Zoning Board of Adjustment properly carried out its role in approving application for CAFO

by Andrea Vaage

Grant County Concerned Citizens & Tyler v Grant County
South Dakota Supreme Court, June 24, 2015

Teton LLC applied for a conditional use permit to construct a confined animal feeding operation (CAFO) to house 6,616 swine larger than 55 pounds (“finisher” swine according to the Zoning Ordinances of Grant County (ZOGC)) and 1,200 swine smaller than 55 pounds (“nursery” swine in the ZOGC). The proposed operation would classify as a Class A CAFO-the largest possible designation under the ZOGC.  The Grant County Board of Adjustment (BOA) approved the permit after a hearing attended by 200 individuals. Grant County Concerned Citizens (GCCC) appealed.  Several procedural events are not included here, but the case eventually made its way to the South Dakota Supreme Court.  The Court’s conclusions on GCCC’s claims follow.

After the circuit court made a decision affirming the Board’s decision, GCCC submitted an affidavit signed by Tyler explaining the purpose of the excavation was to obtain water for his horse herd. The Board and Teton moved to strike the affidavit from record, upon which the circuit court granted the motion.

Private well. Under the ZOGC, a CAFO cannot be constructed within 2,640 feet of a private well. The ZOCG does not provide a definition of a “well,” however, SDCL 46-1-6(18) defines “well” as “an artificial excavation or opening in the ground, made by means of digging, boring, drilling, jetting, or by any other artificial method, for the purpose of obtaining groundwater.” GCCC claimed that the BOA’s decision improperly allows a CAFO within 2,640 feet of a well on neighbor Tyler’s property; however, the evidence showed that the well was actually dug on or just before the day of Teton’s application and that the excavation produced 12 gallons of water that day. The Board determined the Tyler’s constructed the well in order to frustrate the Teton’s application and as such the excavation did not meet the definition of “well.”  The Court affirmed, concluding that the BOA’s finding that the purpose of the excavation was to frustrate the CAFO application was material to the statute’s definition of “well” when the definition requires a well to be dug “for the purpose of obtaining groundwater.”  It was irrelevant that the excavation actually obtained 12 gallons of water.

Manure management and operation plan. Section 1034(4) of the ZOCG stipulates that the proposed CAFO must provide a manure management plan. GCCC contests that Teton’s did not find adequate acreage on which to spread manure, because Teton “significantly overstated” the amount of land on which it could apply manure.  The Court concluded that the Board made proper factual determinations on this issue, noting that ZOCG offers little in the way of specific requirements for a manure management and operation plan.

Failure to give notice to Melrose Township. The access road to the CAFO was jointly maintained by two townships. One of the two townships, Melrose Township, was not notified of the proposed CAFO by Teton.  Section 1304(12)(K) of the ZOCG requires “Notification of whomever maintains the access road (township, county and state).” An individual at the hearing for the permit testified that both townships had known about the proposed CAFO and decided not to upgrade the access road. It is irrelevant that the township was not notified by Teton, because the township had actual notice of the proceedings as evidenced by this individual’s testimony.

Nutrient management plan.  GCCC asserts that the proposed CAFO would not be able to obtain the water required to operate as evidenced by Teton’s nutrient management plan.  The Court considered this argument waived because the ZOGC’s requirements related to nutrient management plans do not address the water requirements of a CAFO.

GCCC made a number of other similar claims, but the Court found nothing in the record to suggest in these or any of the discussed claims that the Board did not regularly pursue its authority. The Supreme Court affirmed the ruling of the trial court.

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