Coyote Flats, L.L.C. v. Sanborn County Commission
596 N.W.2d 347
S.D.
1999
Check Treatment

*1 SD 87 FLATS, L.L.C., COYOTE Plaintiff Appellee, COMMISSION,

SANBORN COUNTY County, Dakota, South Appellant.

Defendant and

No. 20665.

Supreme Court of Dakota. South

Argued April July

Decided *2 Flats),

(Coyote operate to a commercial hog appeals. The feedlot. Commission We reverse. AND

FACTS PROCEDURE the spring In the Sanborn County received Board of Commissioners1 application from Flats for a Coyote con- special hog to permit use construct approxi- unit that finement would contain mately 6,000 At time hogs. the same attempted to Commissioners enact new county existing ordinances amend The amend- zoning ordinance. requirements for animal ments dealt confinement units. ordinances, on the

[¶ 3.] Based new application denied the permit Commission Coyote Coyote appealed Flats. Flats court, which the circuit struck down the new as not enacted. properly ordinances permit then remanded issue un- consider application Commission to existing der ordinance that had the early been in effect since 1970’s. remand, a hearing before the [¶ 4.] On held April Commission was Coyote again special Flats was denied the permit. The found use Commission Danforth, Meierhenry Meier- Mark V. facility significant would proposed create Falls, henry Meierhenry, & Sioux odor, traffic increase and additional trucks appellee. plaintiff and roads the inevit- damage and cause Larson, D. Jeffrey Sanborn neighboring able in value of the land. loss Woonsocket, Attorney, State’s and James facility It concluded the would be detri- Abourezk, Special Deputy State’s Attor- health, G. general safety mental to the and Falls, ney, appel- for defendant and Sioux people residing welfare of area lant. near site would be appealed again

nuisance. GILBERTSON, Justice. the circuit court. appeals The circuit court found the Com- [¶ 5.] Commission Circuit, ca- decision to be

final order of the Fourth Judicial mission’s County. pricious. trial court The court remanded case Sanborn reversed It further or- remanded back to the Commission. the Commission’s decision plan- dered meet as a ordered the meet as a the Commission to Commission approve spe- ning planning approve commission and to commission cial use L.L.C. simplicity Planning County, composed entities the sake all three

1. For Commission, Adjustment persons. from Board same These entities switch one Board of body meeting calling a of that referred to as Com- to another of Commissioners will be particular body. mission or Commissioners. appeals raising Commission AND ANALYSIS DECISION issues, dispositive: several one of which is proceed [¶ 8.] Before we on the merits of this case we must review pro Whether the trial court erred in its cedural issue that has been raised Coy ruling the Commission’s denial aof ote procedural Flats. That issue is the “arbitrary was *3 proof burden of before the circuit court. capricious.”2 Coyote argues Flats on an appeal to the court,

