Powers v. Turner County Board of Adjustment

#29865, #29870, #29871-a-SRJ
2022 S.D. 77

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

****

JEFFREY K. POWERS and
VICKY URBAN-REASONOVER, Petitioners and Appellants,

v.

TURNER COUNTY BOARD OF
ADJUSTMENT, Respondent and Appellee,

and

STEVE AND ETHAN SCHMEICHEL
and NORWAY PORK OP, LLC, Intervenors and Appellees.

****

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

****

THE HONORABLE CHRIS S. GILES
Judge

****

MITCHELL A. PETERSON
MICHAEL L. SNYDER of
Davenport, Evans, Hurwitz
& Smith, LLP
Sioux Falls, South Dakota Attorneys for petitioners
and appellants.

BRIAN J. DONAHOE of
Donna Law Firm, P.C.
Minneapolis, Minnesota Attorneys for intervenors and
appellees.

****
ARGUED
OCTOBER 4, 2022
OPINION FILED 12/21/2022
****

DOUGLAS M. DEIBERT of
Cadwell, Sanford, Deibert
& Garry, LLP
Sioux Falls, South Dakota Attorneys for respondent and
appellee.
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JENSEN, Chief Justice

[¶1.] The Turner County Board of Adjustment (Board) granted Steve and

Ethan Schmeichel and Norway Pork Op, LLC (Intervenors) a conditional use permit

(CUP) for a large concentrated animal feed operation (CAFO). Nearby landowners

Jeffrey K. Powers and Vicky Urban-Reasonover (Petitioners) petitioned the circuit

court pursuant to SDCL 11-2-61 for a writ of certiorari challenging the legality of

the CUP. Over the objections of the Board and Intervenors, the circuit court

determined Petitioners had standing to challenge the conditional use permit but

denied the writ of certiorari. Petitioners appeal the circuit court’s denial of the writ

of certiorari. By notice of review, the Board and Intervenors appeal the issues of

standing and the circuit court’s refusal to impose attorney fees on Petitioners under

SDCL 11-2-65. We affirm.

Facts and Procedural History

[¶2.] The Schmeichels initially sought a CUP in 2018 for a large CAFO that

would house 7,400 head of swine, consisting of 5,400 sows and 2,000 hogs over 55

pounds. The Board voted to approve a CUP for the operation (2018 Permit).

Petitioners filed a petition for a writ of certiorari with the circuit court challenging

the Board’s approval of the 2018 Permit. The circuit court dismissed that petition

on summary judgment, determining that Petitioners lacked standing to challenge

the CUP. In Powers v. Turner County Board of Adjustment (Powers I), 2020 S.D. 60,

951 N.W.2d 284, this Court reversed and remanded, holding that Petitioners had

presented sufficient evidence to generate a question of fact whether they were

aggrieved parties.

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[¶3.] Before that action was resolved, Intervenors submitted the CUP

application at issue in this case for the same CAFO (2020 Permit). 1 Prior to the

hearing on the 2020 Permit, Petitioners submitted reports from Mr. Steve Shaykett,

a real estate appraiser, and Mr. Anton Jitnikovitch, an odor modeling expert with a

company called Scentroid. Intervenors’ odor expert, Dr. Richard Nicolai, testified at

the hearing. Board members Mick Miller, Anthony Champa, Richard Vasgaard,

and Dean Austin granted the 2020 Permit by a unanimous vote. Steve Schmeichel

was a member of the Board at the time but recused himself and did not participate

as a Board member at the hearing because of his interest in the CAFO.

[¶4.] Petitioners petitioned for a writ of certiorari with the circuit court

challenging the Board’s approval of the 2020 Permit. Intervenors were permitted to

intervene. The parties then stipulated to the entry of a final judgment on the

pending certiorari action challenging the 2018 Permit, determining that

“Schmeichels shall not use the 2018 Permit” and dismissing the action as moot. 2

[¶5.] The circuit court held a bench trial on the petition for writ of certiorari.

Shaykett, Petitioners, the four members of the Board who voted to approve the 2020

1. The parties agree that the 2020 application was identical to the 2018
application except that Norway Pork Op, LLC, which the Schmeichels had
formed to operate the CAFO, was an additional applicant for the 2020 permit.

