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Wedel v. Beadle County Commission

Supreme Court of South Dakota

August 17, 2016

BRAD WEDEL, HELENE WEDEL, WILLARD WALLMAN, JEREMY WALLMAN, KRISTI WALLMAN, BILL HORNIG, WENDA HORNIG, ROD HORNIG, NATHAN HORNIG, JIM HORNIG, PATTY HORNIG, JIM GROSS, PATTY GROSS and ERIC GROSS, Petitioners and Appellees,
v.
BEADLE COUNTY COMMISSION, BEADLE COUNTY COMMISSION SITTING AS THE BEADLE COUNTY BOARD OF ADJUSTMENT, DENIS DRAKE, RICK BENSON, TOM HANSEN, LINDA MARCUS, LARRY MATTKE, Respondents and Appellants, and WESTSIDE GILTS RE, LLC, Respondent.

         APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT BEADLE COUNTY, SOUTH DAKOTA THE HONORABLE JON R. ERICKSON Judge

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

          ZACHARY W. PETERSON of Richardson, Wyly, Wise Sauk & Hieb, LLP Aberdeen, South Dakota Attorneys for respondents and appellants.

          KERN, Justice

         [¶1.] Petitioners appealed the Beadle County Board of Adjustment's decision granting a conditional use permit (CUP) to Westside Gilts RE, LLC (Westside). Petitioners argued that the Board lacked authority to issue the permit because the county zoning ordinances (Ordinances), which authorized the Board to grant the permit, were improperly enacted. The circuit court agreed, reversing the Board's decision and declaring the 2011 Ordinances invalid. The Board appeals. We affirm the court's ruling reversing the Board's decision to grant the CUP. But we reverse the court's order declaring the Ordinances invalid.

         Background

         [¶2.] In March 2014, Westside submitted an application to the Beadle

         County Planning Commission for a CUP to construct and operate a Class A concentrated animal feeding operation in Beadle County. The Planning Commission held a hearing where citizens raised their objections, but recommended approval of the CUP under a number of conditions. Westside filed an amended application. The Planning Commission did not notify the public of the amendment or give the application further consideration.

         [¶3.] The Beadle County Commission (BCC) held a noticed hearing on the amended application on May 14, 2014. During this hearing, the BCC met as the Beadle County Board of Adjustment (Board). The Board tabled any decision on the amended application until its next meeting on May 29, 2014. At that meeting, the BCC, again sitting as the Board, approved the CUP.

         [¶4.] In June 2014, Petitioners[1] filed a petition for a writ of certiorari challenging the decision of the Board[2] pursuant to SDCL 11-2-61. Petitioners alleged that the decision was illegal because the Board was without authority to issue the CUP because, in Petitioners' view, the Ordinances passed in 2011 authorizing the Board to act were improperly adopted. The County failed to validly enact the 2011 Ordinances, according to Petitioners, because the county Planning Commission failed to give full and timely notice of its intention to pass the Ordinances and did not hold a public hearing.

         [¶5.] The circuit court, by stipulation of the parties, issued a writ of certiorari pursuant to SDCL 11-2-62 ordering the Board to file a return. In its response, the Board argued that the limited standard of review for writs of certiorari did not allow the circuit court to consider the validity of the Ordinances. Rather, the Board argued that the court's review was limited to whether the Board had jurisdiction over the matter and had regularly pursued its authority. Notably, the Board did not contest the invalidity of the Ordinances, instead arguing that this issue was irrelevant. The court set the matter for hearing on December 29, 2014.

         [¶6.] Prior to the hearing, Petitioners filed a motion to consider evidence requesting that the circuit court take judicial notice of minutes from prior meetings of the Planning Commission and the BCC during 2011. Petitioners alleged that these minutes were relevant to examine the procedure the Planning Commission and the Board used to pass the zoning Ordinances that granted the Board jurisdiction to approve CUPs. Petitioners argued that the Planning Commission did not follow proper procedures for notice pursuant to SDCL chapter 11-2. The court granted the motion and took judicial notice of the minutes.

         [¶7.] On June 30, 2015, the court issued findings of fact and conclusions of law reversing the Board's decision granting the CUP. The circuit court held that the Ordinances were improperly enacted as the Planning Commission failed to comply with SDCL 11-2-18. This statute required the Planning Commission to hold at least one public hearing on the Ordinances after giving 10-days prior notice by publication before making any recommendation to the Board. The court found that the Planning Commission held a hearing on August 10, 2011, to discuss enactment of the Ordinances. Notice of the hearing was published on August 2 and 3, 2011, which the court held failed to provide the required 10-days prior notice. Further, the court found that the notices were deficient in content as they did not "advise the public that the Ordinances were going to be voted upon or considered on August 10, 2011." At the conclusion of the meeting, the Planning Commission voted to recommend approval of the ordinances to the Board.

         [¶8.] In light of these findings, the court held that the Planning Commission did not observe the due process protections codified in SDCL chapter 11-2. Accordingly, the court ruled that the Board failed to "regularly pursue its authority." In reversing the Board's decision granting the permit, the court noted that the "Beadle County landowners were neither provided with the opportunity to formally voice their concerns and present evidence in opposition to the Ordinances nor provided an avenue for ...


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