FILED FEB 18 2065 STATE OF SOUTH DAKOTA ) IN CIRCUIT COURT. COUNTY OF TURNER 5.7.) Sounty Glerk ef CourBIRST JUDICIAL CIRCUIT First Judicioi Circuit Court of SD FR eee EER RE EHH EEE EE EEK ERLE MARK JOFFER, LISA JOFFER, KATIE CW. 15- 16 OVERVAAG, BRYAN OVERVAAG, KATHERINE LUTTER, and STEVEN LUTTER, Plaintiffs vs. COMPLAINT TURNER COUNTY, SOUTH DAKOTA, TURNER COUNTY BOARD OF COMMISSIONERS, PETER SONSTEGARD, and SONSTEGARD FOODS COMPANY, Defendants. DADS RRR E RE EEE ES EERE EE EEE HE PI iffs, by and through their attorney Michael J. Schaffer, for their Complaint against the Defendants, state and allege as follows: 1, The Plaintiffs are residents, citizens and taxpayers in Turner County, South Dakota, 2. Tuer County is a duly organized county within the State of South Dakota. 3. The Turner County Board of Commissioners is the body that govems ‘Turner County and is authorized to adopt ordinances and amendments to ordinances for Turner County 4. Peter Sonstegard is listed as the applicant for a conditional use permit for 6,000,000 layer chickens and accompanying layer barns, manure sheds,processing facility and feed mill to be located on the southeast quarter of 7-99 N R-54 W Section 2 and the South half of the Northeast Quarter of T-99 N R-54 W Section 2 in Turner County. Sonstegard Foods Company is listed as the owner of the Concentrated Animal Feeding Operation (CAFO) on the application. A true and correct copy of the application for a conditional use permit which was received by the Zoning Administrator of Turner County on February 5, 2015, is attached hereto and incorporated herein by this reference as Exhibit 1. The Plaintiffs are all property owners within approximately one to three miles of the proposed Sonstegard chicken CAFO. The Plaintiffs as homeowners within Turner County will be damaged and their property values diminished if the conditional use permit submitted by Sonstegard is granted and approved. The 2008 Revised Zoning Ordinance for Turner County included the following definitional section for animal unit with various factors for animal species: 12, ANIMAL UNIT. A unit of measurement based on the amount of waste produced by the animal. For the purposes of this ordinance animal units (AU) shall be calculated according to the following chart. Animal units relate to inventory rather than annual production. Animal units are computed by multiplying the number of head of a particular animal times the corresponding animal unit equivalent. Other animal species equivalent which are not listed will be based on species’ waste production. ANIMAL SPECIES ANIMAL UNIT EQUIVALENT (AU/HEAD) Feeder or Slaughter Cattle 1010. Mature Dairy Cattle 14 Veal Calves os Finisher Swine (over 55 lbs.) 04 Nursery Swine (less than 55 Ibs.) On Farrow-to-Finish (sows) 37 ‘Swine Production Unit (sow: breeding, gestating and farrowing) 047 Horses 20 Sheep OL Turkeys: 0.018 Laying Hens and Broilers (continuous overflow watering) 001 Laying Hens and Broilers (separate Liquid handling system) 0.033 Di 02 See attached Exhibit 2, portions of 2008 Revised Zoning Ordinance for Tumer County. In July, 2014, the Zoning Administrator for Tumer County, caused to be published in legal newspapers within Turner County a Notice of Public Hearing which read in part as follows: NOTICE OF PUBLIC HEARING Pursuant to SDCL 11-2-18 no- tice is hereby given that the Turner County Planning Commission will hold a Public Hearing on August 5, 2014, regarding adoption of the re~ vised Tumer County Zoning Regula- tions. A copy of the proposed Tumer County Zoning Regulations is avail- able for public review at the Turner County Courthouse in the office of ‘The Zoning Administrator during regular business hours. This Planning Commission public hearing will be held at the fol- Jowing time, date and location 7:00 p.m. August 5, 201412, 13. Tumer County Courthouse (400 S. Main Street, Parker SD) ‘The purpose of this hearing is to explain the proposed revisions to the Turner County Zoning Regula- tions to interested persons, to answer questions regarding this item, and to hear public