2. At the Board hearing, Board members questioned the effect of granting the
2020 Permit after the 2018 permit was already approved. Intervenors’
counsel explained their effort to comply with the Ordinance, which required
an amended or new CUP application when ownership changed or if a year
had passed since approval. Petitioners’ counsel expressed concerns that by
approving the 2020 Permit the Board had authorized twice as large a CAFO
as intended. In any event, the parties’ stipulated judgment resolved any
concerns about the impact of the 2018 Permit.

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Permit, and then-Turner County Zoning Administrator Faye Dubbelde testified.

The court also admitted a recording of a deposition of Dr. Ardevan Bakhtari, who is

the President and CEO of Scentroid and had reviewed and approved Mr.

Jitnikovitch’s report. The court found that Petitioners were aggrieved persons with

standing to challenge the 2020 Permit but denied the petition for writ of certiorari

on the merits, determining that the Board actions in approving the CUP were legal.

Following the denial of the writ, the Board and Intervenors filed motions requesting

the court to assess attorney fees against the Petitioners pursuant to SDCL 11-2-65.

The circuit court declined to award attorney fees.

[¶6.] Petitioners raise two issues on appeal:

1. Whether Petitioners’ procedural due process rights were
violated by the Board’s actions.

2. Whether the Board improperly granted the 2020 Permit
by failing to adhere to its Ordinance.

Intervenors and the Board seek review of two issues:

1. Whether Petitioners have standing to challenge the
Board’s actions.

2. Whether the circuit court abused its discretion by
declining to award attorney fees under SDCL 11-2-65.

Analysis and Decision

1. Petitioners’ standing.

[¶7.] Although Intervenors and the Board raise the issue of standing by

notice of review, we address this issue first because “litigant[s] must have standing

in order to bring a claim in court.” Powers I, 2020 S.D. 60, ¶ 13, 951 N.W.2d at 289–

90 (quoting Lippold v. Meade Cnty. Bd. of Comm’rs, 2018 S.D. 7, ¶ 18, 906 N.W.2d

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917, 922). And “[a]though standing is distinct from subject-matter jurisdiction, a

circuit court may not exercise its subject-matter jurisdiction unless the parties have

standing.” Id. (alteration in original) (quoting Lippold, 2018 S.D. 7, ¶ 18, 906

N.W.2d at 922). “Whether a party has standing to maintain an action is a question

of law reviewable by this Court de novo.” Pickerel Lake Outlet Ass’n v. Day Cnty.,

2020 S.D. 72, ¶ 7, 953 N.W.2d 82, 86 (quoting Howlett v. Stellingwerf, 2018 S.D. 19,

¶ 11, 908 N.W.2d 775, 779).

[¶8.] Intervenors argue Petitioners are not aggrieved parties under SDCL

11-2-1.1, which took effect in 2020. Intervenors claim that this statute codifies

heightened requirements to establish that a person is “aggrieved” by a decision of a

county board of adjustment and the circuit court erred in failing to dismiss the

petition for lack of standing. As a part of their standing argument, Intervenors also

contend that the circuit court erred in allowing Shaykett’s opinion into evidence.

Petitioners respond that the circuit court correctly determined they have standing

to challenge the 2020 Permit by writ of certiorari as their properties are uniquely

impacted because of their close proximity to the proposed CAFO.

[¶9.] While the Intervenors did not raise the evidentiary issue in their notice

of review, the circuit court was within its discretion in admitting and considering

Shaykett’s opinion for the issue of standing. We review evidentiary rulings for

abuse of discretion. Miles v. Spink Cnty. Bd. of Adjustment, 2022 S.D. 15, ¶ 24, 972

N.W.2d 136, 145 (citing Grant Cnty. Concerned Citizens v. Grant Cnty. Bd. of

Adjustment, 2015 S.D. 54, ¶ 40, 866 N.W.2d 149, 163). For expert testimony, this

Court adopted the test from Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.

