Powers v. Turner Cnty. Bd. of Adjustment

• Citation: 983 N.W.2d 594
• Decision Date: 21 December 2022
• Docket Number: #29865, #29870, #29871
• Parties: Jeffrey K. POWERS and Vicky Urban-Reasonover, Petitioners and Appellants, v. TURNER COUNTY BOARD OF ADJUSTMENT, Respondent and Appellee, and Steve and Ethan Schmeichel and Norway Pork Op, LLC, Intervenors and Appellees.
• Court: Supreme Court of South Dakota

983 N.W.2d 594

Jeffrey K. POWERS and Vicky Urban-Reasonover, Petitioners and Appellants,

v.TURNER COUNTY BOARD OF ADJUSTMENT, Respondent and Appellee,andSteve and Ethan Schmeichel and Norway Pork Op, LLC, Intervenors and Appellees.

#29865, #29870, #29871

Supreme Court of South Dakota.

ARGUED OCTOBER 4, 2022

OPINION FILED December 21, 2022

MITCHELL A. PETERSON, MICHAEL L. SNYDER of Davenport, Evans, Hurwitz & Smith, LLP, Sioux Falls, South Dakota, Attorneys for petitioners and appellants.

BRIAN J. DONAHOE of Donna Law Firm, P.C., Minneapolis, Minnesota, Attorneys for intervenors and appellees.

DOUGLAS M. DEIBERT of Cadwell, Sanford, Deibert & Garry, LLP, Sioux Falls, South Dakota, Attorneys for respondent and appellee.

JENSEN, Chief Justice

[¶1.] The Turner County Board of Adjustment (Board) granted Steve and Ethan Schmeichel and Norway Pork Op, LLC (Intervenors) a conditional use permit (CUP) for a large concentrated animal feed operation (CAFO). Nearby landowners Jeffrey K. Powers and Vicky Urban-Reasonover (Petitioners) petitioned the circuit court pursuant to SDCL 11-2-61 for a writ of certiorari challenging the legality of the CUP. Over the objections of the Board and Intervenors, the circuit court determined Petitioners had standing to challenge the conditional use permit but denied the writ of certiorari. Petitioners appeal the circuit court's denial of the writ of certiorari. By notice of review, the Board and Intervenors appeal the issues of standing and the circuit court's refusal to impose attorney fees on Petitioners under SDCL 11-2-65. We affirm.

Facts and Procedural History

[¶2.] The Schmeichels initially sought a CUP in 2018 for a large CAFO that would house 7,400 head of swine, consisting of 5,400 sows and 2,000 hogs over 55 pounds. The Board voted to approve a CUP for the operation (2018 Permit). Petitioners filed a petition for a writ of certiorari with the circuit court challenging the Board's approval of the 2018 Permit. The circuit court dismissed that 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 a question of fact whether they were aggrieved parties.

[¶3.] Before that action was resolved, Intervenors submitted the CUP application at issue in this case for the same CAFO (2020 Permit).¹ Prior to the hearing on the 2020 Permit, Petitioners submitted reports from Mr. Steve Shaykett, a real estate appraiser, and Mr. Anton Jitnikovitch, an odor modeling expert with a company called Scentroid. Intervenors’ odor expert, Dr. Richard Nicolai, testified at the hearing. Board members Mick Miller, Anthony Champa, Richard Vasgaard, and Dean Austin granted the 2020 Permit by a unanimous vote. Steve Schmeichel was a member of the Board at the time but recused himself and did not participate as a Board member at the hearing because of his interest in the CAFO.

[¶4.] Petitioners petitioned for a writ of certiorari with the circuit court challenging the Board's approval of the 2020 Permit. Intervenors were permitted to intervene. The parties then stipulated to the entry of a final judgment on the pending certiorari action challenging the 2018 Permit, determining that "Schmeichels shall not use the 2018 Permit" and dismissing the action as moot.²

[¶5.] The circuit court held a bench trial on the petition for writ of certiorari. Shaykett, Petitioners, the four members of the Board who voted to approve the 2020 Permit, and then-Turner County Zoning Administrator Faye Dubbelde testified. The court also admitted a recording of a deposition of Dr. Ardevan Bakhtari, who is the President and CEO of Scentroid and had reviewed and approved Mr. Jitnikovitch's report. The court found that Petitioners were aggrieved persons with standing to challenge the 2020 Permit but denied the petition for writ of certiorari on the merits, determining that the Board actions in approving the CUP were legal. Following the denial of the writ, the Board and Intervenors filed motions requesting the court to assess attorney fees against the Petitioners pursuant to SDCL 11-2-65. The circuit court declined to award attorney fees.

