#27232-a-DG
2015 S.D. 54
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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GRANT COUNTY CONCERNED
CITIZENS and TIMOTHY A. TYLER, Plaintiffs and Appellants,
v.
GRANT COUNTY BOARD OF
ADJUSTMENT, THOMAS ADLER,
LORELEI BRANDT, DAVID FORRETTE,
RICHARD HANSEN, NANCY JOHNSON,
GARY LINDEMAN, DOUG STENGEL,
GEOFF STREET, and TETON, LLC, Defendants and Appellees.
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APPEAL FROM THE CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
GRANT COUNTY, SOUTH DAKOTA
****
THE HONORABLE ROBERT L. TIMM
Judge
****
MITCHELL A. PETERSON of
Davenport, Evans, Hurwitz
& Smith, LLP
Sioux Falls, South Dakota Attorneys for plaintiffs
and appellants.
ZACHARY W. PETERSON
JACK H. HIEB of
Richardson, Wyly, Wise, Sauck
& Hieb, LLP
Aberdeen, South Dakota Attorneys for defendants
and appellees Grant County
Board of Adjustment and its
individual members.
JAMES S. SIMKO of
Cadwell, Sanford, Deibert & Garry, LLP
Sioux Falls, South Dakota Attorneys for defendant and
appellee Teton, LLC.
****
CONSIDERED ON BRIEFS
ON MARCH 26, 2015
OPINION FILED 06/24/15
#27232
GILBERTSON, Chief Justice
[¶1.] Grant County Concerned Citizens (GCCC) and Timothy A. Tyler
(Tyler) appeal the circuit court’s affirmance of the Grant County Board of
Adjustment’s 1 (the Board) decision to approve Teton LLC’s application for a
conditional use permit to construct a concentrated animal feeding operation
(CAFO). GCCC 2 asserts that Teton’s proposed project violates the Zoning
Ordinance for Grant County (the ZOGC) and that, consequently, the Board’s
decision was illegal. GCCC also appeals the circuit court’s order striking Tyler’s
affidavit from the record. We affirm.
Facts and Procedural History
[¶2.] On December 18, 2012, Teton filed an application with the Grant
County zoning officer for a conditional use permit to construct and operate a Class
A CAFO in Grant County. In the application, which was available for public
review, Teton indicated that the CAFO would house 6,616 swine larger than 55
pounds (referred to as “finisher” swine in the ZOGC) and 1,200 swine smaller than
55 pounds (referred to as “nursery” swine in the ZOGC).
[¶3.] The Board scheduled a hearing for January 14, 2013, to consider
Teton’s application. In compliance with section 504(2) of the ZOGC, Grant County’s
zoning officer published notice of the hearing “once ten (10) days prior to the
hearing in a paper of general circulation in the area affected.” The published notice
1. The Board’s membership consists of the Grant County Planning Commission
plus four alternates appointed by the Board of Grant County Commissioners.
2. References in this opinion to GCCC should be understood to include Tyler
except where specifically noted otherwise.
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mistakenly reversed the number of finisher and nursery swine listed in the
application, instead reporting the CAFO would house no more than 6,616 swine
smaller than 55 pounds and 1,200 swine larger than 55 pounds. However, the
published notice did indicate the correct number of total swine and that the CAFO
was categorized as a Class A CAFO—the largest classification, consisting of 2,000
or more “animal units.” 3
[¶4.] The scheduled hearing took place on January 14, 2013. The Board
addressed the error in the published notice at the beginning of the hearing, but the
record does not indicate that any concerns were raised or objections noted at that
time. Approximately 200 people attended the hearing. After Teton presented its
information to the Board and answered questions from the Board’s members, the
Board opened the hearing to public comment. Every member of the public present
who wished to comment—whether an opponent or a proponent—was allotted five
minutes to speak. Although Teton anticipated using a road jointly maintained by
Melrose and Big Stone Townships, it failed to directly notify Melrose Township of
the hearing. Nevertheless, at least one individual who spoke at the hearing
indicated the Township was aware of the hearing and had discussed the proposed
CAFO.
3. An “animal unit” is a unit of measurement utilized by the ZOGC in order to
uniformly apply the CAFO regulations to varying types of livestock. One
head of “feeder or slaughter cattle” equals one animal unit. Finisher swine
are 0.4 animal units per head, and nursery swine are 0.1 animal units per
head. Thus, 2,000 animal units could consist of 5,000 finisher swine, 20,000
nursery swine, or some combination thereof.
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[¶5.] Opponents of the application, including Kathy Tyler (Tyler’s wife) and
other members of GCCC, raised several substantive concerns with Teton’s
application. Mrs. Tyler informed the Board that if Teton’s application was
approved, the CAFO would be located—in violation of the ZOGC—within 2,640 feet
of a newly constructed well on the Tyler property. In response, one of Teton’s
representatives speculated that the Tylers dug the “well” merely to frustrate Teton’s
application. The record does include a facsimile of a South Dakota water well
completion report that indicates the Tylers’ excavation was completed on December
18, 2012—the same day Teton submitted its application for the conditional use
permit. The facsimile itself was generated on December 19, and the report was
completed by the firm that dug the excavation. Although the excavation produced
12 gallons of water on December 18, the report does not indicate when the
excavation began or how long it was in operation before producing the 12 gallons.
