Summary of a Recent
Judicial Development in
Animal Feeding Operations

County Board of Adjustment's Decision to Issue
CAFO Permits Is Non-Referable

Eric Foy
National AgLaw Center Research Associate

Summary of Decision

In Bechen v. Moody County Board of Commissioners, 703 N.W.2d 662 (S.D. 2005), the Supreme Court of South Dakota affirmed the circuit court's denial of Bechen's petition for writ of mandamus. Bechen sought the writ to require the county to schedule a public vote on the board of adjustment's decision to grant conditional use permits for construction of two proposed concentrated animal feeding operations (CAFOs). The supreme court overruled Kirschenman v. Hutchinson Board, 656 N.W.2d 330 (S.D. 2003), holding that the county commission and the board of adjustment do not become a single entity when a county commission decides not to appoint a separate board of adjustment but rather elects to sit as the board of adjustment. Additionally, the court held that decisions of a county board of adjustment could not be referred to a public vote.

Background

Pursuant to the Moody County zoning ordinance, two dairy operations applied for conditional use permits to construct CAFOs within Moody County. Id. at 663-64. All required publications and notices were made and a public hearing was held regarding the permits. Id. at 664. Following the board of commission's (board) decision to issue the permits, referendum petitions were submitted to schedule a public vote on the board's decision to grant the conditional use permits. Id. The board met on two different occasions, but denied the referendum petition both times. Id. The board based its decision to deny the referendum because it felt that the decision to grant the conditional use permits was administrative and not subject to a vote of the people. Id.

Arguments

Bechen argued that the trial court erred on two matters: (1) its classification of the board's decision to issue the CAFO permits as administrative and, therefore, non-referable; and (2) its failure to rule on whether the board's decision to grant a conditional use permit could be referred to a vote of the people. Id.

The board argued that its decision to grant the conditional use permits was administrative and, therefore, was not subject to a referendum vote of the county's citizens. Id.

Analysis and Holdings

According to the court, the grant or denial of a writ of mandamus is discretionary and reviewed according to an abuse of discretion standard. Id. at 664. For the writ of mandamus to be granted, the abuse of discretion standard required Bechen to show that he had a clear right to a referendum vote, and the board must have had a legal obligation to perform the duty. Id. The court overruled Kirschenman, which held that when a board of commissioners appoints itself to sit as the board of adjustment, the two bodies merge into a single entity. Id. at 665. In overruling Kirschenman, the court cut off Bechen's ability to successfully argue that it was essentially the board of commissioners' decision to issue the CAFO permits and not a decision of the board of adjustment.

Reviewing the South Dakota statute at issue, which did not create a broad right to refer actions of municipalities according to the board, and comparing it to the South Dakota Constitution, which created the right to refer actions of municipalities, the court held that the statute at issue limited the right to refer actions of county government to ordinances and resolutions adopted by a board of county commissioners and did not apply to actions of the county board of adjustment. Id. at 666. Therefore, there was no statutory right to refer the board of adjustment's decision to issue the CAFO permits.

The case was decided on August 24, 2005.