LAKE HENDRICKS IMPROVEMENT ASSOCIATION; CITY OF HENDRICKS, MINNESOTA; and NORRIS PATRICK, Petitioners and Appellants,
v.
BROOKINGS COUNTY PLANNING AND ZONING COMMISSION; BROOKINGS COUNTY PLANNING AND ZONING COMMISSION SITTING AS THE BROOKINGS COUNTY BOARD OF ADJUSTMENT; MICHAEL CRINION; KILLESKILLEN, LLC; Respondents and Appellees, and LC OLSON, LLP, Respondent.
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
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