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Adolph v. Grant County Board of Adjustment

Supreme Court of South Dakota

March 1, 2017

GERALDINE ADOLPH and BARTH ADOLPH, Plaintiffs and Appellants,



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

          JACK H. HIEB ZACHARY W. PETERSON of Richardson, Wyly, Wise, Sauck & Hieb, LLP Aberdeen, South Dakota Attorneys for appellee Grant County Board of Adjustment.

          BRIAN J. DONAHOE of Donahoe Law Firm, P.C. Sioux Falls, South Dakota Attorney for appellee Dustin Nelson.

          GILBERTSON, Chief Justice

         [¶1.] Geraldine and Barth Adolph appeal the circuit court's affirmance of the Grant County Board of Adjustment's decision to approve Dustin Nelson's application for a conditional-use permit to construct a concentrated animal-feeding operation (CAFO). Adolphs argue that Nelson's proposed project violates the Zoning Ordinance for Grant County (the ZOGC) and that consequently, the Board's decision was illegal. Adolphs also argue Nelson presented a new waste-disposal plan at the public hearing, denying them an opportunity to voice their concerns. Finally, Adolphs claim the Board was biased against their expert. We affirm in part, reverse in part, and remand.

         Facts and Procedural History

         [¶2.] On March 24, 2015, Nelson filed an application for a conditional-use permit to construct and operate a Class A CAFO in Grant County. In the application, Nelson indicated the proposed CAFO would be a dairy operation consisting of 5, 500 head of cattle. The Board scheduled a hearing for May 11, 2015, to consider Nelson's application. It published notice in a paper of general circulation in Grant County for two weeks prior to the hearing.

         [¶3.] At the hearing, Nelson presented information in support of his application through his attorney; his engineer, Brian Friedrichsen of Dakota Environmental; and his developer, Arjan Blok. After Nelson's presentation, the Board opened up the hearing to public commentary. The Board allotted 10 minutes to every person who wished to speak. A number of individuals, including Geraldine and her attorney, spoke in opposition to the CAFO. Additionally, opponents submitted a 250-page report authored by Kathy Martin, an engineer from another state.[1] One opponent used her allotted time to discuss Martin's report, walking the Board through several of Martin's criticisms. Adolphs' attorney also discussed Martin's credentials and report. He prepared a three-page "lay summary" for the Board covering the highlights of Martin's report.

         [¶4.] Opponents of the proposed CAFO raised substantive concerns with Nelson's application. In her report, Martin concluded that Nelson's application failed to explain how silage leachate[2] would be captured and disposed of at the proposed CAFO. Several opponents also addressed this concern in comments at the hearing. In response, after the time for public comment, the Board asked for clarification. Friedrichsen explained that leachate and other waste waters would be collected and stored in waste-water ponds on site. Opponents also focused on past environmental violations of A.J. Bos, the individual that Adolphs allege will actually operate the CAFO. Opponents also asserted that Nelson's nutrient-management plan claimed manure-application agreements for acres already under contract.

         [¶5.] The Board ultimately voted to approve Nelson's application by a 5-2 vote. The Board conditioned approval on Nelson obtaining all applicable state permits. It also required Nelson to obtain approval from the South Dakota Department of Environment and Natural Resources (DENR) for his nutrient-management plan. Additionally, the Board adopted one of Martin's suggestions and required Nelson to install a synthetic liner in the waste-water ponds. Adolphs petitioned the circuit court for a writ of certiorari to review the legality of the Board's decision. The circuit court granted the writ but affirmed.

         [¶6.] Adolphs appeal, raising three issues:

1. Whether the Board regularly pursued its authority in granting Nelson's application for a conditional-use permit.
2. Whether Nelson presented a new plan for the disposal of leachate during the hearing, denying Adolphs an opportunity for meaningful participation.
3. Whether the Board exhibited bias requiring a new hearing.

         Standard of Review

         [¶7.] "Our review of a board of adjustment's decision is limited." Grant Cty. Concerned Citizens v. Grant Cty. Bd. of Adj't, 2015 S.D. 54, ¶ 10, 866 N.W.2d 149, 154. "Any person . . . aggrieved by any decision of the board of adjustment may present to a court of record a petition . . . setting forth that the decision is illegal, . . . specifying the grounds of the illegality." SDCL 11-2-61. "Upon the presentation of the petition, the court may allow a writ of certiorari directed to the board of adjustment to review the decision . . . ." SDCL 11-2-62. "The review upon writ of certiorari cannot be extended further than to determine whether the . . . board . . . has regularly pursued [its] authority . . . ." SDCL 21-31-8. "With a writ of certiorari, we do not review whether the board's decision is right or wrong." Grant Cty. Concerned Citizens, 2015 S.D. 54, ¶ 10, 866 N.W.2d at 154 (quoting Duffy v. Cir. Ct., 7th Jud. Cir., 2004 S.D. 19, ¶ 33, 676 N.W.2d 126, 138). "A board's actions will be sustained unless it did some act forbidden by law or neglected to do some act required by law." Id. (quoting Jensen v. Turner Cty. Bd. of Adj't, 2007 S.D. 28, ¶ 4, 730 N.W.2d 411, 413). However, "certiorari will not lie to review technical lack of compliance with law or be granted to correct insubstantial errors which are not shown to have resulted in prejudice or to have caused substantial injustice[.]" State ex rel. Johnson v. Pub. Utils. Comm'n of S.D., 381 N.W.2d 226, 230 (S.D. 1986); 14 Am. Jur. 2d Certiorari § 14, Westlaw (database updated February 2017).

