indicating the section of this ordinance under which the conditional use is sought and stating the grounds on which it is requested; [sic][.]
2. Notice of public hearing shall be given at least fifteen (15) days in advance by publication in a newspaper of general circulation. The owner of the property for which conditional use is sought or his agent shall be notified by mail.
3. A notice shall be posted in a conspicuous place on or near the property upon which action is pending. Such notice shall be not less than seventeen (17") in height and eleven (11") in width with a white background and black letters not less than one and one inch (1") in height. Such posted notice shall be so placed upon such premises that it is easily visible from the road and shall be so posted at least seven (7) days before the date of such hearing. It shall be unlawful for any person to remove, mutilate, destroy or change such posted notice prior to such hearings.
4. The public hearing shall be held. Any party may appear in person, or by agent or attorney; [sic][.] 5. The Board of Adjustment shall make a finding that it is empowered under the section of this ordinance described in the application to grant the conditional use, and that the granting of the conditional use will not adversely affect the public interest; [sic][.]
6. Before any conditional use is issued, the Board of Adjustment shall make written findings certifying compliance with the specific rules governing individual conditional uses and that satisfactory provisions and arrangement has been made concerning the following, where applicable:
§ 515 of the zoning ordinance sets forth "performance standards" for commercial feedlots and animal feeding operations and states:
a. Animal Feeding Operations shall submit animal waste management system plans and specifications for review and approval prior to construction and a Notice of Completion for a Certificate of Compliance, after construction, to the South Dakota Department of Environment and Natural Resources.
b. Prior to construction, such facilities shall obtain a storm water permit for construction activities from the South Dakota Department of Environment and Natural Resources. The storm water pollution prevention plan required by the permit must be developed and implemented upon the start of construction.
c. Animal waste facilities shall be no less that six hundred and sixty (660) feet from adjoining property lines and domestic ground and surface water supplies.
d. Applicants must present a nutrient management plan which will assure...
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...we have also said that in such an appeal, the circuit court should not sit as a one-person administrative board. In re Conditional Use Permit Denied to Meier , 2000 S.D. 80, ¶ 22, 613 N.W.2d 523, 530. And the standard of review stated in Goos RV Center v. Minnehaha County Commission , 2009 ......
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Chavis v. Yankton County, 22213.
...of the agency decision is de novo, we have cautioned the courts not to sit as a "`one man Board of Adjustment.'" See In re Conditional Use Permit Denied to Meier, 2000 SD 80, ¶ 22, 613 N.W.2d 523, 530. "Rather, the circuit court must determine whether the county commission's decision was `a......
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