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579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). In re Est. of Dokken, 2000 S.D. 9,

¶ 40, 604 N.W.2d 487, 498 (explaining that the Court in State v. Hofer, 512 N.W.2d

482, 484 (S.D. 1994) adopted the Daubert test). Daubert eliminated the

requirement of “general acceptance in the scientific community.” Id. (citing State v.

Moeller, 1996 S.D. 60, ¶ 52, 548 N.W.2d 465, 479). Thus, the circuit court “simply

[had to] determine ‘that [the] expert’s testimony both rest[ed] on a reliable

foundation and [was] relevant to the task at hand.’” Id. (quoting Moeller, 1996 S.D.

60, ¶ 52, 548 N.W.2d at 479). “The basis of an expert’s opinion is generally a matter

going to the weight of the testimony rather than the admissibility.” Id. ¶ 41, 604

N.W.2d at 499 (quoting State v. Spiry, 1996 S.D. 14, ¶ 16, 543 N.W.2d 260, 264).

[¶10.] Expert opinions concerning valuation questions are not formulaic, and

“[a]dmission of comparable sales rests largely within the discretion of the trial

court . . . .” City of Sioux Falls v. Kelley, 513 N.W.2d 97, 104 (S.D. 1994); see SDCL

19-19-702. In First Western Bank Wall v. Olsen, we held that one party “failed to

show that the circuit court abused its discretion” by accepting the other party’s

different valuation opinion. Olsen, 2001 S.D. 16, ¶ 10, 621 N.W.2d 611, 616. The

other party’s valuation opinion was not “unreliable or irrelevant” just because the

experts varied in the methods they emphasized. Id. Here, too, the circuit court

admitted Shaykett’s opinion, determining that its concerns with the speculative

nature of the opinion regarding value went to its weight, not its admissibility.

[¶11.] Having addressed the admissibility of Petitioners’ expert testimony on

the question of standing, we now return to whether the evidence supports the

circuit court’s determination that Petitioners are aggrieved persons. The statute

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authorizing a writ of certiorari challenge to a county board of adjustment decision

provides in relevant part that “[a]ny person . . . aggrieved by any decision of the

board of adjustment may present to a court of record a petition duly verified, setting

forth that the decision is illegal, in whole or in part, specifying the grounds of the

illegality.” SDCL 11-2-61. SDCL 11-2-1.1 defines a person aggrieved as:

any person directly interested in the outcome of and aggrieved
by a decision or action or failure to act pursuant to this chapter
who:
(1) Establishes that the person suffered an injury, an
invasion of a legally protected interest that is both
concrete and particularized, and actual or imminent, not
conjectural or hypothetical;
(2) Shows that a causal connection exists between the
person’s injury and the conduct of which the person
complains. The causal connection is satisfied if the injury
is fairly traceable to the challenged action, and not the
result of the independent action of any third party not
before the court;
(3) Shows it is likely, and not merely speculative, that the
injury will be redressed by a favorable decision, and;
(4) Shows that the injury is unique or different from those
injuries suffered by the public in general.

[¶12.] Prior to 2020, the Legislature had not defined “aggrieved persons” for

the purposes of SDCL chapter 11-2. The Board and Intervenors argue that the

adoption of SDCL 11-2-1.1 is significant because it increases the showing for

establishing aggrieved party status.

[¶13.] Contrary to the argument by the Board and Intervenors, SDCL 11-2-

1.1 functions to memorialize—rather than to modify—the existing law applicable to

establish “aggrieved person” status under SDCL chapter 11-2. This Court initially

adopted an aggrieved person test, from which SDCL 11-2-1.1 takes its language, for

actions by citizens against a public entity. See Benson v. State, 2006 S.D. 8, ¶ 22,

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710 N.W.2d 131, 141 (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61, 112 S.

Ct. 2130, 2136, 119 L. Ed. 2d 351 (1992)). We reaffirmed this standard in Cable v.

