Adolph v. Grant County Board of Adjustment
2017 S.D. 5
| S.D. | 2017Background
- Dustin Nelson applied for a conditional-use permit to build and operate a Class A CAFO (5,500-head dairy) in Grant County; the Board of Adjustment held a public hearing and approved the permit 5–2 with conditions (including DENR approval and synthetic liners for waste ponds).
- Opponents, including Geraldine and Barth Adolph, submitted a 250-page report by out-of-state engineer Kathy Martin criticizing the application, especially about silage leachate/runoff and alleged operator A.J. Bos’s prior environmental violations. Martin did not appear in person.
- At the hearing Nelson’s engineer explained that leachate and runoff would be collected in on-site waste-water ponds and compared the design to a previously approved dairy; the Board adopted a liner requirement suggested by Martin.
- Adolphs sought certiorari review in circuit court challenging the Board’s action; the circuit court affirmed and the Adolphs appealed to the South Dakota Supreme Court.
- The Supreme Court’s review was limited to whether the Board "regularly pursued its authority" and whether there were due-process or bias defects; the Court affirmed in part, reversed in part, and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Board regularly pursued its authority re: pollution/runoff (ZOGC §278 and related) | Nelson’s application failed to explain runoff/leachate management; Board therefore did not properly consider pollution factors | Application and engineering report described collection/storage in ponds; runoff was raised and addressed at hearing | Held: Board regularly pursued its authority; runoff was considered and addressed (no certiorari relief) |
| Whether Board considered prevailing winds (ZOGC §1304(5)) | Board failed to consider prevailing wind direction/topography relevant to odor controls | Nelson’s odor-management plan included controls; prevailing-wind consideration only matters if controls must be added and petitioners did not show prejudice | Held: No relief—even if not explicitly considered, petitioners did not show how it would change outcome; Board’s consideration adequate |
| Whether Board ignored past environmental violations of prospective operator (ZOGC §1304(11)(D) and §218) | Board failed to consider alleged past violations of A.J. Bos, who petitioners say will control/operate the CAFO | Board members testified they did not consider operator’s past violations as relevant; respondents argued no evidence Bos will control the CAFO | Held: Reversed in part — Board applied incorrect legal standard by treating prospective operator’s past violations as always irrelevant; this legal error requires remand for the Board to determine whether Bos will have charge/control and, if so, consider his violations |
| Whether Adolphs were denied due process or heard insufficiently / whether Board exhibited bias | Engineer’s rebuttal supplied a new runoff plan without notice; Board limited public participation and favored applicant’s engineer; Chair showed hostility/bias | Rebuttal reiterated that ponds would capture leachate consistent with the application; public had opportunity to comment; Board heard and summarized opposition and adopted at least one opposition recommendation; credibility determinations are permissible | Held: Denial of due process and bias claims rejected — participation was meaningful, no evidence of actual or unacceptable risk of bias |
Key Cases Cited
- Grant Cty. Concerned Citizens v. Grant Cty. Bd. of Adj’t, 866 N.W.2d 149 (S.D. 2015) (scope of certiorari review and deference to board factfinding)
- Duffy v. Circuit Court, 676 N.W.2d 126 (S.D. 2004) (board’s application of incorrect legal standard renders decision illegal)
- State ex rel. Johnson v. Pub. Utils. Comm’n of S.D., 381 N.W.2d 226 (S.D. 1986) (certiorari will not correct insubstantial errors absent prejudice)
- Armstrong v. Turner Cty. Bd. of Adj’t, 772 N.W.2d 643 (S.D. 2009) (due process requires fair, impartial consideration)
- Hanig v. City of Winner, 692 N.W.2d 202 (S.D. 2005) (test for actual bias or unacceptable risk of bias)
- In re Conditional Use Permit #13-08, 855 N.W.2d 836 (S.D. 2014) (standard for evaluating risk of decisionmaker bias)