circuit the Commission has the bur proof. den of STANDARD OF This is incorrect. It is well REVIEW on an appeal established from zoning the provides ap [¶ 7.] SDCL 7-8-30 an commission, party the appealing has the peal county from a decision of a commis burden proof of before the circuit court. sion shall be heard and determined the Estates, See Chokecherry Hills Inc. v. circuit court In de novo. Schrank v. Pen (S.D. County, 654, Deuel 294 N.W.2d 656 Comm’rs, nington County Bd. 1998 SD of 1980) (appellant must meet the burden in a ¶ 108, 15, 680, 682, 584 N.W.2d we conclud challenge to the application of a zoning ed “this standard means ‘the circuit court ordinance); City see also Madison v. of determine anew the ... question should Clarke, 312, (S.D.1980) 288 N.W.2d 314 independent county commissioner’s (person appealing from the board of ad decision.’”3 As such: justment has to meet burden of proof); City Spearfish, Fortier v. cf N.W.2d of When we review such actions of a board 228, (S.D.1988) (party 230-31 at county of appeal commissioners after an tacking zoning ordinance carries the bur court, to the circuit apply clearly den overcoming of pre ordinance’s erroneous standard to factual findings, sumption of validity); City Colton v. legal but accord no deference to the (S.D.1982) Corbly, 138, 323 N.W.2d conclusions of the circuit court. (“One assailing validity of a zoning ¶ Iverson, 77, 14, Gregoire v. 1996 SD 551 ordinance has' the burden overcoming 568, (citing N.W.2d Tri County Land presumption of validity and must show County, Ass’n v. Brule 535 N.W.2d that the ordinance is unreasonable and fill (S.D.1995)). 760, 763 arbitrary.”). assailing party That was 2. Sanborn authority also raises the issue of of a court over a circuit board of whether trial court erred when it ordered county determining commissioners. In there planning the Commission to meet as a com- right taxpayer existed to direct suit rath- mission and as a board of commis- appeal er than an from the decision of the approve Coyote sioners and Flats’ commissioners, we concluded: permit. claims the trial appeal clearly attempt These statutes effectively stripped court the Commissioners proper strike a balance between the neces- statutory legislature power by of their order- sity ing county government operate approve an them to in If the Com- acting legislative capaci- orderly right missioners were ty in a efficient and fashion and the denying Coyote permit, Flats this would pursue injustices of its citizens in the However, argument. be a denying valid through appeal pro- courts this state permit, the Commission was act- agree cess. We with the observation of the ing quasi-judicial capacity. they in a As were appeal in this court case that the stat- acting capacity, in this the trial court would protect public utes and individual citi- authority have the to remand and order the zens from the "unfettered whims” of a proceed Commission in a certain manner. However, county commission. "the overall may "The circuit court ... send the [cause] actions, [Weger'sj permit- effect of if it were back to the board of commissioners exist, place ted to would be to a Circuit proceed....” with an order how to SDCL 7- Judge being position Court a one U.S., 265, Spallone 8-31. See also v. 493 U.S. person county commission. That was nev- (1990). 110 S.Ct. 107 L.Ed.2d 644 er meant to be.” Weger Pennington County, (S.D.1995), we had cause to examine application comprehensive plan it had the their and therefore are at issue this case. proof. burden of County Zon- [¶ Under the Sanborn mer 9.] As to issue Regulations each land and Subdivision 11-2, its, ch South Dako under SDCL conformity regula- must be with entity ta created an called Legislature has in which it is specified for the district tions 11- commission. SDCL county planning if example, For the district located. has planning 2-2. The commission been residential, any operation must be in zoned a comprehensive to prepare authorized requirements of a conformity resi- County. 11-2-11. plan4 for SDCL Agricultural district. land ex- dential controls Zoning ordinances5 empt mandatory conformity from with dis- adjunct necessary are deemed included requirements, exception trict with the *4 comprehen with to in accordance commercial feedlots.6 adopted its plan. sive pro- in where plan the 1970’s. The area comprehensive an passed posed in with the to locate its feedlot zoned ordinances accordance 11-2-1(3) repeal. upon comprehensive party relying A such mat- 4. or SDCL defines * * * present plan as: ters must in some manner part as them record. "Comprehensive plan,” a document which McDonnel, 201-02, 78 S.D. at 99 N.W.2d at words, may illustrate describes State, 147, (citing v. Neb. 110 802 Steiner 78 charts, maps, plats, matter, descriptive and other 723, (1907)). McDonnel, 724 we N.W. In goals objectives policy, case, a of the reached decision on merits the board interrelate all functional considering the but without ordinance in the relating systems and to the natural activities appellant's brief. territory its development juris- of the under copy complete do not We have of the diction[.] county ordinance from which to make our judicial we take decision. Whether notice of again, applicable ordinance at is- Once municipal a procedural ordinance is issue. part sue was not made of the record. The 745, Kuper, See Albers v. 518 N.W.2d L, 746-48 erroneously judicial court notice circuit took (S.D. 1994) (Wuest, concurring specially) of the ordinance without attention 436-42, Anderson, (citing 79 S.D. at 112 Court's well-established rule: (Hanson, J., 615-18) dissenting). N.W.2d at authorization, statutory courts of Absent Therefore, objected if it is not to on the rec jurisdiction, general such as our circuit ord, upon just any appeal it can be waived courts, may judicial not take notice of mu- procedural Hauge, issue. State v. 1996 nicipal An ordinances. ordinance therefore 13, ¶ 48, 173, (citing SD N.W.2d 177 547 into be must be introduced evidence and 595, (S.D. Sprik, State v. 520 N.W.2d 601 part made the record. Wall, 259, 1994); State v. 481 N.W.2d 265 Christensen, 131, v. 409 N.W.2d 132 Nase (S.D. 1992)) (a specifically object failure (S.D.1987) (footnote and internal citation omitted). See also Anderson v. right ap of the waiver raise the issue on Adamson, 79 peal). Township, See also Welsh v. Centerville 429, (1962); 112 612 S.D. N.W.2d McDonnel 73, n.1, 622, 625, ¶ 9, SD 1999 595 N.W.2d 195, Lakings, v. 78 S.D. 99 N.W.2d 799 Therefore, reaching n.1. the merits of this (1959). portions case we will use the of the ordinance we The rationale for the rule that do not provided County’s brief and the record. judicial a municipal take notice of ordinance McDonnel, 195, S.D. was stated 78 99 3(1) County Zoning 6.Section of the Sanborn McDonnel, we would not N.W.2d Regulations and Subdivision reads: city print- Falls consider ordinance of Sioux structure, building, or land shall hereaf- No appellant’s ed in the brief. The ordinance occupied, building ter be used or and no or been or in evidence had not offered received part thereof be structure erected, constructed, reconstructed, moved, shall hereafter judicial at we to take level so refused Quoting neigh- notice of it. case from our conformity structurally except altered boring state of Nebraska said: regulations specified all of herein This court cannot undertake to notice the located; pro- municipalities in which all the for vided, however, district it is ordinances of within jurisdiction, that the use land for its nor to search records amendment, except passage, farming agricultural purposes, evidence of their

