Summary of a Recent
Judicial Development in
Animal Feeding Operations

CAFO Classified as 'Preexisting Use'

Chuck Munson
National AgLaw Center Graduate Assistant

In Jensen v. Lincoln County Board of Commissioners, 718 N.W.2d 606 (S.D. 2006), the Supreme Court of South Dakota held that the appellee County's evidence was sufficient to establish that a feedlot in question was a preexisting use, and thus that county was required under its zoning ordinance to grant a conditional use permit.

The plaintiff, a family farm owner who resided on the property, objected to the County's grant of a conditional use permit to his neighbor, a feedlot owner who had been farming and feeding cattle on his lot since 1972. Id. at 608. In May 2005, the plaintiff's neighbor applied for a conditional use permit for a Class D concentrated animal feeding operation (CAFO) from the Planning Commission, and his application was approved. Id. Because of the close proximity of the feedlot to the plaintiff's residence (150 feet), the plaintiff challenged the permit by appealing to the Lincoln County Board of County Commissioners (Board), claiming that the feedlot did not meet local zoning setback requirements. Id. When his appeal failed, he sought a writ of mandamus in circuit court asking the court to compel the County either to enforce the setback ordinance or to deny his neighbor's conditional use permit. Id.

After a hearing, the circuit court denied plaintiff's writ of mandamus, and plaintiff appealed, presenting two issues for the Supreme Court's review: (1) whether the circuit court abused its discretion in denying plaintiff's application for a writ of mandamus, and (2) whether the circuit court erred in denying plaintiff's motion for a rehearing (found to be a non-issue, and therefore not further discussed in summary). Id. Appellee County also presented an issue for review: whether the availability of a plain, speedy, and adequate remedy in the ordinary course of the law precluded the issuance of a writ of mandamus. Id.

The court quickly rejected the County's claim that a writ of mandamus could not properly be used to challenge a county commission zoning decision. Id. at 610. The court found that this contention lacked merit, because SDCL 11-2-35 clearly gives taxpayers the right to seek mandamus relief when a party asserts that county officials have failed to perform duties required by the zoning ordinances. Id.

In Lincoln County, the county ordinances recognize a CAFO as a conditional use for which a permit is required. Id. at 611. Plaintiff argued that under the CAFO ordinance, a Class D CAFO must be located at least 0.25 miles from a neighbor's dwelling, and that his neighbor's CAFO was in violation. Id. The County did not disagree with the plaintiff, but rather argued that due to this particular CAFO's status as a "preexisting use," the neighbor's feedlot was exempt from the setback criterion in the ordinance. Id. Plaintiff further claimed that his neighbor had expanded his feedlot since the time the relevant ordinance was adopted and that the expansion should have been characterized as a "nonconforming use." Id. at 612. The County asserted that plaintiff's argument was contrary to what the County considers an expansion, because an expansion is determined by ranges rather than the number of cattle themselves, therefore the feedlot would not be considered expanded as long as the number of cattle was within the range of a Class D CAFO. Id.

The Supreme Court upheld the circuit court's ruling that, as an established lawful feedlot eligible for a conditional use permit before the adoption of the 1995 ordinance, the feedlot was "deemed to have received a conditional use permit…and shall be provided with such permit by the County upon request." Id. at 613. Furthermore, the court held that the circuit court's finding that the feedlot had not been enlarged was not clearly erroneous or a result of misapplication of the law, and that plaintiff's argument that the feedlot was a nonconforming use was without merit. Id.

The case was decided on July 5, 2006; this summary was posted July 20, 2007.