My friends up in Grant County, including Rep. Kathy Tyler (D-4/Big Stone City), are worried that some Minnesota operators are going to stink up their fair county with a whole bunch of pig poop. Grant County approved Teton "Family" Farms' application for a CAFO permit to build a sow farm that would produce 140,000 piglets a year. Locals appealed the permit, saying Teton included illegal contracts in its application. Opponents also argued in court that the proposed facility posed odor and water pollution risks that the county should not have permitted.
Judge Robert Timm didn't rule on the pigs, the poop, or the permit. He got excited, forgot he's not on the Supreme Court, and declared the law (SDCL Chapter 11-2) under which the permit was approved and appealed unconstitutional!
Yeah, that gets an exclamation point. Maybe I haven't read enough law books (scratch that: I definitely haven't read enough law books), but can anyone show me precedent for a circuit court judge exercising judicial review like this?
Here's the gist: In appeals of CAFO permits and other conditional use decisions, boards of adjustment appointed by county commissions get the benefit of the doubt. Appellants have to prove to the judge that the board screwed up somehow.
But in counties that don't appoint separate boards of adjustment and make zoning decisions at the commission level, appeals of CAFO permits are heard de novo. Both sides present their cases, and the judge decides without any presumption for one side or the other.
Basically, Grant County residents have to jump a higher legal bar to stop a CAFO than residents in other counties that don't have separate boards of adjustment. And that, says Judge Timm, violates the 14th Amendment:
Judge Timm ruled that restricting residents of certain counties to appeal county conditional use permit decisions under the writ of certiorari standard of review violates the Equal Protection clause of the South Dakota Constitution and the United States Constitution [links mine; Debbie Hemmer, "Teton Ruling Delivered; Appeal Will Send Case To Supreme Court," Grant County Review, 2013.08.28, p. 1].
Judge Timm threw another monkey wrench in the pig works by declining to rule on the merits of the permit itself. That delays Teton's sow farm a few more months, as the South Dakota Supreme Court will sort out Judge Timm's constitutional question, then send the whole thing back to him for a ruling on the permit under whichever legal standard its says should apply. If Judge Timm then says the Teton permit passes muster, the sow farm opponents will be able to drag that back to the Supreme Court for a separate appeal on the merits.
In short, thanks to a surprise judicial twist, Kathy Tyler and her neighbors are guaranteed at least a few more months of fresh air.