351 district under agricultural capricious Section 5 and an abuse of discretion. We Zoning Ordinance.7 Under this same sub- find the trial court erred for the reasons even if a commercial section detailed below. agricultural

feedlot would be located in an Our case law provides district, the applicant zoned must obtain a arbitrary and capricious action is: county.8 from the personal, selfish, based on or fraudulent motives, information, or on false and is Arbitrary Capricious [¶ 12.] a. characterized a lack of relevant and (cid:127) [¶ 13.] The trial court concluded the competent support evidence to the ac- denial of spe Commission’s Flats’ tion taken. arbitrary cial capri be Pullen, cious. See 125 Ind. Tri Landfill, 535 N.W.2d 764 Stafford (1954) (alle 191, 193 App. N.E.2d Anderson, (citing Hendriks v. gations capricious acts are n (S.D.1994); Iverse v. Wall Bd. of law); Kellogg conclusions of v. Hoven Educ., (S.D.1994); Cf 522 N.W.2d 188 Riter v. 53-2, Dist. No. School N.W.2d Dist., 55-4, Woonsocket School # (S.D.1991) (trial court did not err in 149-51 (S.D.1993)). N.W.2d conclusion of law the school board [¶ 15.]. The Commission based its arbitrarily capriciously). acted This *5 denial of Flats’ conditional use per analysis decision was based on an of the mit following on the findings: provided comprehensive sections of the 1. The'proposed facility El- was within 5.14(11), plan. Under Section a Township, heavily liott a populated exception must be obtained to build area. operate a commercial feedlot. From the brief, provided ordinance in the a “com 2. There will an in large be increase mercial feedlot” is defined as: truck traffic at the site roads

