Summary of a Recent
Judicial Development in
Animal Feeding Operations

Supreme Court Remands Denial of CAFO Building Permit Due to
Unaddressed Jurisdictional Questions

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Elliott v. Board of County Commissioners of Lake County, 703 N.W.2d 361 (S.D. 2005), the Supreme Court of South Dakota remanded a trial court's denial of appellant permit applicant's application to build a hog confinement facility for unaddressed jurisdiction questions.

Background

In early 2001, Elliott developed plans to operate a hog confinement facility in Lake County, South Dakota. Id. at 361. South Dakota required animal feeding operations consisting of more than 500 animal units to obtain a conditional use permit in addition to obtaining a building permit. Id. at 362. Rather than obtaining a conditional use permit, Elliott decided to restrict his hog operation to fewer than 500 animal units. Id. Elliott's building permit application satisfied all county zoning requirements, but rather than approving the application, the Lake County zoning officer deferred the application to the Lake County Board of Commissioners. Id. Shortly thereafter, the commissioners placed a moratorium on the issuance of all new building permits for confined animal feeding operations and refused to consider Elliott's permit application indefinitely. Id. Ten months later, the commissioners amended the county zoning plan to require a conditional use permit for all confined animal feeding operations. Id. One year after the moratorium began, the commissioners finally reviewed Elliott's building permit application. Id. at 363. The application was denied even though the commissioners regularly represented to Elliott and the trial court that they had applied the pre-amended zoning ordinance and considered Elliott's request as one for a new building only. Id. Elliott appealed the board's decision to the trial court. Id. On its own prerogative, the trial court decided to apply the amended ordinance rather than the pre-amended ordinance. Id. at 364.

Arguments

On appeal, Elliott claimed that the essential legal issue was whether the county acted unlawfully by imposing additional new building permit requirements. Id.

The board argued that they were not in error for denying Elliott's new building permit request. Id.

Analysis and Holdings

The South Dakota legislature specified that an appeal to circuit court must be in the form of a writ of certiorari. Id. at 367. In considering writs of certiorari, the court explained that they were limited in their reviewing powers to consider only whether the board of adjustment had jurisdiction over the matter and whether it pursued the authority conferred upon it. Id. The process cannot be used to examine evidence for the purpose of determining the correctness of a finding, or to grant an appeal without statutory authorization because the right to appeal is statutory. Id.

Ultimately, the court focused on the question of jurisdiction, and in particular, which role the board members assumed when they acted on Elliott's application to judge the legality of the action and the right to appeal. Id. at 368. Although neither party to the lawsuit raised jurisdictional questions, the court questioned the trial court's jurisdiction. Id. South Dakota had an affirmative rule that stated that jurisdiction must affirmatively appear on the record and that the court is required to record jurisdictional deficiencies. Id. Because the trial court's jurisdiction did not appear on the record, the court remanded the case to determine whether the trial court had jurisdiction to decide the case. Id. at 369-70.

The case was decided on August 17, 2005.