[¶6.] GCCC also asserted a number of other deficiencies in Teton’s
application. GCCC claimed Teton’s manure management and operation plan
identified an insufficient number of acres for the disposal of manure produced by
the CAFO. It further claimed Teton “failed to demonstrate the ability to obtain
[sufficient] amounts of water from Grant–Roberts Rural Water System.” GCCC
also alleged Teton misrepresented: that independent farmers were involved with
the CAFO, that the principals of the CAFO operating entity had no stake in the
CAFO venture, and that the proposed site is located in a sparsely populated area.
Finally, GCCC raised a number of environmental and economic concerns. The
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Board ultimately determined that the Tylers’ excavation was not a “well” within the
meaning of the ZOGC setback requirement and approved Teton’s application.
[¶7.] GCCC appealed to the circuit court, which initially held that SDCL
chapter 11-2 violated the South Dakota Constitution’s Equal Protection Clause by
applying de novo review to the appeals of some county decisions on conditional use
permits and certiorari review to others. We reversed on appeal, having recently
reversed another circuit court decision on the same issue. Under the subsequent
certiorari review, the circuit court agreed that the excavation dug on the Tylers’
property was not a well within the meaning of the setback because it was dug for
the purpose of frustrating the application rather than for obtaining groundwater.
The court concluded the Board had jurisdiction over Teton’s application and
pursued its authority in a regular manner.
[¶8.] Nearly three weeks after the circuit court sent its letter of decision to
the parties, but prior to the entry of judgment, GCCC submitted an affidavit signed
by Tyler explaining the purpose of the excavation was to obtain water for his horse
herd. The Board and Teton moved to strike the affidavit from the record. The
circuit court granted the motion.
[¶9.] GCCC appeals, raising two issues:
1. Whether the Board regularly pursued its authority in
granting Teton’s application for a conditional use permit.
2. Whether the circuit court erred in striking Tyler’s
affidavit.
Standard of Review
[¶10.] Our review of a board of adjustment’s decision is limited. “Any
person . . . aggrieved by any decision of the board of adjustment . . . may present to
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a court of record a petition . . . setting forth that the decision is illegal, . . . specifying
the grounds of the illegality.” SDCL 11-2-61. “Upon the presentation of the
petition, the court may allow a writ of certiorari directed to the board of adjustment
to review the decision . . . .” SDCL 11-2-62. “The review upon writ of certiorari
cannot be extended further than to determine whether the . . . board . . . has
regularly pursued [its] authority . . . .” SDCL 21-31-8. “With a writ of certiorari, we
do not review whether the [board’s] decision is right or wrong.” Duffy v. Cir. Ct., 7th
Jud. Cir., 2004 S.D. 19, ¶ 33, 676 N.W.2d 126, 138. “A board’s actions will be
sustained unless it did some act forbidden by law or neglected to do some act
required by law.” Jensen v. Turner Cnty. Bd. of Adj’t, 2007 S.D. 28, ¶ 4, 730 N.W.2d
411, 413 (quoting Elliott v. Bd. of Cnty. Comm’rs, 2005 S.D. 92, ¶ 14, 703 N.W.2d
361, 367).
Analysis and Decision
[¶11.] 1. Whether the Board regularly pursued its authority in
granting Teton’s application for a conditional use permit.
[¶12.] GCCC asserts the Board did not regularly pursue its authority in a
number of ways. First, GCCC asserts it presented “indisputable proof” to the Board
that a private well existed within the setback distance prohibited by the ZOGC.
Second, GCCC asserts Teton’s manure management and operation plan did not
comply with the ZOGC. Third, GCCC asserts Teton failed to give notice to Melrose
Township. Fourth, GCCC asserts Teton’s nutrient management plan was deficient.
Fifth, GCCC asserts it was denied due process because: (1) it did not receive
adequate notice, (2) the Board and the County zoning officer prevented it from
making copies of Teton’s application, and (3) the Board imposed a five-minutes-per-
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person limitation on public comments. Sixth, GCCC asserts the Board’s decision
was based on fraudulent information. Seventh, and finally, GCCC asserts the
Board failed to consider the “environmental, community, and economic impacts
Teton’s CAFO will have.”