A confinement or fur-bearing of food will severely damaged be from such animals, for commercial purposes, traffic. lots,

building pens, pools, ponds which Adjacent properties will be devalued normally raising are not used for crops because of the location of this facili- grazing animals. ty. The trial court found the definition to be facility This air pollution create extremely vague. broad and When at- through noxious odors. to tempting scope ascertain the 5. The potential pollution. of water definition, the trial court construed it to Despite car- possibly every farming include fact operation proof, ried the burden of there County. Considering is near the claim farming that no other total absence of evidence in the operation in record San- that compliance born was in would allow the circuit court to label with the findings ordinance and the broad definition arbitrary of com- Commission’s as feedlot, capricious. mercial the trial court concluded There nois evidence the Com- Commission’s denial was action personal, mission’s is “based on self- lots, specifically exempt commercial feed is [c]ommercial feedlots as defined this Or- provisions dinance, however, from the of this ordinance. provided, that no such special exception be issued shall unless and ordinance, zoning 7. Under Section 5.11 of proprietor until the of such a feedlot has agricultural the intent of an district is: "to complied provisions with the [SDCL ch provide general agricultural use and for provided 34A-2] further that no such protection agricultural resources from special exception shall be issued said if feed- development.” detrimental effects of urban opin- lot would constitute nuisance in the provides Zoning 8. Section 5.14 ion Commission. added). can be issued (Emphasis for: motives, in, them hogs in- haul the feed in and haul ish, or on false fraudulent ” County Landfill, you’ve got and then the ma- again, .... Tri out formation of, is no “lack of rele- nure that on the get at 764. There to rid would be N.W.2d brought record forth township vant evidence” roads roads. Therefore, by the Commissioners. expressed All of con- the Commissioners be ar- action cannot labeled Commission’s that repairs cern would have to be over why capricious. To establish bitrary and made the roads.9 There was no rebut- to legal find the trial court’s conclusion contrary offered tal evidence to erroneous, “arbitrary capricious” to be Coyote Flats. supporting discuss the evidence we will finding each below. surrounding [¶ Hi. Devaluation 21.] real estate Population i. ample There evidence in the is well established [¶22.] supports may testify the Commission’s de- that a record South Dakota landowner facility subject that this would constitute cision of his or land as to the value her proximity neigh- due nuisance only requirements as an ex the same First, there is boring population. testimo- City opinion on valuation. pert giving (Brewer), ny by Charlotte Brewer a resi- 16, Johnson, SD Sioux Falls of ¶ lives within a mile dent of area who (“The landowner Robert from the feedlot. Sonne presumed ‘special knowledge to have (Sonne) lives 0.6 also testified he of a mile producing capaci its income property, facility. the proposed from Commissioner ty, and pertinent traits sufficient Moe testified he considered establish- ”). Brewer, opinion render an value.’ particular in this area facility ment of herself, hogs who had raised testified *6 due to the location of to be nuisance signifi property the value of her would be neighbors. Coyote Flats’ nearest This evi- con cantly due to the nuisance diminished by Coyote unchallenged dence went Flats. Sonne, by the who ditions created feedlot. mile from facili lives 0.6 of a the ii. [¶ 19.] Roads ty, land be deva testified his would also A factor the fundamental for [¶ 20.] lued. Moe that he Commissioner testified the effect the denial was Commission’s voted the be against Thompson testified roads. Commissioner to land values.10 going cause it was affect only County receive that the $600.00 Coyote knowl challenge Flats did not his from this ven- additional tax revenue of edge of local land values and in fact to enough ture. It was not cover the subject. this fered no counter evidence on the to the damage roads would sustain due facility. Moe new Commissioner testified Noxious iv. odors [¶ 23.] damage to roads was one of the the the denying per- he considered in the factors