#27977, #27987-aff in pt & rev in pt-GAS
2017 S.D. 48

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA

                                      ****
NICHOLAS L. and
DONNELLE K. HOFFMAN,                         Applicants and Appellants,

      v.

JESSICA VAN WYK, in her
capacity as the Douglas
County Planning and Zoning
Administrator, and THE
DOUGLAS COUNTY PLANNING
AND ZONING COMMISSION,                       Respondents and Appellees.


                                      ****

                   APPEAL FROM THE CIRCUIT COURT OF
                      THE FIRST JUDICIAL CIRCUIT
                    DOUGLAS COUNTY, SOUTH DAKOTA

                                      ****

                 THE HONORABLE TIMOTHY W. BJORKMAN
                            Retired Judge

                                      ****

TIMOTHY R. WHALEN
Lake Andes, South Dakota                     Attorney for applicants
                                             and appellants.


JASON W. SHANKS of
May & Johnson, PC
Sioux Falls, South Dakota                    Attorneys for respondents and
                                             appellees.

                                      ****

                                             CONSIDERED ON BRIEFS
                                             ON MAY 30, 2017
                                             OPINION FILED 08/09/17
#27977, #27987

SEVERSON, Justice

[¶1.]       Nicholas and Donnelle Hoffman own real property in Douglas County.

The Hoffmans learned that Douglas Luebke applied for and received a building

permit for a hog confinement unit from Jessica Van Wyk, the Douglas County

Planning and Zoning Administrator. The Hoffmans applied for a writ of mandamus

compelling Van Wyk and the Douglas County Planning and Zoning Commission to

comply with the County’s zoning ordinance and revoke the building permit. The

circuit court held a trial and denied the Hoffmans’ request. The Hoffmans appeal,

and Van Wyk counters with a notice of review. We affirm in part and reverse in

part.

                         Facts and Procedural History

[¶2.]       Douglas Luebke applied for and received a building permit from Van

Wyk, in her capacity as Douglas County Planning and Zoning Administrator, for a

hog confinement unit housing up to 2,400 head on July 22, 2015. Luebke submitted

an accompanying hand-drawn site plan with his application. The facility was to be

located fewer than two miles from the Corsica Lake Recreation Area and under a

half mile from the Hoffman residence. Van Wyk made no public notice of her

decision to grant Luebke’s application, as she determined that the ordinance did not

require notice be given. However, Van Wyk informed the Commission that she had

issued a permit to Luebke prior to the Commission’s meeting on September 10,

2015. On September 11, 2015, the Hoffmans met with Van Wyk at her office, where

they discussed the permit granted to Luebke. Van Wyk explained to the Hoffmans




                                        -1-
#27977, #27987

that Luebke’s hog barn would house fewer than 1,000 animal units 1 and did not

constitute an animal feeding operation under the ordinance. As such, she

considered it a permitted use under the zoning ordinance for which a building

permit could be granted.

[¶3.]         On December 22, 2015, the Hoffmans’ counsel sent a letter to the

Douglas County State’s Attorney, who then forwarded the letter to Van Wyk. The

letter requested that Van Wyk revoke the building permit issued to Luebke. On

December 28, 2015, the Commission held an emergency meeting and determined

that the building permit should not be revoked. Van Wyk then sent a response

letter to the Hoffmans’ counsel explaining Van Wyk’s decision not to revoke the

permit, reiterating the fact that the facility would house fewer than 1,000 animal

units under the ordinance. No written notice of appeal was filed after Van Wyk

issued the letter.

[¶4.]         On March 14, 2016, the Hoffmans applied for a writ of mandamus to

compel Van Wyk and the Commission to revoke the building permit and put a halt

to all construction. The circuit court issued an alternative writ of mandamus

ordering Van Wyk and the Commission to show cause explaining why the court

should not issue a permanent writ of mandamus. On June 3, 2016, the court held a

trial. In its memorandum decision, the court held that the facility was not a “farm,”



1.      Different animal species are converted under the ordinance into “animal
        units.” For example, a “feeder or slaughter beef animal” is equivalent to one
        animal unit, while five ducks are equivalent to one animal unit. Thus, for
        purposes of what constitutes an animal feeding operation, housing 1,000
        feeder or slaughter beef animals or 5,000 ducks would make a facility an
        animal feeding operation.

                                          -2-
#27977, #27987

“ranch,” or “orchard,” and that it therefore did not fall under any of the permitted

uses of land for which a building permit could be granted. Nevertheless, the circuit

court concluded that a writ of mandamus could not be used to undo an already

completed act. Additionally, it found that principles of equity would not entitle the

Hoffmans to relief. Thus, while the court concluded that the “[a]dministrator had a

ministerial duty—which it failed to fulfill—to deny Luebke’s permit application,” it

ultimately decided that a writ of mandamus would be inappropriate.