Private well
[¶13.] GCCC asserts the ZOGC “unambiguously precluded the Board from
granting a [conditional use permit]” to Teton because of the presence of a well
within 2,640 feet of the proposed CAFO. Section 1304(6) of the ZOGC generally
requires any new CAFO to be at least 2,640 feet away from any private well. The
ZOGC does not seem to provide a definition for the word well. Instead, GCCC
directs us to a definition located in South Dakota’s statutes on water rights. SDCL
46-1-6(18) defines well as “an artificial excavation or opening in the ground, made
by means of digging, boring, drilling, jetting, or by any other artificial method, for
the purpose of obtaining groundwater.” GCCC asserts that “[t]he Board had before
it indisputable proof that there was an artificial opening in the ground, made by
means of an artificial method, for the purpose of obtaining groundwater[,] . . .
within 2,640 feet of the proposed CAFO.” Therefore, GCCC concludes, “the Board
arbitrarily and willfully disregarded undisputed proof.” Rather than dispute the
validity of applying this definition to the ZOGC, the Board and Teton instead argue
the issue is outside the scope of our review because the Tylers’ purpose in
excavating was a factual dispute resolved by the Board. The Board asserts “there
were evidentiary disputes about whether or not the hole in the ground on the
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Tylers’ property was truly a ‘well,’ and whether its purpose was to obtain
groundwater or merely to frustrate Teton’s permit.”
[¶14.] We agree that the existence of a well within the setback presented a
factual dispute for the Board to resolve. At the hearing, in response to Kathy
Tyler’s presentation, one of Teton’s representatives asserted the Tylers excavated
for the sole purpose of frustrating Teton’s application. Considering the well
completion report offered by Kathy Tyler indicated the excavation had been
completed on the same day that Teton submitted its application, the Board could
have considered the timing of the excavation—though circumstantial—to support
Teton’s assertion that it was meant to frustrate the application. According to the
hearing’s minutes, Teton’s engineer also told the Board he “made some calls” and
was told a hole is considered a well “when it is grouted and the casing is developed
and installed and the stem is down in the well.” He told the Board that the Tylers’
excavation did not meet any of these requirements at the time Teton submitted its
application. Although the parties now dispute the existence of a well within the
context of the statutory definition provided by SDCL 46-1-6(18), we see nothing in
the ZOGC to suggest the Board was bound by this definition in its decision to
approve Teton’s application.
[¶15.] Nevertheless, GCCC maintains that “[i]t was undisputed that there
was an artificial opening in the ground, made by means of an artificial method,
which obtained groundwater[,] . . . within 2,640 feet of the proposed CAFO.” While
this statement is true, GCCC has materially misstated the statutory definition of
the word well that it originally invoked. SDCL 46-1-6(18) says “for the purpose of
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obtaining groundwater” and not “which obtains groundwater.” 4 While there does
not seem to be any dispute that the Tylers claimed some amount of water from their
excavation, the record clearly reflects a dispute as to their motivation in excavating.
Thus, GCCC’s claim that “Respondents do not and cannot dispute that a well
existed within the setback” is flatly incorrect.
[¶16.] Nor are we persuaded by GCCC’s analysis of the underlying purpose
behind the ZOGC. GCCC asserts that “the Ordinances do not allow for any
exceptions to the well setback requirement” and that “[t]he purpose of the well
setback requirement is to prevent pollution to groundwater.” These assertions seem
to be contradicted by the ZOGC. Section 1304(6) specifically excludes wells owned
by the operator of the CAFO from the setback requirement. If GCCC’s theory of the
purpose behind the ZOGC is correct—i.e., the purpose is to prevent pollution from
entering groundwater—it would make little sense to be concerned with a well on
another property a half mile away, yet not be concerned about polluting
groundwater at the center of waste production. Considering this exclusion, the
more likely purpose behind the setback requirement seems to be to prevent the
disruption of existing water supplies to the neighbors of a proposed CAFO.
[¶17.] We are satisfied that the Board regularly pursued its authority with
respect to approving the application despite the Tylers’ claim that they dug a well
4. GCCC asserts that “[t]he phrase ‘for the purpose of obtaining groundwater’
relates to the opening in the ground.” We disagree. The phrase “for the
purpose of obtaining groundwater,” like the phrase “by means of digging . . .
or by any other artificial method,” relates to the verb made. See SDCL 46-1-
6(18) (emphasis added). Regardless, there is no distinction material to this
dispute between the purpose of an opening in the ground and the purpose of
making the opening in the ground.
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within the setback. While it is undisputed that the Tylers excavated on their
property on December 18, 2012, it is apparent from the record that the excavation’s
status as a well has been in dispute since at least the time of the hearing. Not only
was the purpose of the excavation in dispute, Teton’s engineer also challenged its
status from a mechanical perspective. Because “[c]ertiorari cannot be used to
examine evidence for the purpose of determining the correctness of a finding[,]”
Elliott, 2005 S.D. 92, ¶ 14, 703 N.W.2d at 367 (quoting Hines v. Bd. of Adj’t of City
of Miller, 2004 S.D. 13, ¶ 10, 675 N.W.2d 231, 234), we do not decide whether we
would have reached the same conclusion as the Board. We decide only that the
Board regularly pursued its authority on this issue.