finding more There is [¶24.] mit. He stated: in the record than the fact this supported facility out you give a.very powerful time confined feed- will [the build Swenson, Coy- Darren operation], haul them and haul the offensive odor. highway system. SDCL 31—12— County Commissioners are statu- Since 9. torily charged responsibility with the for over- (SDCL system sight county highway 31-12-19), they clearly knowledgeable to as a Commissioners also sit (SDCL testify present condition Equalization as its County Board of 10—11— 25) upon annually effects of heavier traffic future main- market which reviews the fair They charged setting property in for taxa- tenance. are also with value of real 10-11-26). (SDCL budget upkeep improvement purposes tion part ote even admitted before the Com- of the Commission. All of the facility decision, value, missioners the would smell. backing factors land pollution, population, roads and noxious Brewer, hogs who had raised with [¶ 25.] odors are relevant and reasonable. There years her late husband the 45 she had evidentiary is no basis to conclude the area, particular lived in this testified with uncontradicted evidence submitted hogs, that amount of the smell would be Commissioners was false or inaccurate. “if overwhelming; She stated the wind warm, muggy day was the south and [¶ 29.] Flats has two principal today, you like wouldn’t want to eat....” arguments in support of the trial court’s Thompson Commissioner Denton First, Coyote decision. points to the neighbor’s testified the smell from a small Knochenmus, of Breckweg case 81 S.D. facility hog required Thompson to close 244, (1965) 133 N.W.2d 860 lending the windows of his house when the wind support There, to its Breckweg case. Sonne, from the neighbor’s was direction. others sought a writ of mandamus to com hogs, who also raised testified as to the pel the supervisors Mapleton Township extent of the smell. He stated even building issue them a permit to build a farms, neighboring hog' “you small can’t gas station. Under Supp SDC 1960 your long get by hold enough breath 58.0201(9),12townships granted had been [them].” Commissioner Senska testified power by legislature prescribe facility the smell of the was one of the constructing the manner of buildings and deny reasons he voted to require building permits any before con permit. Commissioner Moe testified his struction. Id. at 133 N.W.2d at 864. deny decision to was in part township provided had a building per facility based on the smell the would cre- codes, mit process yet there regu were no ate. lations, zoning ordinances or restrictions. Breckweg applied had for build- v. Pollution [¶ 26.] ing permit gas for a station. The permit At the trial before the circuit had been denied because the Board of court, Commissioner testified Senska Supervisors thought it was not a suitable potential pollution was a factor he con- area for the gas construction of a station. denying sidered when the permit. Sonne At the appeal before the expressed also pollution concern about *7 court, supervisors gas the testified the sta- ending up on his land.11 There was testi- health, tion would be detrimental to the mony by Coyote Flats that if the area safety -general welfare of the area were to 25-year receive two rains within a people. Breckweg alleged the Board acted time, period lagoon short of its waste arbitrarily capriciously and claimed overflow, draining would neighboring onto the ordinance was unconstitutional due to waterways. lands and into n its lack guidelines-. of standards and conclusion, [¶ 28.] the Commission found the facility public would create a Noting township pro- the had not private nuisance and would be detrimental any prohibitory building regulations vidéd health, safety general ordinances, to the zoning welfare of or affirmed the trial we the area’s Certainly, Township residents. the infor- court’s determination that mation above cannot be considered a lack in capricious acted an man- of evidence. The record' no hint by denying Breckweg building per- shows of ner a personal, selfish or fraudulent anticipated motives on mit. Id. We also noted an speculation. 11. This is not Sonne's Sonne 12. This statute now SDCL 8-2-9. already experienced pollu- testified he has tion effects of manure overflow from a neighbor’s hog operation small onto his fields. 354 protective that shall be re- unless it measures not be forbidden