[¶5.]        The Hoffmans appeal, contending that the circuit court erred by failing

to issue a writ of mandamus. Van Wyk argues in a notice of review that the circuit

court erred in determining that the hog barn was not a permitted use under the

ordinance. Because we agree with Van Wyk, we reverse the circuit court’s

conclusion that the hog barn was not a permitted use under the ordinance but

affirm its decision not to grant the Hoffmans a writ of mandamus.

                                      Decision

[¶6.]        Van Wyk argues on notice of review that the circuit court erred when it

determined that Luebke’s hog barn was not a “farm” or “ranch” under the

ordinance. We agree that Luebke’s hog confinement facility, located in an

agricultural district, was a permitted use without the need for a variance or

conditional-use permit. This issue is dispositive of the case, and we need not reach

the merits of the Hoffmans’ arguments.

[¶7.]        The parties agree that the facility was not an “agriculture” use under

the ordinance’s definition of terms. “Agriculture” is defined, in part, as “the raising

and/or feeding of [fewer] than five hundred (500) animal units of livestock[.]”


                                          -3-
#27977, #27987

However, Van Wyk contends that the facility is a permitted use as a farm or ranch.

Farms, ranches, and orchards are defined collectively under the ordinance as:

              An area of twenty five (25) acres or more which is used for
              growing usual farm products, vegetables, fruits, trees, and
              grain, and for the raising thereon of the usual farm poultry and
              farm animals such as horses, cattle, hogs, and sheep, and
              including the necessary accessory uses for raising, treating, and
              storing products raised on the premises; but excluding an
              Animal Feeding Operation.

Van Wyk points to evidence introduced at trial demonstrating that Luebke used the

land that the facility was built on for growing farm products. Van Wyk argues that

this area exceeded the 25-acre requirement detailed in the ordinance, whereas “the

[o]rdinance does not specify any specific size requirements other than that there be

an ‘area’ of 25 acres or more used for growing farm products and raising hogs.”

Further, because the facility houses fewer than 1,000 animal units, 2 Van Wyk

observes that it would not constitute an animal-feeding operation.

[¶8.]         “[S]tatutory interpretation and application are questions of law that

we review de novo.” Krsnak v. S.D. Dep’t of Env’t & Nat. Res., 2012 S.D. 89, ¶ 8,

824 N.W.2d 429, 433 (quoting State v. Goulding, 2011 S.D. 25, ¶ 5, 799 N.W.2d 412,

414). “Zoning ordinances are interpreted according to the rules of statutory

construction and any rules of construction included in the ordinances themselves.”

Even v. City of Parker, 1999 S.D. 72, ¶ 8, 597 N.W.2d 670, 673 (quoting Peters v.

Spearfish ETJ Planning Comm’n, 1997 S.D. 105, ¶ 5, 567 N.W.2d 880, 883). “When

interpreting an ordinance, we must assume that the legislative body meant what




2.      Under the ordinance, 2,400 head of hogs equal 960 animal units.

                                          -4-
#27977, #27987

the ordinance says and give its words and phrases plain meaning and effect.” Id.

(quoting Peters, 1997 S.D. 105, ¶ 5, 567 N.W.2d at 883).

[¶9.]        The circuit court pointed to an “absence of testimony or evidence in the

Record that Luebke used the land for growing grain or farm products in addition to

the proposed use of feeding hogs[.]” However, Van Wyk highlights in her brief the

fact that the “Hoffmans did not allege or assert in their Application and Affidavit of

Writ of Mandamus that Luebke was not growing farm products on his quarter . . .

section; rather, they only claimed violation of the [ordinance] based on purported

set-back violations and an inadequate site plan drawing.” Additionally, evidence

presented at trial does support a finding that Luebke grew farm products on the

land. Although the permit described only 10 acres of land, as Van Wyk observes, it

is undisputed that Luebke owned the quarter section of land (160 acres) where the

facility was built and that such land exceeded the minimum 25 acres for a farm or

ranch. Luebke himself testified that he farmed for a living, and aerial photographs

introduced at trial clearly show the land surrounding the facility being used for

cultivation. While the 10 acres used for the hog barn may not have involved

cultivation, it was nonetheless a component of “[a]n area of twenty five . . . acres or

more” that involved growing farm products. Thus, the hog barn was a permitted

use under the ordinance.

[¶10.]       The Hoffmans also argue that the Luebke hog barn is in violation of

the restrictions set forth in Article 5, § 515(5) and (6), which provide setback

requirements for animal waste facilities. An animal waste facility is defined by the

ordinance as “[a] structure designed and constructed to store and/or process animal


                                          -5-
#27977, #27987

waste. Animal waste facilities include but are not limited to: holding basins,

lagoons, pits and slurry stores.” Section 516, “Animal Feeding Operation

Performance Standards,” subsection 5 states that “[a]nimal waste facilities shall be

located no closer than two (2) miles from . . . the Corsica Lake Recreation Area.”

