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Hoffman v. Van Wyk

Supreme Court of South Dakota

August 9, 2017

NICHOLAS L. and DONNELLE K. HOFFMAN, Applicants and Appellants,
v.
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

         APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT DOUGLAS COUNTY, SOUTH DAKOTA THE HONORABLE TIMOTHY W. BJORKMAN Retired Judge

          TIMOTHY R. WHALEN Lake Andes, South Dakota Attorney for applicants and appellants.

          JASON W. SHANKS of May & Johnson, PC Sioux Falls, South Dakota Attorneys for respondents and appellees.

          SEVERSON, JUSTICE.

         [¶1.] 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.

         Facts and Procedural History

         [¶2.] 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[1] 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.

         [¶3.] 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.

         [¶4.] 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.

         [¶5.] 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.

         Decision

         [¶6.] 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.

         [¶7.] 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. ...


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