Powers v. Turner Cnty. Bd. of Adjustment
| Decision Date | 04 November 2020 |
| Docket Number | 29195 |
| Parties | Jeffrey K. POWERS and Vicky Urban-Reasonover, Petitioners and Appellants, v. TURNER COUNTY BOARD OF ADJUSTMENT, Respondent, and Steve Schmeichel and Ethan Schmeichel, Respondents and Appellees. |
| Court | South Dakota Supreme Court |
MITCHELL A. PETERSON, REECE M. ALMOND of Davenport, Evans, Hurwitz & Smith, LLP, Sioux Falls, South Dakota, Attorneys for petitioners and appellants.
BRIAN J. DONAHOE, DANIEL B. WEINSTEIN of Donahoe Law Firm, P.C., Sioux Falls, South Dakota, Attorneys for respondents and appellees.
[¶1.] After the Turner County Board of Adjustment approved an application for the construction and operation of a concentrated animal feeding operation, two landowners appealed the decision by petitioning the circuit court for a writ of certiorari under SDCL 11-2-61. On cross-motions for summary judgment, the circuit court dismissed the petitioners’ appeal, concluding that they failed to show they were persons aggrieved and, thus, lacked standing to appeal under SDCL 11-2-61. We reverse and remand.
[¶2.] In March 2018, Steve and Ethan Schmeichel applied to the Turner County Zoning Office for a conditional use permit to operate a large concentrated animal feeding operation (CAFO). The CAFO would include a 5,400-head sow facility with 2,000 swine over 55 pounds. On April 10, 2018, the Turner County Commission, sitting as the Turner County Board of Adjustment (Board), held a hearing on the application. The Board chairman, Eric Meyer, participated in the hearing but abstained from voting because of a financial interest. Applicant Steve Schmeichel is a Turner County Commissioner and a member of the Board. He recused himself as a participating Board member and instead participated in the hearing as an applicant. Turner County resident Vicky Urban-Reasonover and other residents appeared at the hearing to object to the CAFO. At the conclusion of the hearing, the Board voted unanimously to approve the Schmeichels’ application.
[¶3.] On September 18, 2018, Jeffery Powers and Urban-Reasonover (the Petitioners) petitioned the circuit court for a writ of certiorari under SDCL 11-2-61. They alleged that they own land near the proposed CAFO and are aggrieved by the Board's decision because the CAFO creates a serious risk of, among other things, pollution, increased odors and noise, and negative impact on their property values. They also alleged the Board's decision was illegal, asserting that the Board failed to comply with notice publication requirements and that the application was not approved with the minimum four affirmative votes required by the ordinance. They further alleged that participation in the hearing by two disqualified Board members caused actual bias or risk of actual bias in the voting members, and that the Board failed to regularly pursue its authority in approving the CAFO application. The Petitioners filed a motion for summary judgment on their writ, asserting that no material issues of fact were in dispute, and therefore, the court could determine as a matter of law that the Board's decision was illegal.1
[¶4.] The Schmeichels, joined by Turner County, filed a cross-motion for summary judgment, asserting among other things, that the Petitioners lacked standing to appeal the Board's decision under SDCL 11-2-61. According to the Schmeichels, the Petitioners failed to allege facts sufficient to show that they are persons aggrieved by a decision of the Board. The Schmeichels acknowledged that the CAFO could affect the Petitioners’ enjoyment of their property and that the effect on them could be greater than the effect on other Turner County residents. However, the Schmeichels asserted that the Petitioners failed to allege a unique or personal injury, separate and distinct from similar Turner County residents. In response, Urban-Reasonover submitted an affidavit stating that her residence and property is less than 3/4 of a mile from the proposed CAFO, and if built, the operation will cause her property to be substantially devalued because of noxious odors and noise.
[¶5.] The circuit court held a hearing on the issue of standing and thereafter issued a memorandum decision. Applying Cable v. Union County Board of County Commissioners , 2009 S.D. 59, 769 N.W.2d 817, the court found that the Petitioners failed to present sufficient evidence to establish standing. The court determined that "[t]here is simply nothing in the record to support [Affiant Urban-Reasonover's] allegations that noxious odors and noise will invade her property...." In the court's view, it was "left to decide whether 3/4 of a mile is significant without any evidence with which to" determine whether the Petitioners are persons aggrieved. However, the court did not grant summary judgment to the Schmeichels and Turner County because the Petitioners had made a timely request for discovery under SDCL 15-6-56(f).2 The court therefore granted the Petitioners 45 days from the date of the June 13, 2019 decision to submit additional evidence to show standing.
