JEFFREY K. POWERS and VICKY URBAN-REASONOVER, Petitioners and Appellants, v. TURNER COUNTY BOARD OF ADJUSTMENT, Respondent, and STEVE SCHMEICHEL and ETHAN SCHMEICHEL, Respondents and Appellees.
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IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
11/04/20
2020 S.D. 60
THE HONORABLE CHRIS GILES, THE HONORABLE DAVID KNOFF, Judges
APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT, TURNER COUNTY, SOUTH DAKOTA. MITCHELL A. PETERSON, REECE M. ALMOND of Davenport, Evans, Hurwitz & Smith, LLP, Sioux Falls, South Dakota, Attorneys for petitioners and appellants. BRIAN J. DONAHOE, DANIEL B. WEINSTEIN of Donahoe Law Firm, P.C., Sioux Falls, South Dakota, Attorneys for respondents and appellees. CONSIDERED ON BRIEFS MAY 26, 2020.
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[1.] After the Turner County Board of Adjustment approved an application for the construction and operation of a concentrated animal feeding operation, two landowners appealed the decision by petitioning the circuit court for a writ of certiorari under
Factual and Procedural Background
[2.] In March 2018, Steve and Ethan Schmeichel applied to the Turner County Zoning Office for a conditional use permit to operate a large concentrated animal feeding operation (CAFO). The CAFO would include a 5,400-head sow facility with 2,000 swine over 55 pounds. On April 10, 2018, the Turner County Commission, sitting as the Turner County Board of Adjustment (Board), held a hearing on the application. The Board chairman, Eric Meyer, participated in the hearing but abstained from voting because of a financial interest. Applicant Steve Schmeichel is a Turner County Commissioner and a member of the Board. He recused himself as a participating Board member and instead participated in the hearing as an applicant. Turner County resident Vicky Urban-Reasonover and other residents appeared at the hearing to object to the CAFO. At the conclusion of the hearing, the Board voted unanimously to approve the Schmeichels’ application.
[3.] On September 18, 2018, Jeffery Powers and Urban-Reasonover (the Petitioners) petitioned the circuit court for a writ of certiorari under
[4.] The Schmeichels, joined by Turner County, filed a cross-motion for summary
[5.] The circuit court held a hearing on the issue of standing and thereafter issued a memorandum decision. Applying Cable v. Union County Board of County Commissioners, 2009 S.D. 59, 769 N.W.2d 817, the court found that the Petitioners failed to present sufficient evidence to establish standing. The court determined that “[t]here is simply nothing in the record to support [Affiant Urban-Reasonover‘s] allegations that noxious odors and noise will invade her property ....” In the court‘s view, it was “left to decide whether 3/4 of a mile is significant without any evidence with which to” determine whether the Petitioners are persons aggrieved. However, the court did not grant summary judgment to the Schmeichels and Turner County because the Petitioners had made a timely request for discovery under
[6.] Instead of submitting additional evidence, the Petitioners filed a motion to reconsider and a motion to compel discovery. They asserted that the circuit court‘s previous ruling was no longer valid in light of Abata v. Pennington County Board of Commissioners, 2019 S.D. 39, 931 N.W.2d 714.3 The circuit court disagreed that Abata
[7.] On September 20, 2019, the Petitioners submitted an expert report and affidavit from appraiser Steven Shaykett related to the CAFO‘s effect on the value of Urban-Reasonover‘s property. In his report, Shaykett opined that if the CAFO is constructed as proposed, the value of Urban-Reasonover‘s property would be reduced by $48,000. The Petitioners also submitted an expert report and affidavit from Anton Jitnikovitch on an “Odour Impact Simulation.” In his report, Jitnikovitch opined that Urban-Reasonover‘s property would experience complaint-triggering odors from the proposed CAFO “72.4% of days.”