Manure management and operation plan
[¶18.] GCCC asserts Teton’s proposed manure management and operation
plan did not meet the requirements of the ZOGC “because Teton significantly
overstated the amount of land on which it could apply manure.” According to
GCCC, Teton entered into 16 contracts providing 2,461 acres of land in which to
inject manure. 5 GCCC asserts, however, that “[h]alf of the contracts Teton
identified include land on which drainage exists” and that “some of the contracts
were either signed by an unauthorized person, overstated the actual amount of land
provided,” or were otherwise incapable of accepting manure. Thus, GCCC
concludes, “[t]he Board’s failure to ensure Teton’s manure plan complied with the
Ordinances demonstrates that it failed to regularly pursue its authority[.]”
5. At the hearing, Teton’s engineer told the Board that Teton had secured
additional land in which to dispose of manure, bringing the total to
approximately 3,500 acres.
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[¶19.] We are not convinced that the Board failed to regularly pursue its
authority on this issue. Although section 1304(10) of the ZOGC requires the
application of manure to be set back from certain water sources and structures, an
entire property is not rendered unusable by the presence of such setback. Even if
the Board was required to accept as true GCCC’s assertion that Teton overstated
the amount of available land, GCCC offers no estimate of the true available acreage.
Without doing so, claiming that Teton overstated the available acres is not
synonymous with asserting the true number of available acres was insufficient.
Furthermore, section 1304(4) offers little in the way of specific requirements for a
manure management and operation plan. 6
6. Section 1304(4) of the ZOGC states:
Classes A, B, C, and D Concentrated Animal Feeding Operations
must submit a Manure Management and Operation Plan.
A. Plan must include:
1. The location and specifics of proposed animal
manure facilities.
2. The operation procedures and maintenance of
manure facilities.
3. Plans and specifications must be prepared or
approved by a registered professional engineer, or a
Natural Resource Conservation Service (NRCS)
engineer. Waste treatment facilities will require
inspection by an engineer and as-built plans to be
submitted to the County Zoning Officer.
4. Animal manure shall not be stored longer than
two years.
5. Manure containment structures shall provide for
a minimum design volume of three hundred sixty-
five (365) days of storage.
6. Producers shall keep records on manure
applications on individual fields which document
(continued . . .)
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[¶20.] Although GCCC does not attempt to quantify the true available
acreage or assert such area was insufficient, it does assert that “Teton’s application
recognized the inadequacy of its manure plan, admitting that the CAFO would
produce 169,226 pounds of phosphorus but that it only had enough land to account
for 100,438 pounds of phosphorus.” However, GCCC bases this claim on a
“phosphorus and acreage assessment” included on page three of Teton’s initial
nutrient management plan. 7 This assessment does not address the capacity of
available acres to absorb manure. Instead, and contrary to GCCC’s
representations, this assessment reports the total pounds of phosphorus “available
for crops” at 169,226 and the total pounds of phosphorus “required by fields” at
100,438.
[¶21.] We are satisfied that the Board regularly pursued its authority with
respect to approving the application despite GCCC’s claim that Teton’s manure
management and operation plan failed to comply with the ZOGC. GCCC’s claims
________________________
(. . . continued)
acceptable manure and nutrient management
practices have been followed. These records shall
include soils test results for surface two feet of soil,
actual and projected crop yields, nutrient analysis
of manure, and information about date, rate and
method of manure applications for individual fields.
B. As a condition of the permit, the County Board of
Adjustment may require the producer to participate in
environmental training programs and become a certified
livestock manager.
7. A nutrient management plan is required by section 1304(3) of the ZOGC.
This requirement is separate from section 1304(4), which requires a manure
management and operation plan.
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are far from undisputed and, consequently, are factual determinations properly
resolved by the Board.
Failure to give notice to Melrose Township
[¶22.] GCCC asserts Teton failed to give notice to Melrose Township. Section
1304(12) of the ZOGC is titled “Information Required for Class A and B
Concentrated Animal Feeding Operation Permit.” Section 1304(12)(K) requires,
“Notification of whomever maintains the access road (township, county and state).
Notification of public water supply officials.” Melrose and Big Stone Townships are
jointly responsible for maintenance of the access road. It is undisputed that Teton
provided notice to Big Stone Township. The Board and Teton argue that whether
Teton notified Melrose Township is irrelevant because it had actual notice. The
hearing’s minutes reflect that an individual named Milt Stengel, who spoke during
the public comments portion of the hearing, stated that Melrose and Big Stone
Townships had previously discussed the proposed CAFO and decided not to upgrade
the access road. He also indicated that the Townships might not permit pipelines in
the ditches, but that an attorney for one of the townships advised that individual
land owners might permit pipelines to run within their properties. The hearing
minutes do not seem to indicate whether Mr. Stengel spoke on behalf of either or
both of the townships.
