972 N.W.2d 464
S.D.2022Background
- Crowned Ridge Wind II applied for a special exception permit (SEP) to build and operate a wind energy system (up to 68 turbines) on agriculturally zoned land in Deuel County under the county Zoning Ordinance.
- The Ordinance authorizes WESs via SEPs and prescribes standards (setbacks, noise limit 45 dBA at non‑participating residences, shadow‑flicker cap, lighting, decommissioning, etc.).
- The Deuel County Board of Adjustment held two public hearings, received studies (including sound and shadow‑flicker analyses), and unanimously approved the SEP; written findings were entered.
- Neighboring non‑participating landowners (Appellants) objected at hearings and sought certiorari review in circuit court, principally alleging excessive noise and shadow flicker and raising claims that the SEP violated SDCL 11‑2‑17.3, created a de facto easement, foreclosed nuisance claims, and violated substantive due process.
- The circuit court upheld the Board under the narrow certiorari standard; the Supreme Court reviewed whether the Board had jurisdiction and regularly pursued its authority and affirmed the Board’s approval of the SEP.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Compliance with SDCL 11‑2‑17.3 | Appellants: SEP improperly treats non‑participating properties as part of the "real property" subject to conditional‑use rules; Board lacked authority without their consent. | Board/Crowned Ridge: Ordinance and SEP process comply with SDCL 11‑2‑17.3; applicants need not obtain permits for every affected neighboring tract; notice/hearings suffice. | Court: Board had jurisdiction; Ordinance satisfies SDCL 11‑2‑17.3; applicants not required to obtain SEPs for every affected neighboring parcel. |
| “De facto easement” | Appellants: SEP grants Crowned Ridge a right to discharge altered light (shadow flicker) over their land akin to an easement without consent. | Board/Crowned Ridge: Shadow flicker is not a discharge of light under easement statute; zoning exercise of police power is distinct from easement law; participating/non‑participating landowners are not similarly situated. | Court: Rejected theory—shadow flicker is not a statutory discharge of light; no novel "de facto easement" created; Ordinance/police power regulation not preempted by easement law. |
| Foreclosure of nuisance remedy (SDCL 21‑10‑2) | Appellants: SEP/Ordinance authorization will bar future nuisance suits if WES complies with permit conditions. | Board/Crowned Ridge: Private wind operator is not a public actor presumptively immune; statute interpreted narrowly; nuisance issue not shown to affect Board's jurisdiction. | Court: Declined to decide on the merits under certiorari review because Appellants did not show how SDCL 21‑10‑2 affected the Board's authority; not properly before the court. |
| Substantive due process / takings | Appellants: As‑applied challenge—this particular project (noise/shadow flicker) is arbitrary, irrational, and deprives use/enjoyment (implying a taking). | Board/Crowned Ridge: Ordinance balances competing interests, sets objective limits; action is not arbitrary or conscience‑shocking; takings and due‑process inquiries are distinct and not shown. | Court: Rejected substantive due process claim—Ordinance and SEP are not "truly irrational"; no distinct, developed takings claim presented. |
Key Cases Cited
- Dunham v. Lake County Comm’n, 943 N.W.2d 330 (S.D. 2020) (certiorari review limited to jurisdiction and regular pursuit of authority)
- Lake Hendricks Imp. Ass’n v. Brookings Cnty. Planning & Zoning Comm’n, 882 N.W.2d 307 (S.D. 2016) (jurisdiction to grant conditional uses depends on valid adoption of ordinance)
- Schafer v. Deuel Cnty. Bd. of Com’rs, 725 N.W.2d 241 (S.D. 2006) (zoning and comprehensive plan purposes and legislative role)
- Kokesh v. Running, 652 N.W.2d 790 (S.D. 2002) (methods for creation of easements at law)
- Kucera v. Lizza, 69 Cal. Rptr. 2d 582 (Cal. Ct. App. 1997) (local regulation affecting light/view does not create easement or conflict with easement law)
- Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (U.S. 2005) (distinguishing substantive due process and takings analyses)