[8.] After the Petitioners submitted this evidence, the circuit court judge recused himself and another judge was assigned to the case. The Schmeichels, joined by Turner County, filed a supplemental brief on October 28, 2019, responding to the Petitioners’ evidence on standing. After a hearing on November 4, 2019, the reassigned judge granted the Schmeichels summary judgment, concluding that the Petitioners lacked standing because they failed to show that they have a unique injury compared to other Turner County residents. The court declined to rule on the Petitioners’ motion for summary judgment and dismissed their appeal.
[9.] The Petitioners now appeal to this Court, asserting that the circuit court erred in concluding they lacked standing to appeal under
Standard of Review
[10.] Our standard of review from a decision granting summary judgment is well settled:
We must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party. The nonmoving party, however, must present specific facts showing that a genuine, material issue for trial exists. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the trial court, affirmance of a summary judgment is proper.
Brandt v. Pennington Cnty., 2013 S.D. 22, ¶ 7, 827 N.W.2d 871, 874 (quoting Jacobson v. Leisinger, 2008 S.D. 19, ¶ 24, 746 N.W.2d 739, 745).
Analysis and Decision
[11.] The Petitioners argue that the circuit court erred in concluding as a matter of law that they did not present sufficient facts demonstrating a unique and personal injury compared to Turner County taxpayers in general.4 They further assert
[12.] The Schmeichels, joined by Turner County, contend the circuit court properly concluded that the Petitioners are not persons aggrieved under
You are hereby notified that the property on which you are constructing a structure is in or near agricultural land, agricultural operations or agricultural processing facilities or operations. You may be subject to inconvenience or discomfort . . . . Discomforts and inconveniences may include, but are not limited to: noise, odors, fumes, dust, smoke, burning, vibrations, insects, rodents, and/or the operation of machinery (including aircraft) during any twenty-four hour period. If you live near an agricultural area, you should be prepared to accept such inconveniences or discomforts as a normal and necessary aspect of living in an area with a strong rural character and an active agricultural sector. You are also notified that there is the potential for agricultural or agricultural processing operations to expand.
The Schmeichels argue that this covenant precludes the Petitioners from establishing standing because the Petitioners’ property is outside the setbacks required by the county ordinance for the CAFO, and therefore, “the amount of odor, dust, noise or other alleged harm from the operation of the CAFO [was] considered to be reasonable for those existing residences and other landowners in the area.” The Schmeichels further assert that nothing in the Petitioners’ application, evidence, or comments submitted at the hearing indicated that their proposed CAFO would require additional protections.5
[13.] “A litigant must have standing in order to bring a claim in court.” Lippold v. Meade Cnty. Bd. of Comm‘rs, 2018 S.D. 7, ¶ 18, 906 N.W.2d 917, 922. Further, “[a]though standing is distinct from subject-matter jurisdiction, a circuit court may not exercise its subject-matter jurisdiction unless the parties have standing.” Id. “Subject matter jurisdiction is conferred solely by constitutional or statutory provisions.” Cable, 2009 S.D. 59, ¶ 20, 769 N.W.2d at 825 (citation omitted). The statute governing the Petitioners’ application authorizes a particular class of plaintiffs to bring suit under
[14.] The parties do not dispute that the Petitioners must set forth sufficient evidence to show that they are persons aggrieved by the Board‘s decision in order to appeal under this statute. However, they disagree as to what type of evidence supports such a finding. The Schmeichels rely on Cable, 2009 S.D. 59, 769 N.W.2d 817, and contend that “[c]omplaints of harm due to proximity to the project are not sufficient.” According to the Schmeichels, Cable requires that the Petitioners establish a unique injury as compared to all residents living near the proposed CAFO upon construction and operation. The Petitioners, on the other hand, argue that Cable is not controlling because the Court in that case interpreted
[15.] In Cable, the Union County Board of Commissioners granted a rezoning permit to Hyperion, LLC for the construction of an oil refinery. 2009 S.D. 59, ¶ 2, 769 N.W.2d at 821. Cable filed an appeal under
[16.] Ultimately, the circuit court found Cable‘s evidence insufficient to show that his alleged personal injuries were different than those that might be suffered by the general public. Id. ¶ 14. The court noted that Cable offered no expert testimony related to how the proposed refinery would affect his asthma or how the refinery could contaminate the aquifer under his property. Finally, the court “concluded that Cable‘s claims as to noise, smell, light, and traffic from the proposed refinery were speculative, and that Cable failed to provide any specific evidence that the traffic on the road where he lived would be heavier than in other parts of the county.” Id.
