NICHOLAS L. and DONNELLE K. HOFFMAN, Applicants and Appellants,
JESSICA VAN WYK, in her capacity as the Douglas County Planning and Zoning Administrator, and THE DOUGLAS COUNTY PLANNING AND ZONING COMMISSION, Respondents and Appellees.
CONSIDERED ON BRIEFS ON MAY 30, 2017
FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT DOUGLAS
COUNTY, SOUTH DAKOTA THE HONORABLE TIMOTHY W. BJORKMAN
TIMOTHY R. WHALEN Lake Andes, South Dakota Attorney for
applicants and appellants.
W. SHANKS of May & Johnson, PC Sioux Falls, South Dakota
Attorneys for respondents and appellees.
Nicholas and Donnelle Hoffman own real property in Douglas
County. The Hoffmans learned that Douglas Luebke applied for
and received a building permit for a hog confinement unit
from Jessica Van Wyk, the Douglas County Planning and Zoning
Administrator. The Hoffmans applied for a writ of mandamus
compelling Van Wyk and the Douglas County Planning and Zoning
Commission to comply with the County's zoning ordinance
and revoke the building permit. The circuit court held a
trial and denied the Hoffmans' request. The Hoffmans
appeal, and Van Wyk counters with a notice of review. We
affirm in part and reverse in part.
and Procedural History
Douglas Luebke applied for and received a building permit
from Van Wyk, in her capacity as Douglas County Planning and
Zoning Administrator, for a hog confinement unit housing up
to 2, 400 head on July 22, 2015. Luebke submitted an
accompanying hand-drawn site plan with his application. The
facility was to be located fewer than two miles from the
Corsica Lake Recreation Area and under a half mile from the
Hoffman residence. Van Wyk made no public notice of her
decision to grant Luebke's application, as she determined
that the ordinance did not require notice be given. However,
Van Wyk informed the Commission that she had issued a permit
to Luebke prior to the Commission's meeting on September
10, 2015. On September 11, 2015, the Hoffmans met with Van
Wyk at her office, where they discussed the permit granted to
Luebke. Van Wyk explained to the Hoffmans that Luebke's
hog barn would house fewer than 1, 000 animal
units and did not constitute an animal
feeding operation under the ordinance. As such, she
considered it a permitted use under the zoning ordinance for
which a building permit could be granted.
On December 22, 2015, the Hoffmans' counsel sent a letter
to the Douglas County State's Attorney, who then
forwarded the letter to Van Wyk. The letter requested that
Van Wyk revoke the building permit issued to Luebke. On
December 28, 2015, the Commission held an emergency meeting
and determined that the building permit should not be
revoked. Van Wyk then sent a response letter to the
Hoffmans' counsel explaining Van Wyk's decision not
to revoke the permit, reiterating the fact that the facility
would house fewer than 1, 000 animal units under the
ordinance. No written notice of appeal was filed after Van
Wyk issued the letter.
On March 14, 2016, the Hoffmans applied for a writ of
mandamus to compel Van Wyk and the Commission to revoke the
building permit and put a halt to all construction. The
circuit court issued an alternative writ of mandamus ordering
Van Wyk and the Commission to show cause explaining why the
court should not issue a permanent writ of mandamus. On June
3, 2016, the court held a trial. In its memorandum decision,
the court held that the facility was not a "farm, "
"ranch, " or "orchard, " and that it
therefore did not fall under any of the permitted uses of
land for which a building permit could be granted.
Nevertheless, the circuit court concluded that a writ of
mandamus could not be used to undo an already completed act.
Additionally, it found that principles of equity would not
entitle the Hoffmans to relief. Thus, while the court
concluded that the "[a]dministrator had a ministerial
duty-which it failed to fulfill-to deny Luebke's permit
application, " it ultimately decided that a writ of
mandamus would be inappropriate.
The Hoffmans appeal, contending that the circuit court erred
by failing to issue a writ of mandamus. Van Wyk argues in a
notice of review that the circuit court erred in determining
that the hog barn was not a permitted use under the
ordinance. Because we agree with Van Wyk, we reverse the
circuit court's conclusion that the hog barn was not a
permitted use under the ordinance but affirm its decision not
to grant the Hoffmans a writ of mandamus.
Van Wyk argues on notice of review that the circuit court
erred when it determined that Luebke's hog barn was not a
"farm" or "ranch" under the ordinance. We
agree that Luebke's hog confinement facility, located in
an agricultural district, was a permitted use without the
need for a variance or conditional-use permit. This issue is
dispositive of the case, and we need not reach the merits of
the Hoffmans' arguments.
The parties agree that the facility was not an
"agriculture" use under the ordinance's
definition of terms. "Agriculture" is defined, in
part, as "the raising and/or feeding of [fewer] than
five hundred (500) animal units of livestock[.]"
However, Van Wyk contends that the facility is a permitted
use as a farm or ranch. ...