[¶23.] We are satisfied that the Board regularly pursued its authority with
respect to approving the application despite Teton’s failure to directly notify
Melrose Township of the proposed CAFO. GCCC’s assertion that “Teton’s failure to
provide Melrose Township notice was a straightforward noncompliance with the
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Ordinances” is not supported by the text of the ZOGC. Section 1304(12)(K) requires
“[n]otification of whomever maintains the access road[,]” (emphasis added), not
“notification [by the CAFO operator to] whomever maintains the access road.” In
other words, the ordinance did not require Teton to notify; rather, it required
Melrose Township be notified. Regardless of whether or not Mr. Stengel spoke at
the hearing as Melrose Township’s representative, his uncontroverted statements to
the Board provided a basis for it to conclude Melrose Township had actual notice.
As noted above, we do not decide whether we would have reached the same
conclusion, Elliott, 2005 S.D. 92, ¶ 14, 703 N.W.2d at 367 (quoting Hines, 2004 S.D.
13, ¶ 10, 675 N.W.2d at 234), only that the Board regularly pursued its authority in
this regard.
Nutrient management plan
[¶24.] GCCC asserts Teton’s nutrient management plan did not meet
ordinance requirements. During her presentation, Kathy Tyler asserted the CAFO
would require 20,000 to 40,000 gallons of water per day and that “Teton failed to
demonstrate the ability to obtain [this] level of water[.]” According to GCCC, the
ZOGC’s nutrient-management-plan requirement “plainly included the ability to
secure sufficient water for the CAFO.” This assertion is unsupported and, as such,
is waived. See SDCL 15-26A-60(6); Veith v. O’Brien, 2007 S.D. 88, ¶ 50, 739 N.W.2d
15, 29. Section 1304(3) of the ZOGC, which states the purpose and requirements of
a nutrient management plan, does not address the water requirements of a CAFO.
From a review of that section, it appears the purpose of a nutrient management
plan is to prevent the oversaturation of manure disposal land with certain nutrients
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like nitrogen and phosphorus, which has nothing to do with whether a CAFO has
secured a sufficient water supply for its operation.
Due process
[¶25.] GCCC asserts it was denied due process of law in several respects.
First, GCCC asserts the Board provided inadequate notice of the hearing.
According to GCCC, “[t]he notice grossly understated the size of the proposed
CAFO, which made preparing a full and complete opposition to the application
impossible and made those individuals living farther away from the CAFO less
motivated to voice opposition.” “To establish a procedural due process violation, a
plaintiff must demonstrate that he has a protected property or liberty interest at
stake and that he was deprived of that interest without due process of law.”
Osloond v. Farrier, 2003 S.D. 28, ¶ 16, 659 N.W.2d 20, 24 (per curiam) (quoting
Hopkins v. Saunders, 199 F.3d 968, 975 (8th Cir. 1999)). We have previously
recognized that the notice and hearing requirements of chapter 11-2 “afford[] the
affected landowners with the opportunity to formally voice their concerns and
present evidence in opposition to opposed measures[.]” Schafer v. Deuel Cnty. Bd. of
Comm’rs, 2006 S.D. 106, ¶ 13, 725 N.W.2d 241, 246. It is undisputed that the
Board posted notice of the hearing according to this requirement. Therefore, the
only question is whether the transposition of the number of finisher and nursery
swine rendered that notice ineffective.
[¶26.] GCCC’s argument is misconceived for several reasons. First, section
504(2) of the ZOGC simply requires: “Notice of hearing shall be published once ten
(10) days prior to the hearing in a paper of general circulation in the area affected.”
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Apparently, under the ZOGC, the Board is not specifically required to provide the
number and type of livestock to be housed at a proposed CAFO. Even so, the
published notice clearly stated that the CAFO at issue was categorized as Class A—
the largest possible classification. Further, the Board addressed the publication
mistake at the beginning of the meeting, prior to discussing Teton’s application.
The minutes of the hearing do not reflect that either GCCC or Tyler raised any
concerns or objected to the Board considering the application at that time.
Although additional interested land owners might have attended or more vigorously
objected if the mistake had not occurred, GCCC has not produced evidence of a
single such individual. As it stands, both Tyler and GCCC—the actual appellants
here—attended the hearing. Finally, GCCC’s argument that the publication
mistake made “preparing a full and complete opposition to the application
impossible” is conclusory and meritless. The correct number of finisher and nursery
swine was included in Teton’s application, which GCCC had an opportunity to
review prior to the hearing.
[¶27.] The cases cited by GCCC in support of this alleged deprivation of due
process are not persuasive. GCCC first directs us to Gas Mart Corp. v. Board of
Supervisors of Loudoun County, 611 S.E.2d 340 (Va. 2005). In that case, the
Supreme Court of Virginia held that notice of a public hearing was inadequate
because “[t]here [was] no description or summary of the content of those policies,
and the notices [did] not indicate the particular areas of the County that would be
affected by the proposed policies.” Id. at 346. The hearing in question concerned
proposed amendments to county zoning ordinances, rather than the consideration of
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a conditional use permit. In contrast to the ZOGC, which does not require
specificity or any particular level of detail, Virginia state law actually required such
notice to “contain a descriptive summary of the proposed action[.]” Id. at 344
(quoting Va. Code § 15.2-2204(A) (2004)).
