Summary of a Recent
Judicial Development in
Animal Feeding Operations

Taxpayers Fail to Heed Appropriate Appellate Procedure and Lose
Opportunity to Contest Issuance of CAFO Permit

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Hay v. Board of Commissioners for Grant County, 670 N.W.2d 376 (S.D. 2003), the Supreme Court of South Dakota affirmed the circuit court's decision denying the taxpayers' petition for a writ of mandamus to require the county board of commissioners to review a zoning and planning commission's decision to grant a permit allowing expansion of a concentrated animal feeding operation (CAFO).

Background

Two taxpayers appealed the decision of the county zoning and planning commission, acting as a board of adjustment, to issue a permit for the expansion of a dairy CAFO facility. Id. at 377. The board refused to hear the taxpayers' appeal, so they petitioned the circuit court for a writ of mandamus to compel the board to hear their appeal. Id. The circuit court denied the writ, explaining that the planning and zoning commission was properly sitting as a board of adjustment, and county commissioners lacked jurisdiction over the board of adjustment. Id. The taxpayers appealed.

Arguments

The taxpayers questioned whether a planning and zoning commission must expressly convene as a board of adjustment to hear board of adjustment issues. Id. The taxpayers claimed that the trial court erred when it determined that the zoning and planning commission was acting as a board of adjustment at the meeting of the planning and zoning commission to discuss the CAFO permit at issue. Id at 378. They insisted that the planning commission was not properly sitting as a board of adjustment; therefore, any decision made that evening was a decision of the planning commission and not of the board of adjustment. Id. Additionally, the taxpayers asserted that the trial court erred when it ruled that the taxpayers' time for appeal or referendum had expired when the county commission had failed either to approve or disapprove of the zoning board's action. Id. at 377.

Analysis and Holdings

When a trial court denies a writ of mandamus, the reviewing court's only action is to decide whether the trial court abused its discretion. Id. at 378. The mandamus petitioner must have a clear legal right to performance of the duty sought, and the respondent must have a definite legal obligation to perform the duty. Id. The court's ruling focused on the appeal's timeliness rather than the title of the body ruling on the appropriateness of the CAFO permit issuance. Id. The court held that the taxpayers failed to seek timely review of the board of adjustment's decision. Id. at 379. A petition must be presented to the circuit court within 30 days after the filing of the decision in the office of the board of adjustment. Id. at 380. Rather than following the proper procedure, the taxpayers sought a writ of mandamus and, therefore, missed their 30 day window to properly file their appeal in the circuit court. Id. Therefore, the circuit court was without jurisdiction to hear the matter. Id.

The case was decided on September 24, 2003.