936 N.W.2d 565
S.D.2019Background
- Triple K Land sought a conditional use permit (CUP) to build and operate a 2,400‑pig nursery on agriculturally zoned Hanson County land adjacent to property owned by Loren Huber and Amy Nolan‑Huber (Hubers).
- The Hanson County Board of Adjustment held hearings, initially granted the CUP, vacated that approval for notice defects, re‑noticed, held additional hearings, and finally approved the CUP by resolution filed June 5, 2018.
- Hubers filed an "Affidavit and Application" on June 28, 2018 styled as an alternative writ of prohibition or, alternatively, a verified petition under SDCL 11‑2‑61 to challenge the Board's decision.
- Six days before the hearing Triple K moved to intervene and to dismiss; at the hearing the circuit court allowed Triple K to intervene orally and sua sponte dismissed the Application for lack of subject matter jurisdiction, concluding a writ of prohibition was not the proper remedy and that the pleading did not sufficiently invoke certiorari.
- On appeal the South Dakota Supreme Court affirmed dismissal of the writ of prohibition, reversed the dismissal of the alternative certiorari petition, held the petition met SDCL 11‑2‑61's procedural elements (verification, timeliness, and stated grounds), found the complaint adequately alleged aggrieved status for jurisdictional purposes, and affirmed the grant of intervention; the matter was remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper remedy / subject‑matter jurisdiction: writ of prohibition vs certiorari | Hubers pleaded a writ of prohibition and alternatively alleged illegality under SDCL 11‑2‑61 | County/Triple K: prohibition improper; petition inadequately seeks certiorari | Dismissal of prohibition affirmed; alternative certiorari claim adequately pleaded and circuit court has jurisdiction under SDCL 11‑2‑61 |
| Compliance with SDCL 11‑2‑61 procedural requirements (verification, 30‑day filing, grounds) | Hubers: petition was verified, filed within 30 days, and alleged specific grounds of illegality | County/Triple K: pleading form and wording insufficient to invoke certiorari | Court held Hubers satisfied the statute's verification, timeliness, and grounds requirements |
| Standing / "person aggrieved" under SDCL 11‑2‑61 | Hubers: adjacent owners and taxpayers alleging unique injury (manure/odor, etc.) | Triple K: Hubers lack status as "persons aggrieved"; insufficient facts | Court did not resolve merits; held pleadings sufficiently alleged aggrieved status to confer jurisdiction and left standing to be resolved on remand |
| Intervention by Triple K (timeliness / oral motion) | Hubers: oral intervention was improper because written motion served <10 days before hearing | Triple K: entitled to intervene as of right; no prejudice from oral motion | Court found no abuse of discretion; affirmed allowance of oral intervention |
Key Cases Cited
- Elliott v. Bd. of Cty. Comm’rs of Lake Cty., 703 N.W.2d 361 (S.D. 2005) (appeals from county board of adjustment must proceed by writ of certiorari under SDCL 11‑2‑61)
- Upell v. Dewey Cty. Comm’n, 880 N.W.2d 69 (S.D. 2016) (de novo review for jurisdictional and statutory interpretation issues)
- Cable v. Union Cty. Bd. of Cty. Comm’rs, 769 N.W.2d 817 (S.D. 2009) ("aggrieved" standard requires a unique, personal injury)
- Lake Hendricks Improvement Ass’n v. Brookings Cty. Planning & Zoning Comm’n, 882 N.W.2d 307 (S.D. 2016) (distinguishes standing from subject‑matter jurisdiction but requires standing to invoke jurisdiction)
- Gray v. Gienapp, 727 N.W.2d 808 (S.D. 2007) (definition and extraordinary nature of writ of prohibition)
- Armstrong v. Turner Cty. Bd. of Adjustment, 772 N.W.2d 643 (S.D. 2009) (bias allegations in certiorari challenge to a CUP)