Posted by: Patricia Salkin | July 28, 2014

SD Supreme Court Holds Statutory Process for Challenging CAFO CUP Decision Did Not Violate Equal Protection

The Moody County Board of Adjustment granted a conditional use permit to allow a concentrated animal feeding operation in Moody County. Shawn Tibbs, Virgil Stembaugh, and Gene and Janet Gullickson petitioned the circuit court for a writ of certiorari challenging the board of adjustment’s decision to grant the conditional use permit. Petitioners argued that the statutory scheme governing appeals to circuit courts from county-level decisions on conditional use permits violated their equal protection rights. The circuit court denied the writ and this appeal ensued.

After finding that the Moody County Board of Adjustment had both appellate and original jurisdiction, the court applied the traditional two-part test for claims that a statute violates equal protection: (1) does the statute create an arbitrary classification among citizens, and (2) “if the classification does not involve a fundamental right or suspect group,” is there a rational relationship “between a legitimate legislative purpose and the classification created”? On the first prong, the court concluded that, “[w]hen applied, the statute [SDCL 11–2–17.3] gives every county in South Dakota the same opportunity to choose which entity they would like to place the conditional use authority in.” Thus, the court found that the Legislature did not create a classification. The court determined that a legitimate legislative purpose existed in the allowance of flexibility to each county on zoning issues and that differing standards of review are rationally related to that purpose. It concluded that the petitioners failed to meet their burden that there is no rational relationship between the legitimate legislative purpose and the classification created and denied their petition for a writ of certiorari.

Tibbs v Moody County Board of Commissioners, 2014 WL 3368044 (SD 7/9/2014)

The opinion can be accessed at:

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