Subsection 6 states that “[a]nimal waste facilities comprised of a . . . slurry store . . .

shall be located no closer than one half (1/2) mile from any . . . residential dwelling.”

The Hoffmans note that “Luebke has a manure slurry storage pit under the hog

confinement unit,” which the Hoffmans contend renders the barn an animal waste

facility. The Hoffmans argue that the building, which is located fewer than two

miles from the Corsica Lake Recreation Area and under half a mile from the

Hoffmans’ residence, “violates practically all of the [setback] requirements” for such

a facility.

[¶11.]        Animal waste facilities here, unlike in Woodruff v. Board of

Commissioners for Hand County, 2007 S.D. 113, ¶ 9, 741 N.W.2d 746, 748, are

“defined separately from an animal feeding operation.” Further, we have said that

when a zoning ordinance is comprehensive in scope, “the title of [a section] does not

determine the scope or application of [the] subsection[.]” Id. ¶ 8, 741 N.W.2d at 748.

Nevertheless, it is clear that the ordinance treats animal waste facilities as a

component of a feeding operation. Subsection 1 states that “Animal Feeding

Operations shall submit animal waste management system plans and specifications

for review and approval prior to construction[.]” Subsequent subsections refer to

“such facilities” and “waste facilities.” Given the marked similarity of the language

used here to that of the language employed in the ordinance analyzed in Woodruff,


                                            -6-
#27977, #27987

there is no reason for us to interpret “animal waste management system” differently

than we did there: that is, that “animal waste management system” refers to an

“animal waste facility.” Id. ¶ 10, 741 N.W.2d at 748. This also proves to be a more

sensible approach to Article 5 as a whole. “Animal waste facilities” are neither

recognized as a principle use or structure under § 503 nor as a conditional use

under § 507, whereas “animal feeding operations” are identified under the latter.

Animal waste facilities, if viewed as distinct from an animal feeding operation,

would thus fall under § 509 as a prohibited use or structure. As such, construction

of such a facility—which the builder of an animal-feeding operation must submit

plans and specifications for—would always require a variance.

[¶12.]       Even if the use of the hog barn is permitted, the Hoffmans contend

that the application submitted by Luebke did not conform to the ordinance’s other

requirements. Article 9, § 913, of the ordinance states that an application for a

building permit “shall be accompanied by a site plan including but not limited to the

following items: drawn to scale, including a north arrow, showing property lines,

actual dimensions and shape of the lot to be built upon, the exact sizes and locations

on the lot of buildings already existing, if any; and the location and dimensions of

the proposed building or alteration.” The ordinance refers to a detailed example of a

site map as a reference. Section 911 further provides that “[n]o building permit

shall be issued by the Zoning Administrator except in conformity with the

provisions of this Ordinance unless they received a written order from the Board of

Adjustment in the form of an administrative review, conditional use, or variance as

provided by this Ordinance.” The Hoffmans argue in their brief that “Luebke’s


                                          -7-
#27977, #27987

application was most certainly not the specific and detailed specimen contemplated

by the ordinances and clearly did not comply with the mandatory requirements of

the ordinances.” The Hoffmans point to the hand-drawn site plan penned by

Luebke, noting that it was “not detailed” or drawn “to scale,” and the Hoffmans list

a litany of other deficiencies contained therein. The Hoffmans further observe that

Van Wyk never received a written order from the Board of Adjustment directing her

to otherwise issue the building permit.

[¶13.]       Van Wyk observes that the application included a site plan “which was

drawn to approximate scale, identified the location of the facility on [Luebke’s]

property, and included a north arrow to show direction.” Van Wyk contends that it

is within the zoning administrator’s discretion to determine whether these details

were sufficient. Van Wyk also highlights the fact that Luebke testified that he

would have submitted a more detailed drawing had it been requested.

Nevertheless, even if the Hoffmans are correct that the site plan did not meet the

requirements set out by the ordinance and that “[Van Wyk] had no discretion as to

what information could be left out of the application process,” such argument is

ultimately beside the point. As Van Wyk notes, construction of the facility had

already been completed at the time of trial. Issuing a writ of mandamus to revoke

the permit now would thus be ineffective, and we have stated that “[m]andamus

will not be granted when it would be unavailing.” Willoughby v. Grim, 1998 S.D.

68, ¶ 12, 581 N.W.2d 165, 169.

[¶14.]       The Hoffmans’ relief, if any, lies in enforcing the zoning ordinance so

that Luebke does not make an impermissible use of the facility. However, given our


                                          -8-
#27977, #27987

above analysis, it is clear that the facility was a permitted use under the ordinance

as part of a farm or ranch. As such, we reverse insofar as the circuit court

concluded that the building permit should not have been issued but affirm its

decision denying the Hoffmans a writ of mandamus.

[¶15.]       GILBERTSON, Chief Justice, and ZINTER and KERN, Justices, and

WILBUR, Retired Justice, concur.




                                         -9-
