2019 S.D. 64
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
FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT HANSON
COUNTY, SOUTH DAKOTA, THE HONORABLE CHRIS GILES Judge.
SHAWN TORNOW Sioux Falls, South Dakota, Attorney for
petitioners and appellants.
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.
J. DONAHOE of Donahoe Law Firm Sioux Falls, South Dakota
Attorneys for intervenor and appellee.
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.
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.
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.
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
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.
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.
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 ...