Zimmer, Duncan & Cole

The Messy Business of Livestock Confinements

Livestock confinements often create contentious disagreements between producers and their neighbors.  And, it seems that county commissioners are always the ones stuck in the middle of those disputes. That’s what happened in this week’s state Supreme Court case, Grant County Concerned Citizens v. Grant County (2011 S.D. 5).

Like most counties, Grant County has a zoning ordinance that spells out how close a feedlot or livestock confinement can be to its neighbors.  The distance increases with the size of the operation.

Those zoning ordinances are subject to change, by a majority vote of the county commissioners.

In all counties, the citizens are allowed to propose changes for the commission to consider.  The process is similar to getting an initiative on the ballot.  A petition must be circulated and signed by 20 percent of the landowners in the zoning district.  Then, the proposed change is submitted to the county commission for a vote. 

If the county commission votes “yes”, opponents of the change can circulate their own petitions and put the issue to a county-wide vote.  However, if the county commission votes “no”, that is the end of the road.  The issue cannot be further submitted for a county-wide vote; and that was the question the Court resolved in the case it released this week.

In Grant County Concerned Citizens, the landowners and neighbors tried submitting an amendment to the county commission that would increase the minimum distance between new livestock operations and their neighbors.

However, the county commission voted “no” on the amendment, and left the ordinance the way it was.

The supporters of this amendment then tried to submit the amendment to a county-wide vote, via the referendum process.  (This is the county’s version of the process used last fall, when opponents of the Legislature’s smoking ban gathered signatures to put the issue to a state-wide vote.) 

The Court said this zoning issue could not be submitted for a county-wide vote. The Court reasoned that since the commission didn’t change the existing law, that was the end of the road.  In other words, if the law is left as it is, there was no change to the law which could be “referred” to the voters in a county-wide referendum.  

This result makes sense, although it confirms how difficult it is for county residents to change county ordinances by popular vote.  Within a city, and at the state level, the citizens have the power to circulate petitions and submit laws directly to a public vote.  However, this right does not exist at the county level.  

You can find the full opinion on the state Supreme Court website, at www.sdjudicial.com.

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It’s February, which means the Legislature is in full swing, and the primary topic of conversation is the budget.  One issue that was resolved this week was the budget for the Unified Judicial System.  This is the branch of the state government in charge of the funding for the clerks and judges. 

Chief Justice David Gilbertson is the officer in charge of managing this budget, and he agreed this week to the Governor’s proposed 10% cut. 

This comes at a difficult time for the court system, which is in the early stages of modernizing the filing system.  The shortfall in court funding will be made up by increased court fees. 

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On a sad note, last week marked the passing of two outstanding attorneys, Tom Foye from Rapid City, and his brother-in-law Jeremiah Murphy from Sioux Falls.  Both were graduates of the Georgetown Law Center.  Mr. Foye was considered the “Dean of Tax Law” in South Dakota, and Mr. Murphy served our State as lobbyist in Pierre for the last fifty-five years.  The legal profession will miss them both.

I had the privilege of living around the corner from Mr. Murphy, and I will miss hearing his wonderful stories and his quick wit.    

My sympathies go out to his family, and especially to his wife Mary Jean, who lost both a husband and a brother in the same week.

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Have a question about the law? Less Legalese, Please, explains recent court cases and answers your legal questions in plain English. Send an email to dan@zdclaw.com or a letter to “Less Legalese, Please,” 5000 S. Broadband Lane, Suite 107, Sioux Falls, SD 57108.  I will try to answer as many as I can with as little “legal-ese” as possible.

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Daniel K. Brendtro is a trial attorney from Sioux Falls. His firm, Zimmer, Duncan & Cole, LLP, has represented clients statewide since 1948 on all types of cases, including injuries, accidents, criminal defense, and business lawsuits.