Posted by: Patricia Salkin | June 28, 2016

SD Supreme Court Remands Challenge to Condition Use Permit Granted for a CAFO

Lake Hendricks Improvement Association, City of Hendricks, Minnesota, and Norris Patrick (Petitioners) petitioned the circuit court for a writ of certiorari and challenged the Board’s decision to grant Killeskillen a CUP for a concentrated animal feeding operation (CAFO). Petitioners asserted that the Board acted without jurisdiction when it granted the CUP because Brookings County failed to validly enact its ordinances in 2007 governing CUPs. The circuit court refused to consider whether the county validly enacted the ordinance, as it found such review would be outside the scope of Petitioners’ writ challenging the board’s decision.

On appeal, Killeskillen argued that the circuit court was without subject matter jurisdiction to consider the merits of Petitioners’ writ because Petitioners are not persons or entities entitled to appeal under SDCL 11–2–61. Here, the court found that Legislature specifically gave the circuit court the power to act under SDCL chapter 11–2, which states, “upon the presentation of the petition, the court may allow a writ of certiorari directed to the board of adjustment to review the decision of the board of adjustment.” The statute identifies those entitled to appeal as “any person or persons, jointly or severally, aggrieved by any decision of the board of adjustment, or any taxpayer … of the county.” This description of plaintiffs is unlike those described in SDCL 7–8–27 and SDCL 7–8–27 which identified one classification: “any person aggrieved.” Therefore, under the plain language of SDCL 11–2–61, a taxpayer in Brookings County may appeal a board of adjustment’s decision. Because Norris Patrick was a taxpayer in Brookings County, he had standing under SDCL 11–2–61.

Finally, in 2007, the Brookings County Commission adopted a zoning ordinance under SDCL chapter 11–2 specifying the Board as the approving authority. However, Petitioners presented evidence to the circuit court that the Brookings County Commission failed to follow the dictates of chapter 11–2 when it adopted its 2007 Ordinances. The court found that if Petitioners were correct, and the County failed to adopt a zoning ordinance pursuant to chapter 11–2, the Board would be without jurisdiction to approve Killeskillen’s application for a CUP. Accordingly, the court found that the circuit court erred when held that such review is beyond the scope of a writ under SDCL chapter 11–2, and held that a remand of the case was necessary to examine Petitioners’ claim that the Board did not have jurisdiction over the matter.

Lake Hendricks Improvement Assoc. v Brookings County Planning and Zoning Comm’n, 2016 WL 3556757 (SD 6/28/2016)



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