Miles v. Spink Cnty. Bd. of Adjustment, #29258

CourtSupreme Court of South Dakota
Writing for the CourtKERN, Justice
Citation972 N.W.2d 136
Parties Preston MILES, Plaintiff and Appellant, v. SPINK COUNTY BOARD OF ADJUSTMENT, Defendant and Appellee.
Docket Number#29258
Decision Date16 March 2022

972 N.W.2d 136

Preston MILES, Plaintiff and Appellant,


Supreme Court of South Dakota.

OPINION FILED March 16, 2022

JEREMY LUND of Siegel, Barnett & Schutz, LLP, Aberdeen, South Dakota, Attorneys for plaintiff and appellant.

JACK H. HIEB, ZACHARY W. PETERSON of Richardson, Wyly, Wise, Sauck & Hieb, LLP, Aberdeen, South Dakota, Attorneys for defendant and appellee.

KERN, Justice

¶1.] Arrow Farms RE, LLC (Arrow Farms) applied for a conditional use permit (CUP)1 from the Spink County Board of Adjustment (Board) for a concentrated animal feeding operation (CAFO). Preston Miles owned the land where Arrow Farms planned to build the CAFO, and he was to be its general manager. Following a public hearing, the Board denied the CUP. Miles petitioned the circuit court for a writ of certiorari, alleging that the Board's decision was arbitrary and that several members of the Board were biased or held an unreasonable risk of bias, which should have disqualified them from voting on the CUP. Prior to the hearing on the writ, Miles deposed each Board member. He moved the circuit court to admit their depositions into evidence, which the court denied. Prior to the hearing on the writ, Miles sought permission from the court to call the Board members to testify in person at the hearing. The circuit court also denied this request. After determining that none of the Board members had a disqualifying interest, the court affirmed the Board's decision to deny the CUP. Miles appeals, and we affirm.


[¶2.] Miles owns agricultural land in Spink County, South Dakota. Prior to April 2018, Miles began planning with Arrow Farms to build a CAFO to feed and develop swine on his property. Arrow Farms chose Miles's land as the site for the CAFO because it met all the setback requirements in the local ordinances. Arrow Farms also designated Miles to serve as the prospective manager of the CAFO's operations and its 18 employees.2

[¶3.] Because Miles's land was located within an agricultural district, Arrow Farms was required by Spink County Ordinance § 17.0704(1) to obtain a CUP from the Board to build the CAFO.3 Pursuant to SDCL 11-2-60, the Board was composed of the five Spink County Commissioners: Dave Albrecht, Suzanne Smith, Craig Johnson, Jeff Albrecht, and Cindy Schultz. Under Spink County's ordinances, the Board could grant or deny a CUP following a public hearing.4 During its approval

[972 N.W.2d 141

process, Spink County's CAFO regulations required the Board to examine whether the CAFO was "sufficiently separated from other land uses so as not to unreasonably interfere with or burden the enjoyment of other neighboring lands, consistent with the policy established under this Ordinance." Spink County Zoning Ordinance, App. D, CAFO Regulations (Oct. 2017).

¶4.] In order to assist with the preparation and delivery of the CUP application to the Board, Arrow Farms engaged Pipestone, an organization that provides veterinarian, consulting, and management services to CAFOs. In early 2018, Arrow Farms applied for the CUP, and the Board scheduled a public hearing for April 10, 2018 (April hearing).5 According to the minutes from the hearing,6 Dr. Barry Kerkaert, a consulting veterinarian from Pipestone, and Bradley Woerner with Stockwell Engineers presented the details of the project to the Board.

[¶5.] The minutes reflect that the proposed CAFO planned to develop 324 head of swine under 55 pounds and 7,404 head over 55 pounds from farrow to finish.7 As a by-product, the CAFO would produce manure, which Arrow Farms planned to store in an underground pit and make available for fertilization of area fields. The proposal included the promise to buy feed locally for livestock production. Arrow Farms projected that the CAFO would use approximately 30,000 gallons of water per day, requiring a state water permit. It also provided the Board with a Letter of Assurances promising to maintain setbacks, refrain from polluting, protect ground water and aquifers, avoid damaging roads, and repair damage to roads that may occur.

