Posted by: Patricia Salkin | August 10, 2017

SD Supreme Court Reverses Denial of Building Permit to Hog Barn Finding it Fit Definition of Farm or Ranch Under Zoning Ordinance

Nicholas and Donnelle Hoffman, property owners in Douglas County, that their neighbor Douglas Luebke 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. Specifically, they argued that Luebke’s hog barn would house fewer than 1,000 animal units and did not constitute an animal feeding operation under the ordinance. The circuit court denied the Hoffmans’ request.
On notice of review, Van Wyk contended that the circuit court erred when it determined that Luebke’s hog barn was not a “farm” or “ranch” under the ordinance. The court noted that while the 10 acres used for the hog barn may not have involved cultivation, it was nonetheless a component of “an area of twenty five … acres or more” that involved growing farm products. As such, the court held that the hog barn was a permitted use under the ordinance.
The Hoffmans next argued that even if the use of the hog barn was permitted, the application submitted by Luebke did not conform to the ordinance’s other requirements. Specifically, the Hoffmans claimed the hand-drawn site plan drawn by Luebke  was “not detailed” or drawn “to scale,” and that that Van Wyk never received a written order from the Board of Adjustment directing her to otherwise issue the building permit. The court found this point irrelevant, however, as construction of the facility had already been completed at the time of trial. As such, issuing a writ of mandamus to revoke the permit now would be unavailing. The court therefore reversed the holding that the building permit should not have been issued, and affirmed the denial of the Hoffmans’ writ of mandamus.

Hoffman v Van Wyk, 2017 WL 3426532 (SD 8/9/2017)


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