Lake Hendricks Improvement Association v. Brookings County Planning And Zoning Commission

          ARGUED ON MAY 24, 2016

         APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT BROOKINGS COUNTY, SOUTH DAKOTA THE HONORABLE VINCENT A. FOLEY Judge

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

          JACK H. HIEB ZACHARY W. PETERSON of Richardson, Wyly, Wise, Sauck & Hieb, LLP Aberdeen, South Dakota Attorneys for respondents and appellees Brookings County.

          BRIAN DONAHOE Sioux Falls, South Dakota Attorney for respondents and appellees Michael Crinion and Killeskillen, LLC.

          OPINION

          WILBUR, Justice

         [¶1.] Petitioners sought to reverse a county board of adjustment's 2014 decision to grant Developer a conditional use permit for a concentrated animal feeding operation. Petitioners alleged that the board did not have jurisdiction to grant the permit because the county failed to validly enact an ordinance authorizing the board to issue permits. The circuit court refused to consider whether the county validly enacted the ordinance. In the court's view, such review would be outside the scope of Petitioners' writ challenging the board's decision. Petitioners further asserted that the board failed to regularly pursue its authority when it granted the permit. The court upheld the board's decision to grant the permit. Petitioners now appeal alleging the same. Developer filed a notice of review, asserting that the circuit court did not have subject matter jurisdiction to consider Petitioners' writ because Petitioners do not have standing under SDCL 11-2-61. We dismissed Developer's notice of review in Lake Hendricks Improvement Association v. Brookings County Planning & Zoning Commission because Developers failed to serve notice on all parties. 2016 S.D. 17, 877 N.W.2d 99. We reserved ruling on whether Developer may argue its issue as jurisdictional despite the dismissal of its notice of review. We reverse and remand.

         Background

         [¶2.] On September 8, 2014, Michael Crinion and his company, Killeskillen, LLC (Killeskillen), submitted an application for a conditional use permit (CUP) to construct a new concentrated animal feeding operation (CAFO) in Brookings County, South Dakota. The proposed CAFO would be located in the N.E. 1/4 of Section 10-11-48 of Brookings County and house up to 3, 999 mature dairy cows. The Brookings County Planning & Zoning Commission, sitting as the Brookings County Board of Adjustment (Board), held a hearing on Killeskillen's application on October 7, 2014. Prior to the hearing, the zoning office had received written materials from the public concerning Killeskillen's proposed CAFO. During the hearing, proponents and opponents offered testimony concerning the CAFO. At the conclusion of the hearing, the Board voted to approve Killeskillen's application with conditions. It entered findings of fact and special conditions.

         [¶3.] Lake Hendricks Improvement Association, City of Hendricks, Minnesota, and Norris Patrick (Petitioners) petitioned the circuit court under SDCL 11-2-61 for a writ of certiorari and challenged the Board's decision to grant Killeskillen a CUP. Petitioners asserted that the Board acted without jurisdiction when it granted the CUP because Brookings County failed to validly enact its ordinances in 2007 (Ordinances) governing CUPs. Petitioners alternatively argued that the Board failed to regularly pursue its authority when it granted the CUP. Petitioners asserted that the evidence is undisputed that: (1) the Board's decision violated the Ordinances because the Board allowed the CAFO within 2, 640 feet of a private well; (2) the Board failed to require Killeskillen to enter into a road use agreement with Oak Lake Township before granting the CUP; and (3) the Board allowed a CAFO in a Zone B aquifer protection site.

         [¶4.] In response, Killeskillen moved to dismiss the petition, alleging that Petitioners lacked standing under SDCL 11-2-61 to challenge the Board's decision. Alternatively, Brookings County and Killeskillen asserted that the circuit court could not review the validity of the ordinances enacted by the County in 2007 because, in their view, such review is beyond the scope of Petitioners' writ. Lastly, the County and Killeskillen argued that the CUP complies with the Ordinances, and, therefore, the Board regularly pursued its authority when it granted Killeskillen a CUP for a CAFO.

         [¶5.] The circuit court held a hearing and orally denied Killeskillen's motion to dismiss for lack of subject matter jurisdiction. It also refused to consider the validity of the 2007 Ordinances because it concluded that such review was beyond the scope of Petitioners' writ. The court held that the Board possessed jurisdiction to grant the CUP because, at the time Killeskillen applied for a CUP and during the hearing, the Ordinances were unchallenged. The court said that "[a]ny attack on the Ordinance remains a question to be addressed in another cause of action."

         [¶6.] On the merits, the circuit court found that the Board considered whether there were any wells within the setback requirement via a search of the state registry of well heads and from the fact no evidence of the presence of wells was presented at the October 7, 2014 hearing. The court refused to consider Petitioners' evidence of the presence of a well within the setback because that evidence was not before the Board when it decided the issue. The court found that the site description of the CAFO does not include a Zone B aquifer protection area. The court also found the Board determined that appropriate protections were in place for those to be affected by traffic, road use, and other factors. In light of these findings by the Board, the circuit court concluded that the Board followed the Ordinances and the standards set in the Ordinances when it granted Killeskillen a CUP. The court recognized that, under its review of Petitioners' request for relief under SDCL 11-2-61, the court does not review whether the Board's underlying decision was correct in the absence of proof that the Board acted fraudulently or in arbitrary or willful disregard of undisputed and indisputable proof. The court affirmed the Board's decision to grant Killeskillen a CUP and denied Petitioners' request for relief.

         [¶7.] Petitioners appeal, asserting:

1. The circuit court erred when it refused to consider the validity of the Ordinances.

2. The Board exceeded its jurisdiction and failed to regularly pursue its authority when it granted ...