nuisance could ... quired. was shown: ¶ Welsh, 15, at N.W.2d at 1999 SD 73 (1) construction or dealing township 627. are with a We not is a property of use to be made case, county zoning but ordinance (2) se;13 that while it per nuisance clearly authority. legislature The sanc- se, per to a nuisance not amount may power. police tioned the counties with this case, circumstances under the county shape in the of powers, Police zon- necessarily result from nuisance must authority preven- clearly extend to the contemplated act.14 tion and abatement nuisances. See omitted) (footnotes (citation add- Id. at 865 7-8-33; v. see also SDCL Wartensleben ed). 613, (Wyo.1966). The Willey, P.2d Breckweg surrounding Breckweg case is dis law case The entirely case hand two now us deal two dif- tinguishable from the before First, Breckweg Breckweg concerns statutes. concerns the ferent reasons. recently authority by covered now township zoning As we said powers township. of a Welsh, statutorily ch 8-2. We are concerned with township powers SDCL authority by county zoning county zoning author covered SDCL in relation to limited ¶ 15, N.W.2d at ch 11-2. ity. SD 73 at for a legislature intended The Breckweg Even if were le plan, not the town zoning comprehensive support it would be more gally applicable, for the ship, provide protection County’s position Coyote ive than to social, and, guidance “physical, economic Flats. There is sufficient evidence county.” development of environmental operation record show 11-2-36, legislature SDCL Under exception would constitute commis has the board granted enjoin you anticipated rule cannot power sioners the to: 6,000 comprised A nuisance. feedlot ordinances, at this location would be considered zoning resolutions swine