Union County Board of County Commissioners for persons aggrieved by a decision

of a county commission under SDCL 7-8-27. 2009 S.D. 59, ¶ 26, 769 N.W.2d 817,

827 (requiring a showing of injury, causation, redressability, and uniqueness and

explaining that the requirement that Petitioners show injuries affect them

individually and not merely as taxpayers in general dates back to the Dakota

Territorial era). In Powers I, we applied this aggrieved person standard for a

petitioner seeking a writ of certiorari under SDCL 11-2-61 for challenges to

decisions of a county board of adjustment. 2020 S.D. 60, ¶ 18, 951 N.W.2d at 292

(adopting the test from Cable and reaffirming that a petitioner must prove “a

unique and personal injury as opposed to a general taxpayer injury in order to

proceed”).

[¶14.] Nonetheless, the Board and Intervenors argue that Petitioners are not

persons aggrieved under SDCL 11-2-1.1 and highlight the circuit court’s finding

that “[i]n spite of [real estate agent] Mr. Shaykett’s experience and knowledge as an

appraiser, offering an opinion concerning the diminution in and value to a property

close to a proposed CAFO facility is very speculative.” (Emphasis added.) They cite

to the language of SDCL 11-2-1.1 requiring a showing that the injury is “actual or

imminent, not conjectural or hypothetical” and showing that “it is likely, and not

merely speculative, that the injury will be redressed by a favorable decision[.]”

[¶15.] The Board and Intervenors would have Petitioners prove their case on

the merits in order to be aggrieved parties. However, establishing standing does

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not require Petitioners to prove they will prevail on the merits. See Cable, 2009

S.D. 59, ¶¶ 22–24, 769 N.W.2d at 826–27. “[O]ne must not ‘confus[e] weakness on

the merits with absence of . . . standing.’” Ariz. State Legislature v. Ariz. Indep.

Redistricting Comm’n, 576 U.S. 787, 800, 135 S. Ct. 2652, 2663, 192 L. Ed. 2d 704

(2015) (second alteration in original) (quoting Davis v. United States, 564 U.S. 229,

249 n.10, 131 S. Ct. 2419, 2434 n.10, 180 L. Ed. 2d 285 (2011); see also Warth v.

Seldin, 422 U.S. 490, 500, 95 S. Ct. 2197, 2206, 45 L. Ed. 2d 343 (1975) (explaining

that standing “often turns on the nature and source of the claim asserted[,]” but “in

no way depends on the merits of the [claim]”).

[¶16.] We turn then to the four-part test under SDCL 11-2-1.1 for

establishing aggrieved person status to determine standing in this case. The first

prong requires a concrete and particularized injury. The circuit court received

expert testimony from Shaykett that because of the proximity of the proposed

CAFO to Urban-Reasonover’s home, her property would lose value. The circuit

court found Shaykett’s opinion of value to be “speculative” based on the lack of

comparable sales and Shaykett’s analogy to the effect of the odor from “open” sewer

lagoons on real estate sales to be unpersuasive as to valuation, but specifically

rejected the Daubert challenge to Shaykett’s valuation testimony. The admission of

this opinion testimony provided evidence to support Petitioners’ claim that their

property values would be diminished by the construction of the CAFO near their

properties. The court’s findings acknowledged Shaykett’s testimony “that the mere

presence of a hog facility of this nature can impact the perception of a prospective

buyer” and found it was “a legitimate concern.” The court also considered Urban-

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Reasonover’s testimony of the impact of the CAFO on her property values and

properly determined the Petitioners were competent to provide opinions of the

impact the CAFO would have on their property values. Urban-Reasonover’s

testimony was further supported by the testimony of Dr. Bakhtari concerning the

particular impact that odor would have on Petitioners because of the close proximity

of their properties to the CAFO.

[¶17.] Importantly, the court made no finding that Petitioners’ claims of

actual injury, for the purpose of standing, were speculative. Instead, the court

determined that “Petitioners have met their burden as to standing,” finding that

“these [P]etitioners have a personal, distinct, and potential injury that could come

about because of this proposed facility.” We agree and conclude that Petitioners

presented sufficient evidence to show a concrete and particularized injury from the

construction of the proposed CAFO in close proximity to their land.

[¶18.] The Board and Intervenors argue that Petitioners could not show an

actual injury because of the Right to Farm Covenant (Covenant) that runs with the

land in the A-1 Agricultural District of Turner County. It provides notice that

owners of the affected land “may be subject to inconvenience . . . includ[ing] . . .

odors . . . during any twenty-four hour period.” It continues “you should be

prepared to accept such inconveniences . . . . You are also notified that there is the

potential for agricultural or agricultural processing operations to expand.”