[¶28.] GCCC also directs our attention to Rockaway Shoprite Associates, Inc.
v. City of Linden, 37 A.3d 1143 (N.J. Super. Ct. App. Div. 2011), another case
concerning proposed amendments to ordinances instead of a conditional use permit.
In that case, the court held that notice of a hearing was inadequate because,
“instead of the ‘brief summary of the ordinance’s main objectives and provisions’
clearly and plainly mandated by the statute, the public notice merely advised that
the zoning [was] being amended as to the properties identified by common name
and by lot and block number.” Id. at 1150. The court rejected the “general,
standardized language” of the notice because it “provide[d] no real notice apprising
the public of what exactly [was] being proposed.” Id. In contrast, the published
notification in the present case left no room to guess what was being proposed: a
conditional use permit to construct a Class A CAFO housing 7,816 swine.
[¶29.] GCCC also asserts it was deprived of due process because the Board
and Grant County’s zoning officer improperly restricted GCCC’s access to Teton’s
application. SDCL chapter 1-27 ensures public access to public records held by
governmental agencies. SDCL 1-27-1 provides:
Except as otherwise expressly provided by statute, all citizens of
this state, and all other persons interested in the examination of
the public records, as defined in § 1-27-1.1, are hereby fully
empowered and authorized to examine such public record, and
make memoranda and abstracts therefrom during the hours the
respective offices are open for the ordinary transaction of
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business and, unless federal copyright law otherwise provides,
obtain copies of public records in accordance with this chapter.
(Emphasis added.) GCCC asserts that “the Board and the County Zoning Officer
refused to allow [GCCC] to make copies.” The Board counters that “[w]hile
Petitioners were not permitted to take the Application off-site to copy, at no time
were they denied access to the Application.” GCCC’s use of information contained
in the application seems to confirm that GCCC did, in fact, have an opportunity to
“examine such public record, and make memoranda and abstracts therefrom[.]” See
id.
[¶30.] There are other problems with GCCC’s argument. First, GCCC offers
no supporting authority for the conclusion that it had a property or liberty interest
in using the zoning office’s equipment to make copies of Teton’s application. More
importantly, however, GCCC does not assert that it actually attempted to utilize
statutory procedure to obtain these documents. “If an informal request is denied in
whole or in part by the custodian of a document or record, a written request may be
made by the requestor . . . .” SDCL 1-27-37. A written request either forces the
custodian to respond or results in a default denial of the request. Id. A denial,
however, triggers the requestor’s right to “commence a civil action by summons or,
in the alternative, file a written notice of review with the Office of Hearing
Examiners.” SDCL 1-27-38. There is nothing to indicate that GCCC pursued this
avenue of relief or requested the hearing be postponed. GCCC “cannot complain of
a violation of procedural due process when [it] has not availed [itself] of existing
procedures.” Anderson v. Douglas Cnty., 4 F.3d 574, 578 (8th Cir. 1993). Therefore,
GCCC has not “demonstrate[d] that [it had] a protected property or liberty interest
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at stake and that [it] was deprived of that interest without due process of law.”
Osloond, 2003 S.D. 28, ¶ 16, 659 N.W.2d at 24 (per curiam) (quoting Hopkins, 199
F.3d at 975).
[¶31.] Third, GCCC asserts the five-minute limitation imposed on public
commentators at the hearing was improper because “Teton was given an unlimited
amount of time to present evidence and testimony.” GCCC misunderstands what
due process requires. “Due process requires adequate notice and an opportunity for
meaningful participation.” Id. ¶ 19 n.4, 659 N.W.2d at 25 n.4. GCCC has offered no
authority for the conclusion that, under South Dakota law, “meaningful
participation” is defined as “equal time.” 8 Despite its claim that one of its members
“was not permitted to present all of the information she desired at the hearing[,]”
GCCC fails to actually articulate any such allegedly suppressed information, let
alone assert that the exclusion of such information prevented GCCC from
participating in a meaningful way. Furthermore, as the Board points out, GCCC
was free to submit written information to the Board as well.
8. GCCC cites People ex rel. Klaeren v. Village of Lisle, 737 N.E.2d 1099 (Ill.
App. Ct. 2000), for the proposition that “[t]he Board’s time limitation was a
straightforward suppression of opposition in violation of [GCCC’s] due
process rights.” Klaeren holds little value to this dispute as the Illinois court
construed Illinois statutes that provided extensive procedural safeguards to
property owners in larger municipalities. Id. at 1109. The court, discerning
a “legislative intent favoring greater flexibility in the smaller
municipalities[,]” held that Illinois’s statutory definition of the word hearing
proscribed “[a] proceeding that incorporates an arbitrary time limit without
consideration of the nature of the comments and their relevance to the
factual issues presented[.]” Id. at 1110, 1113-14. GCCC has not directed our
attention to any equivalent statutes in South Dakota. Even if we adopted the
Illinois court’s interpretation of Illinois’s statute, GCCC has not argued that
the Board failed to consider the nature of the comments.
