Summary of a Recent
Judicial
Development in
Agriculture and Urbanization
Conditional Use Permit for
Hog Operation Denied
Brian J. OakeyNational AgLaw Center Graduate Assistant
In an action brought by a farmer seeking judicial review of a county board of commissioners' decision to deny him a conditional use permit that would have allowed him to construct two large hog farming operations, the South Dakota Supreme Court has ruled that there was sufficient evidence to support the denial of the farmer's conditional use permit application. In re Conditional Use Permit Denied to Meier, 645 N.W.2d 579, 583 (S.D. 2002) (hereinafter Meier II).
In South Dakota, the legislature created an entity known as a county planning commission for each of its various counties. See In re Conditional Use Permit Denied to Meier, 613 N.W.2d 523, 524 (S.D. 2000) (hereinafter Meier I). The county planning commission is required to prepare a comprehensive plan for its county. See id. at 525 (citing S.D. Codified Laws § 11-2-11 (Michie 2000)). Pursuant to § 11-2-11 the county planning commission in Aurora County adopted a zoning ordinance on October 1, 1996, relating to "'animal feeding (hog confinement) operations.'" Meier II, 645 N.W.2d at 580. This ordinance established "the process, procedures and standards to be followed by an applicant seeking approval of a [conditional use permit] for a hog confinement operation." Id.
Section 515 of the ordinance set forth "specific standards that the applicant must satisfy 'either before the issuance of a permit or after, but it does not preclude other considerations.'" Meier II, 645 N.W.2d at 580 (citing Meier I, 613 N.W.2d at 528) (emphasis supplied). Examples of valid standards to be considered by the County Board when deciding whether it should grant or deny a conditional use permit application include the following:
1) A nutrient management plan "which will assure offensive odors and runoff will be kept to a minimum."
2) Whether the use (hog confinement operation) "if controlled as to number, area, location or relation to the neighborhood, would promote the public health, safety, welfare, morals, order, convenience, appearance, prosperity or general welfare." Aurora County Zoning Ordinance Definitions.
3) Whether the granting of a conditional use permit will adversely affect the public interest.
4) General compatibility with adjacent properties in the (agricultural) district.
5) Protection of agricultural lands from incompatible land uses in order to preserve land best suited to agricultural uses and land in which the natural environment should be continued and to limit residential, commercial and industrial development to those areas where they are best suited for reasons of practicality and service delivery.
6) The location of neighbors to the proposed facility, the effect of the operation on roads in comparison to what tax revenue the operation would generate, the potential devaluation of surrounding real estate, the present of noxious odors and potential for water pollution.
Id. at 581 (citations omitted).
Mark Meier was a South Dakota farmer who applied to the Aurora County Board of Commissioners ("County Board") for a conditional use permit that would have allowed him to construct two hog confinement facilities. See Meier II, 613 N.W.2d at 524. The proposed facilities were expected to house approximately 6,600 hogs. See id. The County Board denied Meier's conditional use permit application citing, among other reasons, the possible negative impact on local roads, the potential risk of pollution and offensive odor, and the lack of monitoring and enforcement resources. See id. The County Board also determined that to allow the operation "would not promote the public health, safety, welfare, order, convenience or community prosperity of the County." Id. Meier appealed the County Board's decision to the Aurora County Circuit Court. Id. at 580. The court affirmed the County Board's decision, and Meier appealed the matter to the South Dakota Supreme Court. See id.
The South Dakota Supreme Court explained that "[t]he applicable standard of review [was] whether the trial court's findings of fact were clearly erroneous and that it was required to examine "'whether on the entire evidence [it was] left with a definite and firm conviction that a mistake has been committed.'" Id. at 581 (citations omitted). It also explained that "'[w]e however 'accord no deference to the legal conclusion of the circuit court' when the appeal involves a circuit court's review of a county board's decision.'" Id. (citation omitted). Finally, the court explained that
[T]he circuit court conducts a review of the decision de novo; however, the review is limited to "determine anew all matters of fact without ascribing any presumption of correctness to the Board's finding on the evidence . . . . Once the [t]rial [c]ourt finds the facts, it is to determine if the actions of the [b]oard were based on personal, selfish, or fraudulent motives, or on false information, [or], . . . characterized by a lack of relevant and competent evidence to support the action taken."
Id. at 581-82 (citations omitted).
Meier argued that he (1) "need only prove that he has satisfied the standards of § 515(d) to prevail"; (2) that he "proved a primae facie case which satisfies § 515(d)"; (3) that he was "thus entitled to a presumption that . . . [he was] entitled to a hog confinement permit because it is in the public good"; and (4) that the County Board "offered no evidence to rebut the public good presumption, thus . . . [he was] entitled to a permit." Id. at 582. The court rejected Meier's argument, stating that it was based on a faulty interpretation of Meier I. See id.
In Meier I, the court "reversed the trial court because in the original circuit appeal the court limited its review to the § 515(d) factors." Id. In the present case, the court noted that "[t]he trial court, however, was not bound exclusively to the §515(d) performance standards." Id. It also noted that "'[i]t is well established on an appeal from the zoning commission, the party appealing has the burden of proof before the circuit court.' Meier I did not change this well established rule." Id. (citation omitted). It added that the Meier I court did not determine that Meier was entitled to any particular evidentiary presumption, but rather that "Meier had presented sufficient evidence to avoid a directed verdict." Id.
The court stated that "[t]he evidence concerning which individuals or entities are or will be responsible for proper disposal of the 2.8 million gallons of liquid hog manure generated annually by the nearly 16,000 head housed in the confinement building was unclear and contradictory." Id. It noted that based on Meier's testimony each of his facilities will have at any given time up to 3,841 gallons of hog manure to be disposed of. See id. at 583. It stated that "[t]he trial court's finding . . . that the structures will be 'the source of intense offensive odors coming from the barn and other operational facilities from the site' is supported by the evidence." Id. The court concluded that although Meier presented evidence that his proposed facility was compatible with the conditional use permit for which he applied, he nevertheless "failed to present any evidence that [the County Board's] original decision to deny the [conditional use permit] was based on a lack of relevant evidence." Id.
The case was decided on May 1, 2002; this summary was posted April, 2003