However, the Covenant applies only to new construction, and the Petitioners’

dwellings preexisted the 2018 and 2020 Permits. The Covenant does not diminish

their claim of actual injury for the purpose of establishing aggrieved party status.

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[¶19.] Second, as to causation, Dr. Bakhtari testified in his deposition that

AERMOD, a model using data on the topography and weather of the area to predict

the dispersal of the odor produced by the proposed CAFO, indicated the odor would

cause a nuisance to Petitioners’ properties on 72.4% of days. While the circuit court

observed that it appeared the Board found testimony from Intervenors’ odor expert,

Dr. Nicolai, more persuasive, the court noted that “Dr. Bakhtari is a qualified and

experienced expert in the field of odor detection and analysis” and that his analysis

was “impressive.” This evidence was sufficient to support Petitioners’ claims that a

causal relationship existed between odor from the CAFO and Petitioners’ injury in

the form of reduced property values due to the odor nuisance.

[¶20.] Third, the claimed injuries would no doubt be redressed by a favorable

decision on writ of certiorari overturning the 2020 Permit granted to Intervenors.

[¶21.] Finally, as we noted in Powers I, Urban-Reasonover provided evidence

that Petitioners’ injuries were different from those the general public might suffer

by testifying “that ‘[o]ther taxpayers in Turner County who live or own property

several miles from the proposed site will not experience any noxious odors or noise

from’ the CAFO.” 2020 S.D. 60, ¶ 20, 951 N.W.2d at 293 (alteration in original). At

trial, Dr. Bakhtari presented testimony concerning the particular injuries

Petitioners would sustain from odor emanating from the CAFO near their

properties. Therefore, Petitioners presented sufficient evidence to establish

standing to bring this proceeding under SDCL 11-2-65.

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2. Petitioners’ due process rights.

[¶22.] Petitioners argue their procedural due process rights were violated by

an unacceptable risk of actual bias. Specifically, they assert that the Board was

predisposed to grant the 2020 Permit after the Board had previously approved the

2018 Permit. Because the plans for the 2020 Permit were the same as those in the

2018 Permit being litigated, Petitioners reason that the Board could not deny the

2020 Permit without implicitly admitting it was wrong in 2018. Petitioners next

assert the Board improperly considered financial incentives tied to granting the

permit, namely that Intervenors might have been eligible for rebates through the

South Dakota Jobs Grant and Reinvestment Repayment Program, and that such

incentives were not among the exclusive criteria the Board was required to

consider. See Turner County, S.D., Ordinance §§ 13.09(E)(1)-(9) (2008) (including

the proposed CAFO’s plan for setback from homes, odor control, and any past

permit violations by the operator). Finally, Petitioners argue that although board

member Schmeichel did not vote, his appearance as an interested person at the

hearing could have influenced or appeared to influence the other board members.

[¶23.] Petitioners rely on Armstrong v. Turner County Board of Adjustment,

2009 S.D. 81, 772 N.W.2d 643, in support of their due process claims. Armstrong,

however, has been limited by our holdings in Holborn v. Deuel County Board of

Adjustment, 2021 S.D. 6, 955 N.W.2d 363, and Miles v. Spink County Board of

Adjustment, 2022 S.D. 15, 972 N.W.2d 136. In both Miles and Holborn, we applied

the due process standard to claims of bias against a board of adjustment. In Miles,

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we explained the significance of Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 129

S. Ct. 2252, 173 L. Ed. 2d 1208 (2009), and stated the standard as follows:

[T]he probability of bias is at an unconstitutional level when
there is “a serious risk of actual bias” that is “based on objective
and reasonable perceptions[.]” Caperton, 556 U.S. at 884, 129 S.
Ct. at 2263. This standard requires an objective inquiry into
whether the circumstances “offer[] a possible temptation to the
average . . . judge to . . . lead him [or her] not to hold the balance
nice, clear and true.” Id., 556 U.S. at 878, 129 S. Ct. at 2260
(citation omitted). As we stated in Holborn, “Caperton expanded
the reach of the Due Process Clause for fairness in judicial
proceedings” but “reaffirmed that the standard for
disqualification of a judicial officer is extremely high and should
only be applied in ‘extraordinary situation[s] where the
Constitution requires recusal.’” Holborn, 2021 S.D. 6, ¶ 27, 955
N.W.2d at 375–76 (quoting Caperton, 556 U.S. at 887, 129 S. Ct.
at 2265).