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Fraud
[¶32.] GCCC asserts the Board’s decision was based on fraudulent
information and that “[t]he Board was put on notice of the fraud and inaccuracies
during the hearing, yet made its decision nevertheless. Knowingly making a
decision based on fraudulent information is fraud in itself.” Thus, GCCC concludes,
“[t]he Board’s decision was the product of fraud[.]” Citing Lamar Outdoor
Advertising of South Dakota, Inc. v. City of Rapid City, 2007 S.D. 35, 731 N.W.2d
199, GCCC urges this Court to review the merits. As the Board correctly points out,
GCCC misreads Lamar. “Courts must not review the merits of a petition or
evidence for the purpose of determining the correctness of a finding, in the absence
of a showing that the Board ‘acted fraudulently or in arbitrary or willful disregard of
undisputed and indisputable proof.’” Id. ¶ 21, 731 N.W.2d at 205 (emphasis added)
(quoting Cole v. Bd. of Adj’t of City of Huron, 1999 S.D. 54, ¶ 10, 592 N.W.2d 175,
177). Thus, Lamar does not say a review of the merits is appropriate when a
board’s decision is the product of fraud. As indicated above, Lamar contemplates
scrutinizing the decision of a board when the board itself acts fraudulently. Id.
[¶33.] Even if we agreed with GCCC’s interpretation of Lamar, GCCC has
fallen short of its burden of establishing fraud. GCCC asserts the following:
Teton presented inaccurate information about disposal of
manure on contracted acres. Specifically, Teton presented
contracts signed by someone other than the owner of the
property, contracts requiring injection of manure into lands with
drainage (which is unlawful under Ordinances § 1304(10)),
contracts with inflated acres, and contracts containing CRP land
onto which manure cannot be applied. Teton misrepresented
the fact that independent farmers are involved with the CAFO
operation and that the principals of the proposed CAFO operator
have no stake in the CAFO venture, when there is commonality
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of ownership. Teton misrepresented that the CAFO site is not
densely populated, when that area is one of the most densely
populated rural areas in Grant County.
There are a number of problems with these assertions. Generally, they are largely
conclusory and unsupported. Additionally, GCCC relies on the statutory definition
of deceit. SDCL 20-10-2(2) defines deceit as “[t]he assertion, as a fact, of that which
is not true, by one who has no reasonable ground for believing it to be true[.]”
(Emphasis added.) Even if we believe GCCC’s assertions that these representations
are false, GCCC has also failed to show Teton had no reasonable ground for
believing them to be true.
[¶34.] Individually, GCCC’s assertions have additional problems. As we
discussed above, see supra ¶¶ 18-21, GCCC has not offered any assertion as to the
true acreage available for Teton’s manure disposal. Even if we accept its allegations
as true, GCCC has not even asserted facts sufficient to conclude that the Board’s
decision relied on Teton’s access to the overstated acres in approving the permit.
Similarly, GCCC has not attempted to show that the Board relied on Teton’s
assertions regarding the involvement of independent farmers or the interests of the
CAFO operator’s principals in the venture. Finally, Teton’s assertion that the
CAFO site is not densely populated and GCCC’s assertion that the site is “one of the
most densely populated rural areas in Grant County” are not mutually exclusive.
The former is an absolute measure of population density, while the latter is
measured relative to Grant County, South Dakota; to assert the former is hardly an
act of fraud, by any stretch of the imagination.
[¶35.] GCCC has not alleged that the Board itself acted fraudulently beyond
its decision to accept certain information presented by Teton and to reject certain
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information presented by GCCC. Even under GCCC’s flawed reading of Lamar, it
has failed to show that the Board relied on fraudulent information. Consequently,
we may not review the correctness of the Board’s decision.
Environmental, community, and economic impact
[¶36.] Finally, GCCC asserts the Board acted “arbitrarily or in willful
disregard of undisputed and indisputable proof” when it approved Teton’s
application despite various environmental, community, and economic concerns.
According to GCCC, sections 1300 and 1304 of the ZOGC required the Board to
consider “air, surface water, ground water, aquifer, or land pollution.” Section 1300
of the ZOGC is merely a statement of intent. 9 That section goes on to say, “The
following regulations have been adopted to provide protection against pollution
caused by manure from domesticated animals.” Id. The entirety of Article XIII
carries out the statement of intent; section 1300 does not require the Board to
anticipate and specifically consider every potential environmental consideration an
objector might imagine. Rather, the regulations that follow section 1300 provide
the necessary environmental protection.
[¶37.] GCCC also asserts Teton’s application lacked an odor control plan.
