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Huber v. Hanson County Planning Commission

Supreme Court of South Dakota

December 4, 2019

2019 S.D. 64
v.
HANSON COUNTY PLANNING COMMISSION and HANSON COUNTY BOARD OF ADJUSTMENT and ITS MEMBERS: MATT BARNARD, EDWARD ENGELMEYER, JEAN FREEMAN, GARY SCHOENROCK, SHARON JARDING, TRISTEN BENDER and DAVID WALDNER IN THEIR OFFICIAL CAPACITIES, and MARY C. WILCOX IN HER OFFICIAL CAPACITY AS HANSON COUNTY ZONING ADMINISTRATOR, Respondents and Appellees, LOREN E. HUBER and AMY NOLAN-HUBER, Petitioners and Appellants, and TRIPLE K LAND, LLC, Intervenor and Appellee.

          CONSIDERED ON BRIEFS SEPTEMBER 30, 2019

          APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT HANSON COUNTY, SOUTH DAKOTA, THE HONORABLE CHRIS GILES Judge.

          R. SHAWN TORNOW Sioux Falls, South Dakota, Attorney for petitioners and appellants.

          JAMES R. DAVIES Hanson County State's Attorney Alexandria, South Dakota and WILLIAM C. GARRY MELISSA R. JELEN Cadwell, Sanford, Deibert & Garry LLP Sioux Falls, South Dakota Attorneys for respondent and appellees.

          BRIAN J. DONAHOE of Donahoe Law Firm Sioux Falls, South Dakota Attorneys for intervenor and appellee.

          JENSEN, JUSTICE.

         [¶1.] Triple K Land, LLC (Triple K) applied to the Hanson County Board of Adjustment (the Board) for a conditional use permit (CUP) to construct a 2, 400-pig nursery facility. Adjacent property owners Loren Huber and Amy Nolan-Huber (Hubers) objected. After the Board granted the CUP, Hubers applied for a writ of prohibition and alternatively designated the application as a verified petition setting forth the illegality of the Board's decision (Application). The Application named the Hanson County Planning Commission (Planning Commission), Board, and individual Board members as Respondents (collectively the County). At a hearing, the circuit court granted Triple K's oral motion to intervene. The court then dismissed the Application, sua sponte, for lack of subject matter jurisdiction. Hubers appeal. We affirm in part, reverse in part, and remand.

         Background

         [¶2.] Triple K owns real property in rural Hanson County, which is zoned for agricultural use. Hubers own property adjacent to Triple K's property. Hubers' property is not their primary residence, but includes a farmhouse they use on weekends, holidays, and during hunting season.

         [¶3.] Triple K requested a CUP, pursuant to the Hanson County Zoning Ordinances, to construct and operate a swine nursery and feeding facility with the capacity to house 2, 400 young pigs. Hubers were concerned with the proposed facility next to their property and planned to object to the CUP. Triple K's request for a CUP proceeded to hearing before the Board on February 20, 2018, prior to the scheduled time. Hubers were not present for the hearing. The Board granted the CUP to Triple K by unanimous vote.

         [¶4.] Following the Board's initial decision, counsel for Hubers raised issues concerning the adequacy of the notice of the hearing, including inaccuracies in the legal description and the listed owners of the property. In response, the Board vacated the CUP, provided new notice, and scheduled a new hearing on Triple K's CUP request. At a hearing on April 18, 2018, Triple K and Hubers were given an opportunity to be heard. The Board asked questions of both Triple K and Hubers regarding the nursery facility and concerns with its operation. The Board delayed a decision on the CUP at the April hearing.

         [¶5.] On May 16, 2018, the Board held another hearing regarding Triple K's request for a CUP. Following the discussion, a motion was made to adopt a resolution approving the CUP. The Board unanimously approved the CUP by resolution entered on June 5, 2018.

         [¶6.] Hubers filed their Application with the circuit court on June 28, 2018. The circuit court contacted the parties to schedule a hearing on the Application, expressing concern that it lacked subject matter jurisdiction. Six days prior to the hearing, Triple K served a motion to intervene and a motion to dismiss the Application for lack of jurisdiction. Triple K's motion to dismiss asserted that the Application was an improper writ of prohibition, that service of process was inadequate, and that Hubers lacked standing to challenge the CUP. Triple K also moved for an expedited hearing on the motions. The same day, the County also served a motion to dismiss arguing essentially the same grounds for dismissal as Triple K asserted. Hubers filed a motion to strike Triple K's motion to intervene and both motions to dismiss.

         [¶7.] At the hearing, the circuit court first addressed the motion to intervene. Triple K conceded that the written motion to intervene was served less than ten days prior to the hearing. Triple K then orally moved to intervene. The court granted Triple K's oral motion to intervene, determining ...


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