2022 S.D. 15, ¶ 36, 972 N.W.2d at 148–49 (second, fourth, and fifth alterations in

original).

[¶24.] Petitioners’ assertion that the Board violated their due process rights

by considering essentially the same application in 2020 that it considered in 2018 is

not supported by the standard set forth in Miles and Holborn. Petitioners have not

shown that the Board failed to consider the evidence or arguments presented by

Petitioners. 3 The Board heard the concerns personally shared by Petitioners at the

3. Petitioners cite the Board members’ admissions during depositions that they
did not read the expert reports that were provided to them in advance of the
hearing. However, at the hearing, Petitioners’ attorney summarized the
issues presented by their experts. The Board members testified that they
were aware of Petitioners’ odor concerns and the CAFO’s impact on
Petitioners, heard these concerns at the hearing, and did consider these
concerns before granting the CUP. In Adolph v. Grant County Board of
Adjustment, “[w]e question[ed] the propriety of deposing the decision maker
in a quasi-judicial proceeding. However, as the issue was not raised in [that]
appeal, we [left] its resolution for another day.” 2017 S.D. 5, ¶ 14 n.3, 891
(continued . . .)
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hearing as well as the evidence and arguments presented by counsel for both

parties before issuing a decision on the merits of the 2020 Permit. Petitioners ask

the Court to simply assume that the Board was biased because it had already

entered a favorable decision on the 2018 Permit application. Taken to its logical

conclusion, Petitioners’ argument that the Board was biased after having already

approved essentially the same prior CUP application would disqualify a quasi-

judicial decisionmaker from ever rehearing a matter previously considered and

determined, even in the absence of a showing of actual or “serious risk” of actual

bias.

[¶25.] Petitioners’ claims are also contrary to the extrajudicial source

doctrine recognized by this Court. “The extrajudicial source doctrine provides that,

to be disqualifying, trial court bias and prejudice must arise from ‘an extrajudicial

source.’” State v. List, 2009 S.D. 73, ¶ 13, 771 N.W.2d 644, 648 (quoting Liteky v.

United States, 510 U.S. 540, 544–45, 114 S. Ct. 1147, 1152, 127 L. Ed. 2d 474

(1994)). “[O]pinions formed by the judge on the basis of facts introduced or events

occurring in the course of the current proceedings, or of prior proceedings, do not

constitute a basis for a bias or partiality motion unless they display a deep-seated

favoritism or antagonism that would make fair judgment impossible.” Id.

(alteration in original) (quoting Liteky, 510 U.S. at 555, 114 S. Ct. at 1157). The

________________________
(. . . continued)
N.W.2d 377, 382 n.3. Here, likewise, we note our concern with this practice
but decline to resolve the issue. See also Miles, 2022 S.D. 15, ¶ 24 n.12, 972
N.W.2d at 145 n.12 (noting that “[w]hile deposing quasi-judicial board
members about their decision-making process is generally disfavored,” the
depositions at issue “focused primarily on the Board’s alleged biases or
conflicts of interest”).

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“passages from Liteky make clear that opinions held or formed by a judge in a case

that result from something the judge learned in prior judicial proceedings do not

alone establish judicial bias or prejudice.” Id. ¶ 14, 771 N.W.2d at 648.

[¶26.] Finally, the claims that the Board improperly considered financial

incentives tied to granting the 2020 Permit and the presence of Schmeichel at the

hearing before the Board also fail to establish actual bias or unacceptable risk of

actual bias by the Board. The Board’s awareness and mention of the county

financial incentives associated with the 2020 Permit during the hearing, without

more, do not support a claim for improper bias under the Due Process Clause.