         Analysis and Decision

         [¶8.] 1. Whether the Board regularly pursued its authority in granting Nelson's application for a conditional-use permit.

         [¶9.] Adolphs argue the Board did not regularly pursue its authority in a number of ways. First, they contend the proposed CAFO will significantly contribute to pollution in violation of the ZOGC. Second, they contend the Board failed to consider the prevailing winds at the site of the proposed CAFO. Third, they contend the Board failed to consider Bos's alleged environmental violations. Fourth, they contend the Board failed to consider increasing setbacks. Fifth, they contend the Board double counted manure easements and that Nelson's nutrient-management plan is therefore insufficient. Sixth and finally, they contend the Board failed to exercise independent judgment.

         Contribution to pollution

         [¶10.] Adolphs contend the CAFO will significantly contribute to pollution. Section 278 of the ZOGC enumerates several factors that the Board is required to consider in determining whether a proposed CAFO is likely to be a significant contributor of pollution:

1. Size of feeding operation and amount of manure reaching waters of the state;
2. Location of the feeding operation in relation to waters of the state;
3. Means of conveyance of manure and process wastewater into waters of the state; and
4. The slope, vegetation, rainfall and other factors affecting the likelihood or frequency of discharge of animal wastes and process wastewater into waters of the state.

         Adolphs assert that Nelson's application and engineering report "fail[] to explain how runoff from the CAFO will be managed" and that "Nelson did not . . . address the issue of runoff in his initial presentation to the Board." Thus, Adolphs conclude the Board's "fail[ure] to cite to a single page of the report addressing this issue . . . is a fatal omission."

         [¶11.] Adolphs are incorrect. Nelson's application addresses the conveyance of waste water in several respects. The first page of Nelson's engineering report states:

Manure will be collected from the manure alleys in the barn by vacuum trucks, which will transport it to a solids separation system. The barn will utilize separated manure solids as bedding, while the separated liquids will transfer to the pond system. No liquids will be recirculated from the ponds for use within the barns. With the exception of a small concrete pad for temporary storage of excess separated solids, all waste at the facility will be handled as a liquid. The storage volume available exceeds 365 days of manure and wastewater production for the proposed population. Additional volume is also provided in the ponds for residual volume, stormwater events and annual precipitation on the ponds and contributing areas, and freeboard of two feet. A factor of safety of over 30% is also provided over the calculated volume.

         Appendix 1 to Nelson's report also details the anticipated volume of wash water and runoff from the solid-waste pad and the feed storage area. These calculations are included in the calculations for the total storage capacity required by the ponds.

         [¶12.] Moreover, whether the application itself addressed runoff is not dispositive of the question whether the Board's decision was legal. Section 278 requires the Board to consider the means of conveyance of waste water; it does not require the Board to reject an application that fails to fully explain the issue. Adolphs acknowledge that in addition to the written material submitted with the application, "the public and Petitioners . . . raised the runoff issue"-both orally and by written submissions-at the public hearing before the Board. According to Adolphs, "Nelson's lack of runoff containment" was "specifically addressed" by opponents of the CAFO. In response to these concerns, Chairwoman Johnson asked Nelson's engineer about the plan for managing waste water. He replied: "Leachate and runoff from the feed storage area is designed to be captured in the ponds. The exact methodology of that is not included in the plan. This is a preliminary plan designed to meet the requirements of the ordinance." Nelson's engineer also informed the Board that the CAFO would employ "the same methodology used to manage runoff at Bronson (Lakeside) Dairy"-another CAFO previously approved by the Board. Thus, regardless of whether the application addressed how the proposed CAFO would handle waste water, that issue was raised and addressed by opponents and proponents of the CAFO at the public hearing before the Board.

         [¶13.] We are satisfied the Board regularly pursued its authority in regard to ZOGC § 278. It is clear from the application and the discussion at the public hearing that the Board considered the proposed CAFO's plan for disposing of waste water. Whether the Board correctly decided that the CAFO would not be a significant contributor of pollution is outside the scope of our review. See Grant Cty. Concerned Citizens, 2015 S.D. 54, ¶ 17, 866 N.W.2d at 156.

         Prevailing winds

         [¶14.] Adolphs contend the Board failed to consider the prevailing winds of the proposed CAFO site. Section 1304(5) of the ZOGC requires a CAFO to "dispose of dead animals, manure and wastewater in such a manner as to control odors or flies." In considering an application for a conditional use permit, § 1304(5) requires the Board to "review the need for control measures on a site specific basis, taking into consideration prevailing wind direction and topography." When asked during her deposition what information she had regarding the prevailing winds at the proposed CAFO site, Chairwoman Johnson replied: "My own experience. . . . [W]e don't consider prevailing winds."[3] Thus, Adolphs conclude the Board failed to consider something required by the ZOGC.

         [¶15.] Adolphs' focus on the phrase taking into consideration prevailing winddirection is unwarranted. As indicated by the language quoted above, see supra ¶ 14, § 1304(5) does not require the Board to consider prevailing winds for the sake of considering prevailing winds. Rather, doing so is relevant in determining whether to institute any of the procedures enumerated in § 1304(5) for controlling odors and flies. But Nelson's management plan already incorporated several of those controls. According to the plan, the proposed CAFO will utilize existing and proposed vegetation (e.g., trees and shrubs) to disperse odors by agitation (§ 1304(5)(3)). The solid-waste storage pad is designed to drain away from the pad and into the waste-water ponds (§ 1504(5)(4)-(5)). The plan claims the facility is designed to remove manure from the housing areas as soon as possible (§ 1504(5)(6)). The plan also anticipates a ...

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