Although such a plan is required by section 1304(5) of the ZOGC, GCCC’s assertion
is meritless. Section F of Teton’s application—titled “Management Plan for Fly and
Odor Control”—clearly sets forth Teton’s plan for minimizing flies and odor. The
application states that Teton will compost dead animals—a practice it asserts is
odorless and regulated by the South Dakota Animal Industry Board. The plan also
9. Literally, the section is titled, “Intent.”
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states Teton’s intent to plant a tree barrier as a visual buffer and to help curb the
migration of potential odor. All of the animals are to be confined in barns—not open
pits—and their manure stored in concrete pits underneath the barns. Finally,
Teton also said, “A certified nutrient applicator will be employed to conduct NMP
field operations with the direction to minimize any application during weekends,
holidays, warm weather evenings, and calm-humid days.” Ultimately, the Board
granted the conditional use permit on the condition that Teton undertake
discussions to “design, install and maintain the most effective bio-filter for the
Phase 1 fans at the facility” and to plant trees “on the site as designed by the
Conservation or NRCS specifications according to the most effective practices.”
[¶38.] Finally, GCCC asserts the Board failed to consider the community and
economic impacts of the CAFO. The Board found “[t]hat evidence presented at the
hearing was sufficient to prove that the granting of the conditional use, with the
conditions imposed by the Board, would not adversely affect the public interest.”
The Board’s decision is not rendered arbitrary simply because it gave less weight to
GCCC’s concerns than it did to the anticipated economic gain of the project. We
cannot substitute our own judgment for that of the Board, nor is GCCC entitled to
relief simply because it would have decided differently.
[¶39.] 2. Whether the circuit court erred in striking Tyler’s
affidavit.
[¶40.] GCCC asserts the circuit court erred in its decision to strike Tyler’s
affidavit from the record. A circuit court that hears an appeal from a board of
adjustment’s decision has discretion to take additional evidence.
If upon the hearing it appears to the court that testimony is
necessary for the proper disposition of the matter, the court may
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take evidence, or appoint a referee to take such evidence as it
may direct and report the evidence to the court with the
referee’s findings of fact and conclusions of law, which constitute
a part of the proceedings upon which the determination of the
court is made.
SDCL 11-2-64 (emphasis added). The operation of this statute—i.e., supplementing
the administrative record on appeal—is clearly triggered by the court’s
determination of need, not by a party’s. Even if the court determines there is such
need, the statute vests discretion in the circuit court to admit—or not—any offered
evidence. As usual, “[e]videntiary rulings made by the circuit court are presumed
correct and are reviewed under an abuse of discretion standard.” Wangsness v.
Builders Cashway, Inc., 2010 S.D. 14, ¶ 11, 779 N.W.2d 136, 140. “An abuse of
discretion is a fundamental error of judgment, a choice outside the range of
permissible choices, a decision, which, on full consideration, is arbitrary or
unreasonable.” State v. Martin, 2015 S.D. 2, ¶ 7, 859 N.W.2d 600, 603 (quoting
Gartner v. Temple, 2014 S.D. 74, ¶ 7, 855 N.W.2d 846, 850).
[¶41.] According to GCCC, “[b]ecause the [circuit court] identified Tyler’s
motivation as an issue that is necessary for the proper disposition of the matter, the
[circuit court] should have taken evidence concerning the same[.]” According to
GCCC, “the Circuit Court was under the impression that it did not have a choice to
accept the affidavit into the record.” GCCC misunderstands the circuit court’s
ruling. 10 The circuit court stated its reason for granting the motion at the motion
hearing, where it said:
10. In its brief, GCCC states: “[T]he Circuit Court’s rationale for striking the
Tyler Affidavit is puzzling.”
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[T]he additional evidence which has been submitted I think
could be received to assist the Court in determining whether the
procedure was legally sufficient before the Board, but by opening
it up to being heard for the purpose of deciding the merits of the
case converts this from a certiorari review to a de novo
review . . . .
The circuit court’s meaning is clear when viewed in the context of a certiorari
review. The circuit court, like this Court, was limited to reviewing whether the
Board regularly pursued its authority. SDCL 21-31-8. Although the information
contained in the Tyler affidavit might have helped resolve the question of the
Tylers’ motivation in digging the excavation on their property—a question which
goes to the merits of the underlying controversy between the parties—the circuit
court concluded the affidavit was not necessary to determine whether the Board
regularly pursued its authority in regard to GCCC’s assertion that a private well
was located within the setback required by the ZOGC. Based on our discussion of
the same, see supra ¶¶ 13-17, we cannot conclude that the circuit court’s decision
was “outside the range of permissible choices[.]” Martin, 2015 S.D. 2, ¶ 7, 859
N.W.2d at 603 (quoting Gartner, 2014 S.D. 74, ¶ 7, 855 N.W.2d at 850). Therefore,
the circuit court did not err in striking Tyler’s affidavit.
Conclusion
[¶42.] GCCC has not presented any “undisputed and indisputable” facts that
the Board ignored; the Board’s disagreement with GCCC as to the weight of its
presented evidence does not mean that the Board acted arbitrarily. We see nothing
in the record to suggest that the Board did not regularly pursue its authority.
Therefore, we affirm on issue one. Because the circuit court did not abuse its
discretion in striking Tyler’s affidavit, we also affirm on issue two.
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[¶43.] ZINTER, SEVERSON, WILBUR, and KERN, Justices, concur.
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