Likewise, Schmeichel’s presence and membership on the Board do not support

Petitioners’ due process claims. Schmeichel did not vote, and there is no showing

that he attempted to improperly influence the Board’s decision at the hearing.

Schmeichel’s personal appearance at his own CUP application hearing is

insufficient. See Miles, 2022 S.D. 15, ¶ 42, 972 N.W.2d at 150 (noting that

relationships between board members and community members are inevitable in

rural populations and not sufficient on their own to establish actual bias or serious

risk thereof).

3. Grant of 2020 Permit.

[¶27.] “The review upon writ of certiorari cannot be extended further than to

determine whether the inferior court, tribunal, board, or officer, has regularly

pursued the authority of such court, tribunal, board, or officer.” SDCL 21-31-8.

“[T]he statute ‘limit[s] certiorari review “to whether the board of adjustment had

jurisdiction over the matter and whether it pursued in a regular manner the

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authority conferred upon it.”’” Ehlebracht v. Deuel Cnty. Plan. Comm’n, 2022 S.D.

18, ¶ 12, 972 N.W.2d 464, 470 (second alteration in original) (quoting Dunham v.

Lake Cnty. Comm’n, 2020 S.D. 23, ¶ 10, 943 N.W.2d 330, 333). “The test of

jurisdiction is whether there was power to enter upon the inquiry[.]” Id. (quoting

Lake Hendricks Imp. Ass’n v. Brookings Cnty. Plan. & Zoning Comm’n, 2016 S.D.

48, ¶ 26, 882 N.W.2d 307, 315). “With a writ of certiorari, we do not review whether

the [board’s] decision is right or wrong.” Id. ¶ 13, 972 N.W.2d at 470 (alteration in

original) (quoting Grant Cnty. Concerned Citizens, 2015 S.D. 54, ¶ 10, 866 N.W.2d

at 154). “Courts must not review the merits of a petition or evidence for the purpose

of determining the correctness of a finding, in the absence of a showing that the

Board ‘acted fraudulently or in arbitrary or willful disregard of undisputed and

indisputable proof.’” Id. (quoting Lamar Outdoor Advert. of S.D., Inc. v. City of

Rapid City, 2007 S.D. 35, ¶ 21, 731 N.W.2d 199, 205). “[W]e will sustain the lower

tribunal’s decision ‘unless it did some act forbidden by law or neglected to do some

act required by law.’” Id. (quoting Dunham, 2020 S.D. 23, ¶ 10, 943 N.W.2d at 333).

[¶28.] Petitioners argue the Board did not regularly pursue its authority

consistent with the requirements of the County Zoning Ordinance. In their view,

the proposed CAFO did not fit into any of the listed CAFO categories and needed to

be considered on a case-by-case basis to determine the appropriate setback.

Petitioners’ argument is based on Turner County, S.D., Ordinance § 13.09(D)

(2008), which allows case-by-case determinations when the animal types are not

listed in the table.

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[¶29.] The precise approach to categorizing the CAFO and calculating the

setback that Dubbelde employed and the Board adopted is unclear on the record.

The CAFO included a mix of swine comprised of 2,000 finisher swine and 5,400

sows with piglets that were weaned and moved to another facility after

approximately three weeks. By Petitioners’ own admission, this sow farrow-to-

wean operation did not clearly fall into any of the existing categories within

§ 13.09(D). Petitioners cite testimony by the Board members indicating that they

were not aware they had to make case-by-case determinations consistent with this

provision. Yet Petitioners fail to explain how the Board’s actions were inconsistent

with their discretion to make a case-by-case determination. The Petitioners have

not shown how the Board failed to follow the Ordinance or that it did not regularly

pursue its authority for considering the CUP.

[¶30.] Petitioners also allege that the Board members acted arbitrarily by not

verifying Dubbelde’s calculations and by relying on her expertise in considering the

Ordinance requirements. In Petitioners’ view, the Board’s reliance on Dubbelde to

calculate the setback is similar to, and more egregious than, Hines v. Board of

Adjustment of City of Miller, 2004 S.D. 13, 675 N.W.2d 231. In Hines, this Court

determined that a county planning and zoning board improperly declined to grant a

variance and “simply relinquished its decision to a vote of the neighbors.” 2004 S.D.

