Posted by: Patricia Salkin | November 7, 2020

SD Supreme Court Reverses Grant of Summary Judgement on CAFO Challenge Based on Standing

This post was authored by Matthew Loescher, Esq.

Steve and Ethan Schmeichel applied to the Turner County Zoning Office for a conditional use permit to operate a large concentrated animal feeding operation (“CAFO”). The CAFO would include a 5,400-head sow facility with 2,000 swine over 55 pounds. The Turner County Board of Adjustment voted unanimously to approve the Schmeichels’ application. Jeffery Powers and Urban-Reasonover petitioned the circuit court for a writ of certiorari under SDCL 11-2-61. On cross-motions for summary judgment, the circuit court dismissed the petitioners’ appeal, holding that they failed to show they were persons aggrieved and therefore lacked standing.

On appeal, Petitioners submitted an affidavit from Urban-Reasonover and expert reports from appraiser Shaykett and Jitnikovitch to support their claim that they “might be able affirmatively to show” that Urban-Reasonover was aggrieved because the Board’s decision imposed a burden on Urban-Reasonover in her personal capacity as distinguished from any grievance she might suffer in her capacity as a member of the general public. Specifically, Urban-Reasonover testified that her property was 3/4 of a mile from where the proposed CAFO would be built, and that she has “considered operating a bed and breakfast from her property in the future for retirement income.” If the CAFO was constructed as proposed, she argued, the “noxious odors and noise will unreasonably invade her property and annoy the comfort and repose of her property.” Appraiser Shaykett’s report reflected his expert opinion that Urban-Reasonover’s property, with the proposed CAFO constructed and operating, would reduce in value by $48,000.

While the Schmeichels contended that the Right to Farm Covenant established that the Petitioners’ alleged inconveniences and discomforts were similarly suffered by other residents of the county, the court found that the above evidence Petitioners offered supported a finding that the proposed CAFO would injure them beyond the inconveniences and discomforts related in the Covenant. Accordingly, the circuit court’s decision to grant summary judgment for an inadequate showing of standing was reversed.

 Powers v Turner County Board of Adjustment, 2020 WL 6494709 (SD 11/4/2020)

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