[AJdopt County has limiting pro designating nuisance regulations fact. record, location, bulk, sufficient evidence in the height, number sto- vided of, ries, largely completely, if not unrebutted specific and the uses size that a buildings and struc- to show nuisance dwellings, which ...; safety necessarily result from this contem- [provide] sanitary, and would tures rule seem to be that lawful earliest discussion of nui- better South Dakota’s per per se found Colton South sance can be a nuisance business erection never Co., 313, 126 se, Cent. Land 25 S.D. Dakota may but become nuisance reason of (1910). In that case circumstances, N.W. explained: 508-09 being such as lo- extraneous being inappropriate place, or cated in an misleading. per phrase se" is "nuisance improper may in an manner. conducted *8 employed. inappropriately has been It often Strictly speaking, said, however, that some lawful busi- be act a no or omission is prima facie nui- nesses erections surrounding regardless of condi- nuisance sances in certain localities.” No can create a nuisance in the tions. one omitted). (internal quotations by of one affected the for- absence some slaughterhouse or mer’s act omission. A terms, by legal 2 is known Factor better 14. annoy no situated in an that one if per a nuisance in fact or nuisance accidens. might gulch an intolerable uninhabited be per A in or a accidens nuisance fact nuisance when in resi- menace health located "Acts, occupations as: is defined struc- city of a town. The cir- dence sections per may se but tures which are not nuisances may be such as to render the cumstances by become reason of circum- nuisances annoying exquisite music both most surroundings[.]" stances of location place some injurious. "Since there must be 1990). (6th Dictionary Ed. Law Black’s every or erection where lawful business on, may lawfully be located or carried (“[A facility. at plated Breckweg, 81 may business] S.D. become a nuisance by at circumstances, 865. reason of extraneous such being as in located an inappropriate place, Operating a feedlot 35.] swine is [¶ or being conducted in an improper man- entirely legitimate. ability in itself The ner.”). Considering present- the evidence carry your on the of choice on business ed, especially the of size the feedlot and its your prop real estate invokes substantial location, the trial court was clearly errone- erty rights thoughtless that should not be ous in its factual in determinations and However, ly disregarded. everyone must error in concluding the Commission acted own rights infringe their not to arbitrarily capriciously. Colton, upon rights others. S.D. 313-14, at 126 N.W. at 509. The feedlot in Finally, Coyote [¶ argues 38.] Flats it is question would large create amounts of the only animal in compliance feedlot with manure and offal. It would cause noxious the zoning ordinance only because it is the annoying by smells. As is conceded feedlot in the County have met two 6,000 the offensive smell requirements for a permit. Under the apparent for argument. swine is too County ordinance, Sanborn zoning a com- mercial feedlot meet require- must two general proposition county The a permit. First, ments a the commer- may not abate a nuisance in advance is cial comply feedlot must with the State further overcome SDCL 7-8-33. Department of Environment and Natural provides: statute (DENR) Requirements. Resources See county board commissioners of 5.14(H).15 County Ordinance, Sanborn ordinance, every county may, by allow Second, all “commercial must ap- feedlots” the declaration abatement of a ply Commission, for and receive from the public nuisance within the out- corporate any side the limits of munici- pality. For purposes this section [¶ 39.] As issue State DENR only, feeding, breeding raising of permits, will testimony assume from in or the operations livestock of a livestock the that Coyote record the requi- has barn, presumed, sales is not fact permits.16 However, site DENR there is alone, to be a nuisance. any evidence the record feedlot other It is not the feedlot itself violation of the DENR the nuisance. requirements. presented is the feedlot combined The evidence upon by factors relied shows other feedlots ranging Commission as basis for its deci- in size from to approxi- 500 to sion 1,000 that makes feedlot a mately this nuisance in animal units. feeding These fact in specific operations this location. The circum- consist of swine cattle. The surroundings key stances and are the to DENR not does consider feedlots this facility being declared a feeding nuisance. See size to be animal op- concentrated Colton, 313-14, 25 S.D. at require N.W. 509 erations as to permits.17 mit, Supra 8. note the DENR considers number of factors operation which include the size of the testimony permits 16. There is that the State the location in relation waters of state. However, granted. copy have been requisite ARSD 74:03:18:23. The number of provided was not in the record. animals that mandates are as fol- lows: regulations, Under DENR a "concen- *9 operation" feeding trated animal would be feeding operation An animal ais concen- required to have a South Dakota Surface Wa- feeding operation pur- trated animal (SWD Discharge permit). ter Permit ARSD poses chapter this if of either of the follow- 74:03:17:03(1). feeding opera- For an animal ing criteria are met: tion to be considered a animal "concentrated feeding operation” require per- as to a SWD

