## Facts

- A developer sought a conditional use permit to build and operate a swine concentrated animal feeding operation (CAFO) in Grant County, South Dakota.
- The county zoning ordinance required setback distances between a CAFO and certain protected features, including “wells,” and defined “well” by its purpose (constructed for the purpose of obtaining groundwater).
- On the same day the developer filed its conditional use application, neighboring landowners completed excavation of a new water-well structure on their property.
- At the public hearing, the landowners asserted the proposed CAFO would be within the ordinance’s minimum setback distance from their new well and thus should be denied.
- The developer argued the structure was created to defeat the permit application rather than to obtain groundwater for use, emphasizing timing and circumstances.
- After hearings and evidence, the county Board of Adjustment found the structure did not qualify as a “well” under the ordinance’s purpose-based definition and approved the conditional use permit.
- Opponents sought certiorari review in circuit court, submitted an affidavit from one landowner regarding the well’s purpose and use, and challenged the Board’s interpretation and decision.
- The circuit court affirmed the Board and struck the affidavit as outside the administrative record.
- The opponents appealed to the South Dakota Supreme Court.

## Issues

1. Whether the Board of Adjustment acted within its jurisdiction and regularly pursued its authority in concluding the landowners’ structure was not a “well” under the zoning ordinance and approving the CAFO permit.
2. Whether the circuit court erred by striking a landowner affidavit offered during judicial review that was not part of the record before the Board.

## Decision

- The Supreme Court affirmed the circuit court’s judgment and the Board’s approval of the conditional use permit.
- The Court held the Board regularly pursued its authority and acted within its jurisdiction when it applied the ordinance’s purpose-based definition of “well” and found the structure did not qualify.
- The Court held the circuit court properly struck the landowner affidavit because certiorari review is confined to the record made before the Board.

## Legal Principles

- On certiorari review of a local quasi-judicial land-use decision, judicial review is limited to whether the tribunal had jurisdiction and regularly pursued its authority; courts do not reweigh evidence or make independent factual findings.
- A board may interpret and apply a zoning ordinance and make factual determinations when the ordinance uses functional or purpose-based definitions; circumstantial evidence may support findings about purpose.
- A board’s decision will be sustained if supported by substantial evidence in the administrative record and not contrary to law or the board’s lawful authority.
- Certiorari review is generally closed-record; parties may not supplement the record on judicial review with new affidavits or evidence not presented to the tribunal.

## Conclusion

The court sustained the CAFO conditional use permit because the Board’s determination that the newly excavated structure was not a “well” under a purpose-based ordinance definition was supported by the record and within the Board’s authority, and because certiorari review did not allow supplementation of the administrative record with a new affidavit.


Grant Cnty. Concerned Citizens v. Grant Cnty. Bd. of Adjustment, 866 N.W.2d 149 (S.D. 2015)