[¶6.] A discussion occurred with the Board and those who were present at the hearing regarding concerns about the effect of the CAFO on a nearby artesian well, odor from the manure, whether neighboring property values would decrease, and whether Arrow Farms had the necessary resources to fulfill the promises made in its Letter of Assurances. At the end of the discussion, Cindy8 moved to approve the CAFO. The Board voted in favor of the application by a margin of 3-2, with Dave, Craig, and Cindy voting "yes" and Jeff and Suzanne voting "no." However, because Spink County Ordinance § 17.1906 requires a three-fourths (4-1) vote of the full membership of the Board to approve a CUP, the application was denied.

[¶7.] Arrow Farms filed a second CUP application on November 8, 2018, and the

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Board set a hearing on the request for December 4, 2018 (December hearing). In the meantime, Pipestone hosted a community informational meeting for members of the public on November 27, 2018, to answer questions regarding the CAFO. Most of the Board members attended the meeting. Prior to the December hearing, the Board received three letters against the CAFO and a petition in opposition bearing the names of 65 area residents.

¶8.] At the December hearing, employees from Pipestone and Stockwell Engineering presented information and answered questions about the CAFO. The Board listened to concerns similar to those raised at the April hearing, including the effect of the CAFO on a local artesian well, the devaluation of property values, and the CAFO's odors drifting onto nearby properties. The minutes of the hearing reflect that there was a discussion about how the facility would change the community both positively and negatively. Proponents argued that the CAFO would bring economic development and claimed that having the CAFO's manure byproduct readily available would decrease farmers’ fertilization costs while improving crop yields.

[¶9.] At the conclusion of the discussion, Craig moved to approve the CAFO, on the condition that Arrow Farms plant trees to act as a buffer between neighboring properties. A discussion ensued among Board members. The minutes reflect the Board discussing that it "was a representative government and that [it] had to take into consideration the community's opinions and the issue of odor affecting the neighbors with lung issues[.]" The minutes further reflect that the Board noted "that the economic benefits to the county did not outweigh the will of the people." Ultimately, Craig and Cindy voted to approve the CUP, while Suzanne, Jeff, and Dave voted to deny the permit. As a result, the Board denied the CUP application.

[¶10.] On January 3, 2019, pursuant to SDCL 11-2-61, Miles filed a petition for a writ of certiorari to the circuit court as a person aggrieved by the Board's decision. He alleged that the Board failed to regularly pursue its authority in that its decision was arbitrary and capricious and alleged that the Board violated his right to due process in that the three members who voted in opposition had disqualifying interests or were biased. The circuit court entered a provisional writ on February 4, 2019, directing the Board to file a return to the writ.

[¶11.] In preparation for a hearing on the writ, Miles deposed each Board member regarding their potential interests in or biases against the CAFO.9 As part of this inquiry, Miles asked the Board members, over objection from opposing counsel, about their thought processes and the reasons for their votes at the two public hearings. The information obtained from the depositions is summarized below.

Craig Johnson:

[¶12.] Craig moved to approve the CUP at the December hearing and voted in favor of the permit at both public hearings. During his deposition, Craig accused Jeff, Dave, and Suzanne of turning the approval process into a "Miles likability contest[.]" He claimed Suzanne made a comment about a representative from Arrow Farms being arrogant and that she allegedly said if anybody but "Miles would have applied for [the CUP], it would have went through." He also testified that Board members questioned the State's Attorney about Miles's personal life at a regular board meeting unrelated to the CAFO, and in his view, the behavior of those Board

[972 N.W.2d 143

members was "out of line[.]" Craig testified that he was surprised that the Board denied Arrow Farms's applications because Arrow Farms "met their obligations with the ordinances[.]"

Cindy Schultz:

¶13.] Cindy voted in favor of both CUP applications. In her deposition, she described the tone of the April hearing as "angry." Specifically, she claimed Jeff and Suzanne were angry after the hearing. She testified that Suzanne may have been angry at her because she defended Miles and Arrow Farms, and Suzanne may have been angry at Miles.

Dave Albrecht:

[¶14.] Dave voted in favor of the first application but voted to deny the second. Miles claims that Dave, as the Board chair, exhibited an unreasonable risk of bias against him because he permitted the other Board members to ask the Sheriff and State's Attorney about Miles's legal problems. Relying on the testimony of Craig, Miles also...

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