[¶6.] Petitioners raise two issues on appeal:

1. Whether Petitioners’ procedural due process rights were violated by the Board's actions.

2. Whether the Board improperly granted the 2020 Permit by failing to adhere to its Ordinance.

Intervenors and the Board seek review of two issues:

1. Whether Petitioners have standing to challenge the Board's actions.

2. Whether the circuit court abused its discretion by declining to award attorney fees under SDCL 11-2-65.

Analysis and Decision

1. Petitioners’ standing.

[¶7.] Although Intervenors and the Board raise the issue of standing by notice of review, we address this issue first because "litigant[s] must have standing in order to bring a claim in court." Powers I , 2020 S.D. 60, ¶ 13, 951 N.W.2d at 289–90 (quoting Lippold v. Meade Cnty. Bd. of Comm'rs , 2018 S.D. 7, ¶ 18, 906 N.W.2d 917, 922 ). And "[a]though standing is distinct from subject-matter jurisdiction, a circuit court may not exercise its subject-matter jurisdiction unless the parties have standing." Id. (alteration in original) (quoting Lippold , 2018 S.D. 7, ¶ 18, 906 N.W.2d at 922 ). "Whether a party has standing to maintain an action is a question of law reviewable by this Court de novo." Pickerel Lake Outlet Ass'n v. Day Cnty. , 2020 S.D. 72, ¶ 7, 953 N.W.2d 82, 86 (quoting Howlett v. Stellingwerf , 2018 S.D. 19, ¶ 11, 908 N.W.2d 775, 779 ).

[¶8.] Intervenors argue Petitioners are not aggrieved parties under SDCL 11-2-1.1, which took effect in 2020. Intervenors claim that this statute codifies heightened requirements to establish that a person is "aggrieved" by a decision of a county board of adjustment and the circuit court erred in failing to dismiss the petition for lack of standing. As a part of their standing argument, Intervenors also contend that the circuit court erred in allowing Shaykett's opinion into evidence. Petitioners respond that the circuit court correctly determined they have standing to challenge the 2020 Permit by writ of certiorari as their properties are uniquely impacted because of their close proximity to the proposed CAFO.

[¶9.] While the Intervenors did not raise the evidentiary issue in their notice of review, the circuit court was within its discretion in admitting and considering Shaykett's opinion for the issue of standing. We review evidentiary rulings for abuse of discretion. Miles v. Spink Cnty. Bd. of Adjustment , 2022 S.D. 15, ¶ 24, 972 N.W.2d 136, 145 (citing Grant Cnty. Concerned Citizens v. Grant Cnty. Bd. of Adjustment , 2015 S.D. 54, ¶ 40, 866 N.W.2d 149, 163 ). For expert testimony, this Court adopted the test from Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). In re Est. of Dokken , 2000 S.D. 9, ¶ 40, 604 N.W.2d 487, 498 (explaining that the Court in State v. Hofer , 512 N.W.2d 482, 484 (S.D. 1994) adopted the Daubert test). Daubert eliminated the requirement of "general acceptance in the scientific community." Id. (citing State v. Moeller , 1996 S.D. 60, ¶ 52, 548 N.W.2d 465, 479 ). Thus, the circuit court "simply [had to] determine ‘that [the] expert's testimony both rest[ed] on a reliable foundation and [was] relevant to the task at hand.’ " Id. (quoting Moeller , 1996 S.D. 60, ¶ 52, 548 N.W.2d at 479 ). "The basis of an expert's opinion is generally a matter going to the weight of the testimony rather than the admissibility." Id. ¶ 41, 604 N.W.2d at 499 (quoting State v. Spiry , 1996 S.D. 14, ¶ 16, 543 N.W.2d 260, 264 ).

[¶10.] Expert opinions concerning valuation questions are not formulaic, and "[a]dmission of comparable sales rests largely within the discretion of the trial court...." City of Sioux Falls v. Kelley , 513 N.W.2d 97, 104 (S.D. 1994) ; see SDCL 19-19-702. In First Western Bank Wall v. Olsen , we held that one party "failed to show that the circuit court abused its discretion" by accepting the other party's different valuation opinion. Olsen , 2001 S.D. 16, ¶ 10, 621 N.W.2d 611, 616. The other party's valuation opinion was not "unreliable or irrelevant" just because the experts varied in the methods they emphasized. Id. Here, too, the circuit court admitted Shaykett's opinion, determining that its concerns with the speculative nature of the opinion regarding value went to its weight, not its admissibility.

[¶11.] Having addressed the admissibility of Petitioners’ expert testimony on the question of standing, we now return to whether the evidence supports the circuit court's determination that Petitioners are aggrieved persons. The statute authorizing a writ of certiorari challenge to a county board of adjustment decision provides in relevant part that "[a]ny person ... aggrieved by any decision of the board of adjustment 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." SDCL 11-2-61. SDCL 11-2-1.1 defines a person aggrieved as:

any person directly interested in the outcome of and aggrieved by a decision or action or failure to act pursuant to this chapter who:

(1) Establishes that the person suffered an injury, an invasion of a legally protected interest that is both concrete and particularized, and actual or imminent, not conjectural or hypothetical;

(2) Shows that a causal connection exists between the person's injury and the conduct of which the person complains. The causal connection is satisfied if the injury is fairly traceable to the challenged action, and not the result of the independent action of any third party not before the court;

(3) Shows it is likely, and not merely speculative, that the injury will be redressed by a favorable

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