[¶6.] Instead of submitting additional evidence, the Petitioners filed a motion to reconsider and a motion to compel discovery. They asserted that the circuit court's previous ruling was no longer valid in light of Abata v. Pennington County Board of Commissioners , 2019 S.D. 39, 931 N.W.2d 714.3 The circuit court disagreed that Abata changed the inquiry in this case because Abata did not address SDCL 11-2-61, and like the petitioners in Cable , the Petitioners here were required to show they are persons aggrieved. The circuit court denied the Petitioners’ request to compel discovery and gave the Petitioners until September 23, 2019, to submit evidence on standing.
[¶7.] On September 20, 2019, the Petitioners submitted an expert report and affidavit from appraiser Steven Shaykett related to the CAFO's effect on the value of Urban-Reasonover's property. In his report, Shaykett opined that if the CAFO is constructed as proposed, the value of Urban-Reasonover's property would be reduced by $48,000. The Petitioners also submitted an expert report and affidavit from Anton Jitnikovitch on an "Odour Impact Simulation." In his report, Jitnikovitch opined that Urban-Reasonover's property would experience complaint-triggering odors from the proposed CAFO "72.4% of days."
[¶8.] After the Petitioners submitted this evidence, the circuit court judge recused himself and another judge was assigned to the case. The Schmeichels, joined by Turner County, filed a supplemental brief on October 28, 2019, responding to the Petitioners’ evidence on standing. After a hearing on November 4, 2019, the reassigned judge granted the Schmeichels summary judgment, concluding that the Petitioners lacked standing because they failed to show that they have a unique injury compared to other Turner County residents. The court declined to rule on the Petitioners’ motion for summary judgment and dismissed their appeal.
[¶9.] The Petitioners now appeal to this Court, asserting that the circuit court erred in concluding they lacked standing to appeal under SDCL 11-2-61.
[¶10.] Our standard of review from a decision granting summary judgment is well settled:
We must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party. The nonmoving party, however, must present specific facts showing that a genuine, material issue for trial exists. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the trial court, affirmance of a summary judgment is proper.
Brandt v. Pennington Cnty. , 2013 S.D. 22, ¶ 7, 827 N.W.2d 871, 874 (quoting Jacobson v. Leisinger , 2008 S.D. 19, ¶ 24, 746 N.W.2d 739, 745 ).
[¶11.] The Petitioners argue that the circuit court erred in concluding as a matter of law that they did not present sufficient facts demonstrating a unique and personal injury compared to Turner County taxpayers in general.4 They further assert that the circuit court judge improperly weighed evidence from their experts and applied his professed personal knowledge about odor dispersion and CAFOs in rejecting the expert evidence.
[¶12.] The Schmeichels, joined by Turner County, contend the circuit court properly concluded that the Petitioners are not persons aggrieved under SDCL 11-2-61 because the alleged harm—increased noise, dust, and odor, and reduced property value—would be suffered by all residents living near the proposed CAFO. To support their argument that the Petitioners’ injury is not personal or unique, the Schmeichels direct this Court to the "Right to Farm Covenant" running with the land for all Turner County residents in the A-1 Agricultural District. That covenant provides:
You are hereby notified that the property on which you are constructing a structure is in or near agricultural land, agricultural operations or agricultural processing facilities or operations. You may be subject to inconvenience or discomfort .... Discomforts and inconveniences may include, but are not limited to: noise, odors, fumes, dust, smoke, burning, vibrations, insects, rodents, and/or the operation of machinery (including aircraft) during any twenty-four hour period. If you live near an agricultural area, you should be prepared to accept such inconveniences or discomforts as a normal and necessary aspect of living in an area with a strong rural character and an active agricultural sector. You are also notified that there is the potential for agricultural or agricultural processing operations to expand.
The Schmeichels argue that...
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Powers v. Turner Cnty. Bd. of Adjustment
...petition on summary judgment, determining that Petitioners lacked standing to challenge the CUP. In Powers v. Turner County Board of Adjustment (Powers I ), 2020 S.D. 60, 951 N.W.2d 284, this Court reversed and remanded, holding that Petitioners had presented sufficient evidence to generate......
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Powers v. Turner Cnty. Bd. of Adjustment
...that Petitioners lacked standing to challenge the CUP. In Powers v. Turner County Board of Adjustment (Powers I), 2020 S.D. 60, 951 N.W.2d 284, this Court reversed and remanded, holding that Petitioners had presented sufficient evidence to generate a question of fact whether they were aggri......
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...Dakota law governs the resolution of the standing issue for state law claims in this case. In Powers v. Turner Co. Bd. of Adjustment, 951 N.W.2d 284, 289-90 (S.D. 2020), the South Dakota Supreme Court reiterated the general rules that a litigant must have standing to pursue a claim in court......
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