356 case, of this taken. Based on facts argues it should not Coyote Flats by clearly is decision elected officials that permit, to obtain be forced Therefore, capricious. is not or producer livestock no other because that erred in its conclusion court received a applied or has ever arbitrarily ca- However, no Commissioner acted is evidence there priciously. opera- would show these in the record that proposed to the are similar tions upholding the decision 42.] In testimony particular, In Flats feedlot. Commission, a novel con- do not create we has the num- quite feedlot no other shows adopted by this for the cept now Court of animals density or the bers In one of our earlier cases first time. proposing.18 Flats is stated, the issue of nuisance addressing annoy that would no slaughterhouse Flats has summary, Coyote “[a] gulch in an if uninhabited one situated burden overcome simply not carried its menace to health might be an intolerable acted the Commission presumption of a located in the residence sections when There is evidence within its discretion. Colton, 25 S.D. at 126 city or town.” the trial court’s support in the record to wag- The Commission is not N.W. acted arbitrari- the Commission conclusion feeding of facilities hog the idea mere war on the result of or its decision was ly such as within its borders selfish or personal, on caprice, based was based Coyote Flats. Its decision information or on false fraudulent motives proposal location of geographical lack relevant and characterized or concept This and not the itself.19 Court support the action competent evidence (i) 1,500 ducks; (1) spec- or the numbers of animals More than units; categories any following (j) are ified in 300 animal (k) discharge: confined: Conditions cattle; 1,000 (a) slaughter or feeder (i) discharged into are surface Pollutants cattle, (b) dairy whether 700 mature through state a man-made waters cows; dry milked or ditch, system, flushing other similar 2,500 (c) weighing each over kil- swine device; or man-made (ii) (approximately pounds); ograms, discharged directly are Pollutants horses; (d) 500 of the state which into surface waters 10,000 lambs; (e) sheep or over, pass originate across outside of 55,000 (1) turkeys; through facility or otherwise come broilers, 100,000 laying if the (g) hens or animals con- direct contact into watering; facility has continuous overflow operation. fined in the 30,000 broilers, (h) laying if the hens or added). (Emphasis 74:03:18:27. ARSD handling liquid sys- facility has a manure enough simply not information There is tem; any to make the determination this record 5,000 ducks; (i) operator is in viola- other in Sanborn units; 1,000 (j) animal permit requirements and of DENR thus tion (2) following number and More than the animals, County Zoning Ordinance. the Sanborn types set out in subsections (a)to inclusive, (j), are confined and either nothing any in the record show 18. There discharge under conditions of set out 1,000 (h) animals or present: feedlot has more than other subsection cattle; (a) slaughter any or feeder feedlot would be considered cattle, (b) dairy whether 200 mature under the ordinance. "commercial feedlot” cows; dry milked or swine, (c) weighing over 25 kil- each testified: 19. Commissioner Senska ograms (approximately pounds); places in I there’s assume horses; (d) 150 probably a six you can build thousand 3,000 lambs; (e) sheep or you 16,500 But when (0 turkeys; head swine confinement. broilers, 30,000 affecting neighborhood, that's laying if the (g) hens or start watering; facility overflow has continuous have to make the deci- when commissioners broilers, 9,000 (h) laying if the hens or to. sions we have handling facility liquid sys- manure has tem; *10 directing addition, manner in operations.” not warranted there was no require which the Commission should exercise intention to other existing opera- Breckweg, legal discretion. 81 S.D. at to obtain a permit, tions “there unless was (citation omitted). at a problem” 133 N.W.2d one them. arbitrary Action is if capricious it is reverse the trial court. [¶ 43.] We selfish, personal, based on or fraudulent motives, information, false and is MILLER, Justice, and Chief aby characterized lack of relevant and KONENKAMP, Justice, concur. competent evidence to support the ac- tion taken. AMUNDSON, [¶ 45.] SABERS Justices, dissent. Ass’n, County Tri Inc. v. Brule Landfill County, (S.D.1995) 535 N.W.2d SABERS, Justice (dissenting). Anderson, (citing Hendriks v. 522 N.W.2d (S.D.1994); Iversen v. Bd. [¶ I dissent. Wall 46.] Educ., (S.D.1994); 522 N.W.2d 188 Riter v. County the Sanborn Zon- [¶ 47.] Under Dist., 55-4, # Woonsocket Sch. ing Regulations, special Subdivision (S.D.1993)). Sanborn is required use for commercial Zoning Regulations and Subdivision pro However, County’s feedlots. definition vides: quite feedlot commercial broad regulations set this ordinance vague. somewhat defines commercial each within district shall minimum be feedlot as: regulations apply and shall uniformly to fur-bearing [A] confinement of food or land, each class or kind structure animals, for purposes, commercial particularly, except as hereinafter lots, pens, building pools, ponds which provided!)] normally crops are not for raising used grazing added). animals. Here, (Emphasis the ordinance uniformly applied. has not been The trial defining [¶ 48.] Unlike other ordinances court concluded that the Commission’s de- feedlots, commercial does this ordinance special nial of the use was many not state in- how animals must be capricious because of defini- the broad an operation volved before considered tion of commercial feedlot and the fact that Therefore, commercial feedlot. the defini- operation required no other has been reasonably apply tion can be construed to permit. agree obtain use I every operation almost involv- farming we should affirm the trial court. raising animals commercial purposes County. located Therefore, I dissent.

However, testimony the trial court heard from several Commissioners AMUNDSON, Justice, joins only was operation re- dissent. quired to a special permit.20 obtain [¶ 49.] The court found that “the

testimony hearing was clear

showing farming operation

within possessed required only This included not farms,

family larger several owned but place

20. This ordinance has been in since the 1970's.