Hanson County court can consider objections to swine nursery, SD Supreme Court says


The South Dakota Supreme Court on Wednesday partially overturned a Hanson County court's 2018 decision to dismiss a couple's objections to the construction of a swine nursery in Pleasant Township.

The court, in an opinion written by Justice Steven R. Jensen, determined an application filed by Loren Huber and Amy Nolan-Huber against Hanson County's planning commission and board of adjustment and initially dismissed by Judge Chris Giles met the requirements to be considered by a circuit court.

Triple K Land LLC requested a conditional use permit to build and operate a nursery big enough to hold 2,400 pigs on land adjacent to a property owned by the Hubers. While the property is not the Hubers' primary residence, according to the opinion, they regularly stay in a farmhouse on the property and alleged that if the nursery were to be built, it would "result in unmanageable manure and odor control on Hubers' adjacent property."

The Hubers, according to the opinion, planned to object to the permit, but the Hanson County Board of Adjustment unanimously approved it on Feb. 20, 2018, before the hearing was scheduled to begin.

When the Hubers' counsel expressed concern about the circumstances of the hearing, the board of adjustment vacated the conditional use permit and scheduled a new hearing for April 18, 2018, when the Hubers and representatives from Triple K were both questioned. That May, the board held another hearing, and the permit was again approved unanimously on June 5, 2018.


Later that month, the Hubers filed an application to the circuit court arguing the board's decision was illegal.

The application, titled "Affidavit and Application for Alternative Writ of Prohibition or, in the alternative, Applicant's Verified Petition Setting forth the Illegality of the Board of Adjustment's May Meeting Conditional Use Permit," claimed the board of adjustment was "biased and predisposed" in deciding to grant the conditional use permit and that the decision was illegal because it failed to make a required finding that granting the permit wouldn't "adversely affect the public interest."

The court scheduled a hearing, six days prior to which Triple K motioned to intervene and dismiss the application, arguing lack of jurisdiction and that the Hubers' petition was an improper writ of prohibition. The county also filed a motion to dismiss.

At the hearing, Giles dismissed the Hubers' petition, concluding the court didn't have subject matter jurisdiction and that the documents filed by the Hubers did not qualify as a writ of certiorari, which he said would be the only legally permissible way to proceed with their case.

In their appeal, the Hubers asked the Supreme Court to determine whether the circuit court was wrong in dismissing their application for lack of subject matter jurisdiction and whether it abused its discretion by granting Triple K's motion to intervene in the case.

The Hubers' only argument in protest of the court granting Triple K's motion to intervene was that the motion was served less than 10 days before the hearing. The Supreme Court ruled that the Hubers hadn't raised a reason the circuit court had abused its discretion in granting Triple K's oral motion at the hearing and affirmed that part of the circuit court's decision.

In justifying why the Hubers' application did in fact meet the requirements for the circuit court to have jurisdiction to consider it, Jensen referenced case law that determined board of adjustment appeals must be done by a writ of certiorari and opined that that requirement meant the circuit court didn't err in dismissing the Hubers' claim for writ of prohibition.

However, the court also determined that although the Hubers' application hadn't specifically used the term "writ of certiorari," the fact that it cited the law outlining the procedure for filing a writ of certiorari and that it satisfied all four requirements for appealing a board of adjustment's decision with a writ of certiorari gave the circuit court jurisdiction to consider it as if it were specifically identified as one.


"Although the better practice would have been to identify the request as one seeking a writ of certiorari, the failure to do so did not deprive the circuit court of subject matter jurisdiction under SDCL 11-2-61," Jensen wrote.

Chief Justice David Gilbertson and Justices Janine M. Kern, Mark Salter and Patricia Devaney concurred with the opinion.

Related Topics: CRIME AND COURTS
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