983 N.W.2d 594
S.D.2022Background
- Intervenors (Schmeichels/Norway Pork) applied for a conditional use permit (CUP) for a large CAFO; the Board approved a 2018 CUP and later approved an identical 2020 CUP after ownership/filing changes.
- Petitioners (Powers and Urban‑Reasonover), neighboring landowners, submitted an appraiser report and odor modeling evidence and challenged the 2020 CUP by writ of certiorari; Intervenors intervened.
- The circuit court found Petitioners to be aggrieved (i.e., have standing) but denied relief on the merits; it also denied the Board’s/Intervenors’ motions for attorney fees.
- Key technical evidence: AERMOD odor modeling and expert testimony claimed frequent odor impacts to Petitioners’ properties; appraiser testimony asserted diminished property value.
- The County’s Right to Farm covenant and dispute over how to categorize the mixed sow/finisher operation for setback calculations were contested but the court held the covenant did not defeat standing and the Board’s staff calculations were permissible.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing (aggrieved‑person) | Proximity, appraiser and odor expert evidence show concrete, particularized injury and uniqueness | SDCL 11‑2‑1.1 raised standing burden; Petitioners’ valuation and harm speculative; Right‑to‑Farm covenant bars claim | Petitioners had standing; 11‑2‑1.1 memorializes prior aggrieved‑person test and evidence supported concrete, causal, redressable, unique injury |
| Procedural due process / bias | Board likely biased by prior 2018 approval, mentioned financial incentives, and Schmeichel’s presence created unacceptable risk of bias | No extrajudicial source of bias; decisionmakers heard evidence at hearing; Schmeichel recused and did not vote; incentives mention not disqualifying | No due process violation; Caperton/Liteky standard for extreme risk of bias not met |
| Ordinance compliance / grant of 2020 CUP | Board misapplied zoning table, failed to do required case‑by‑case categorization and abdicated decision to zoning admin for setback calculations | Board had jurisdiction, could rely on staff expertise, considered multiple factors and evidence | Certiorari limited to jurisdiction/regularity; Petitioners failed to show arbitrary or illegal action—Board’s grant stands |
| Attorney fees | Fees not warranted; petition was nonfrivolous | Move for fees under SDCL 11‑2‑65 and appellate fees under SDCL 15‑26A‑87.3 | Trial court’s denial of fees was discretionary and not an abuse; appellate fee request denied |
Key Cases Cited
- Powers v. Turner County Bd. of Adjustment, 951 N.W.2d 284 (S.D. 2020) (adopting aggrieved‑person standing test for SDCL 11‑2‑61)
- Benson v. State, 710 N.W.2d 131 (S.D. 2006) (applying Lujan‑style standing elements for public‑entity suits)
- Cable v. Union County Bd. of County Comm’rs, 769 N.W.2d 817 (S.D. 2009) (requiring injury, causation, redressability, uniqueness)
- Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009) (due process requires recusal only where there's a serious risk of actual bias)
- Liteky v. United States, 510 U.S. 540 (1994) (extrajudicial‑source doctrine; opinions formed in prior proceedings generally not disqualifying)
- Holborn v. Deuel Cnty. Bd. of Adjustment, 955 N.W.2d 363 (S.D. 2021) (clarifying due process/bias standards for boards)
- Miles v. Spink Cnty. Bd. of Adjustment, 972 N.W.2d 136 (S.D. 2022) (applies Caperton standard and discusses deposing quasi‑judicial board members)
- Ehlebracht v. Deuel Cnty. Plan. Comm’n, 972 N.W.2d 464 (S.D. 2022) (certiorari review limited to jurisdiction and regularity of board action)
- Hines v. Bd. of Adjustment of City of Miller, 675 N.W.2d 231 (S.D. 2004) (board improperly abdicated decision‑making when relying solely on neighbors’ opinions)