[17.] On appeal, we examined what is meant by the language “any person aggrieved” in
[18.] From our review of Cable and this Court‘s cases going back to the early Dakota Territorial era, we conclude the language in Cable relating what is meant by any person aggrieved under
[19.] The latter portion of this statement from Cable has been quoted to suggest a stringent standard wherein concerns shared by others in close proximity to the proposed site are never unique. See Abata, 2019 S.D. 39, ¶ 10, 931 N.W.2d at 719. To the extent that Abata‘s characterization of Cable seems to support such a suggestion, we now take this opportunity to clarify our holding in Cable.10 The Court‘s conclusion that the petitioners in CableCable‘s specific claims and the evidence presented to the circuit court. This evidence consisted not only of testimony from the residents residing in close proximity to the proposed refinery, but also included an affidavit from a resident who lived some twenty-five miles from the proposed site attesting that he “would also suffer the ill effects of the refinery, but to a lesser degree.” Cable, 2009 S.D. 59, ¶ 34, 769 N.W.2d at 829. As such, this Court concluded that “Cable in effect introduced evidence . . . that all Union County taxpayers would suffer as a consequence of the proposed refinery but to varying degrees based on proximity, which served to negate Cable‘s claim that the injury would be unique and personal to him.” Id. (emphasis added).
[20.] Here, in contrast, the Petitioners did not assert in their petition that
[21.] The Schmeichels contend that the circuit court, in rejecting the Petitioners’ expert evidence as unreliable and speculative, properly exercised its role as a “gate keeper” under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). However, the Schmeichels did not file a formal Daubert motion to challenge either expert‘s opinions on summary judgment, which would have given the Petitioners the opportunity to respond and further develop the factual record upon which a Daubert ruling could be based. Moreover, the record reveals that the Petitioners’ expert evidence was rejected because it did not comport with the circuit judge‘s personal knowledge and understanding of CAFOs derived, in part, from the judge‘s past experience as a state‘s attorney and county commissioner. It is also apparent from the court‘s comments that the court was weighing the Petitioners’ proffered evidence against the court‘s personal knowledge of how CAFOs are operated.
[22.] It is well settled that a court is not to weigh the evidence at the summary judgment stage. Hamilton v. Sommers, 2014 S.D. 76, ¶ 42, 855 N.W.2d 855, 868. Rather, evidence must be viewed most favorably to the nonmoving party when determining “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
[23.] From our review of the evidence viewed in a light most favorable to the Petitioners, we conclude that the Petitioners have set forth sufficient specific facts to show “a personal and pecuniary loss not suffered by taxpayers in general, falling upon [a petitioner] in [an] individual capacity, and not merely in [the] capacity as a taxpayer and member of the body politic of the county[.]” See Cable, 2009 S.D. 59, ¶ 26, 769 N.W.2d at 827 (quoting Barnum, 53 S.D. 47, 220 N.W. at 137–38). First, unlike the plaintiff in Cable, the Petitioners did not rest upon mere allegations and legal argument. See, e.g., id. ¶¶ 34, 39. They substantiated their allegations with expert opinions rather than relying on mere speculation, conjecture, or fantasy. Second, although the Schmeichels argue that the Right to Farm Covenant establishes that the Petitioners’ alleged inconveniences and discomforts are not personal or unique, namely because they are similarly suffered by other residents of the county, the Petitioners offered evidence in support of their allegation that the proposed CAFO will injure them beyond the inconveniences and discomforts related in the Covenant.
[24.] For these reasons, the circuit court erred when it granted summary judgment dismissing the Petitioners’ appeal for an inadequate showing of standing. We therefore reverse and remand for further proceedings.
[25.] GILBERTSON, Chief Justice, and KERN, JENSEN, and SALTER, Justices, concur.