Posted by: Patricia Salkin | December 9, 2019

SD Supreme Court Reverses Dismissal of Alternative Application for Writ of Certiorari Challenging Board’s Granting of a Conditional Use Permit for a Pig Nursery Facility

This post was authored by Matthew Loeser, Esq.

Triple K Land, LLC owned real property in rural Hanson County, which was zoned for agricultural use. Loren Huber and Amy Nolan-Huber owned property adjacent to Triple K’s property. The Hubers’ property was not their primary residence, but included a farmhouse they used on weekends, holidays, and during hunting season. Triple K applied to the Hanson County Board of Adjustment for a conditional use permit (“CUP”) to construct a 2,400-pig nursery facility, and the Hubers objected. After the Board granted the CUP, the 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. This application named the Hanson County Planning Commission, Board, and individual Board members as Respondents. 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.

The court noted at the outset, that because the Legislature provided a remedy in the form of a writ of certiorari to review county zoning decisions, a writ of prohibition could not be used for judicial review of county zoning decisions. Thus, the circuit court did not err in dismissing the claim for writ of prohibition. The application alternatively sought judicial review through a verified petition alleging the illegality of the Board’s decision. While not using the term “writ of certiorari”, the application requested a writ and cited SDCL 11-2-61, which set forth the procedure for filing a writ of certiorari to challenge county zoning decisions. As to this claim, the application alleged that Hubers were taxpayers and owned property adjacent to the property where Triple K sought approval of the CUP to construct and operate a 2,400-pig nursery operation. The application further alleged that the construction of the nursery facility would result in unmanageable manure and odor control on Hubers’ adjacent property. The court found that these allegations were sufficient to plead an injury unique to the Hubers. Additionally, while the best practice would have been to identify the request as one seeking a writ of certiorari, the court held that the failure to do so did not deprive the circuit court of subject matter jurisdiction under SDCL 11-2-61. Since the Hubers complied with the requirements of SDCL 11-2-61, and the circuit court had subject matter jurisdiction to hear the matter by writ of certiorari.

As a final matter, the court noted that the Hubers did not claim they were surprised or unable to adequately respond to the oral motion to intervene. Moreover, the Hubers did not argue that Triple K was not entitled to intervene as a matter of right. As such, the court held that the circuit court did not abuse its discretion in granting Triple K’s oral motion to intervene before considering the question of subject matter jurisdiction.

Huber v. Hanson County Planning Commission, 2019 WL 6590448 (SD 12/4/2019)

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