13, ¶ 13, 675 N.W.2d at 234. Petitioners argue that the Board improperly delegated

its authority to calculate the number of animal units and the appropriate setback to

Dubbelde and “abdicated its responsibility” because “Dubbelde’s calculation was not

a mere exercise in arithmetic” but instead “a judgment call[.]”

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[¶31.] Petitioners’ reliance on Hines is misplaced. Unlike in Hines, the

Petitioners have failed to show that the Board’s decision rested on an improper

basis, much less to the exclusion of relevant factors. In Miles, we clarified that the

board in Hines “exceeded its authority by denying a variance based solely on the

opinion of neighboring landowners. [W]e noted that the board, having dismissed

the list of concerns raised by the neighbors as irrelevant, ‘was left with only the

opinion of a few neighbors . . . .’” 2022 S.D. 15, ¶ 53 n.20, 972 N.W.2d at 153 n.20

(final emphasis added) (citations omitted).

[¶32.] Here, the Board did not abdicate its decision-making authority. It was

not improper for the Board to rely on staff support from Dubbelde to assist in

calculating the required setback. Even though the unique features of the CAFO

required Dubbelde to exercise some discretion in calculating the appropriate

setback under the Ordinance, she did so with the clear understanding that the

setback must comply with the Ordinance requirements. While Petitioners would

calculate the required setback differently, Petitioners have failed to establish that

calculations relied upon by the Board were in contravention of the applicable

Ordinance provisions. Further, unlike in Hines, Dubbelde’s calculations were not

the sole ground for the decision to grant the CUP, and the Board did not base its

decision on irrelevant concerns. Here, the Board considered a variety of pertinent

information concerning the CAFO, including its impact on neighboring property

owners. The Board’s findings aligned more with the evidence presented by

Intervenors, and Petitioners have not established that the Board acted arbitrarily

or in “willful disregard of undisputed and indisputable proof.” See Ehlebracht, 2022

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S.D. 18, ¶ 12, 972 N.W.2d at 470. Without evidence of illegal actions or failures to

act, we uphold the Board’s decision.

4. Attorney fees.

[¶33.] “In cases where attorney’s fees are statutorily authorized, the trial

court’s ruling is reviewed under an abuse of discretion standard.” Hoffman v. Olsen,

2003 S.D. 26, ¶ 7, 658 N.W.2d 790, 792.

[¶34.] The Board and Intervenors sought attorney fees under SDCL 11-2-65,

which provides that “[t]he court may reverse or affirm, wholly or partly, or may

modify the decision brought up for review. On motion, the court may award

reasonable attorneys’ fees and costs of the action in an action brought to the court

under this chapter against any non-prevailing party relative to the petition for writ

of certiorari.” (Emphasis added.) They argue that the circuit court abused its

discretion by declining to award attorney fees. But when the Legislature uses the

word “may,” fee awards are discretionary. Ctr. of Life Church v. Nelson, 2018 S.D.

42, ¶¶ 34, 38, 913 N.W.2d 105, 114, 115. Circuit courts have discretion under such

statutes not only in the amount of fees to award but in whether to award fees to the

prevailing party at all. Id. ¶ 40, 913 N.W.2d at 116.

[¶35.] In its order, the circuit court reasoned that “the issues in this case

were fairly debatable and non-frivolous” and that awarding attorney fees would not

serve the purpose of the statute allowing them. Nor did the circuit court find any

“remedial or deterrent purpose” for awarding attorney fees. The circuit court

explained its decision to deny attorney fees to the Board and the Intervenors and

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based its decision on relevant factors. See id. ¶ 41, 913 N.W.2d at 116. Therefore,

the court did not abuse its discretion by declining to award attorney fees.

[¶36.] Intervenors also submitted a motion for appellate attorney fees under

SDCL 15-26A-87.3 and 11-2-65. We decline to award appellate attorney fees.

[¶37.] We affirm.

[¶38.] KERN, SALTER, DEVANEY, and MYREN, Justices, concur.

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