comment on this item ‘The Planning Commission invites all interested persons to attend and of - fer their comments. Those interested persons not able to attend are invited and encouraged to send written com- ments, prior to the hearing, to the ‘Turner County Zoning Administra. tor, PO Box 309, Parker, SD $7053. See Exhi it 3 attached. {tis unclear what, if anything by way of the proposed Turner County Zoning Ordinances were available at the Zoning Administrator's Office at the time of the first publication of the Notice on July 24, 2014, The Zoning Administrator provided to counsel for the Plaintiffs the document which she represented to be the proposed revisions to the Zoning Ordinance available in her office. The document is attached hereto and incorporated herein by this reference as Exhibit 4, Under South Dakota law, the Planning Commission for Turner County Was required to hold a public hearing on the zoning ordinance or any changes to it and then make a recommendation to the Board of County Commissioners with respect to the Zoning Ordinance or any revision or amendments to it. SDCL §11-2-18. On August 5, 2014, the Turner County Planning Commission met and approved the revised Zoning Regulations for Turner County, and4, submitted notice thereto by publication on August 21,2014, See Exhibit 5, the Affidavit of Publication which is attached hereto and incorporated herein by this reference. Thereafter, on or about August 28, 2014, the Tumer County Auditor caused to be published a Notice of Public Hearing which read in pertinent part as follows: NOTICE OF PUBLIC HEARING Pursuant to SDCL 11-2-19 no- tice is hereby given that the Tuer County Board of County Commissioners will hold a Public Hearing on Sept. 9, 2014, regarding adoption of the re- vised Tuer County Zoning Regula- tions. A copy of the proposed Turner County Zoning Regulations is avail abie for public review at the Turner County Courthouse in the office of Auditor during regular business hours. This Board of County Commis- sioners public hearing will be held at the following time, date and location, 10:30 a.m Sept.9, 2014 Turner County Courthouse (400 S. Main Street, Parker SD) ‘The purpose of this hearing is to explain the proposed revisions to ‘The Turner County Zoning Regula- tions to interested persons, to answer questions regarding this item, and to hear public comment on this item. ‘The Board of County Commissioners invites all interested persons to attend and offer their comments. Those interested persons not able to attend are invited and encouraged to send written ‘comments, prior to the hearing, to the ‘Tumer County Auditor, PO Box 370, Parker, SD 57053.it 6 which is attached hereto and incorporated herein by this reference On or about the date of the publication, believed to be August 28, 2014, and for some time thereafter, the proposed Turner County Zoning Regulations were not available for public view at the Turner County Courthouse. In fact, itis unclear whether they were ever available for review by the public at the County Auditor's Office prior to their adoption. On September 9, 2014, the Board of Commissioners of Turner County held the first reading on the Revised Zoning Ordinance #50-14 and voted without recor (© approv g the ayes and nays. Publication of that notice is attached hereto and incorporated herein by this reference as Exhibit 7. At the second reading of the 2014 Revised Zoning Regulations for Turner County, a fax with the name Sonstegard and the Sonstegard fax number (FAX)16053389765 at the top, showed up on the table of the County Commissioners at their meeting on September 23,2014, according to the Zoning Administrator. The Zoning Administrator placed the date in her own handwriting at the bottom of this fax as 9/23/14. A copy of the Sonstegard fax is attached hereto as Exhibit 8 and incorporated herein by this reference ‘The Sonstegard fax purports to be a copy of a portion of the Moody County Zoning Regulations, and it lists the chicken factor as .00319. 20. 21. 22. 2. 24. The chicken factor in the 2008 Tumer County Zoning Ordinance was 01 ‘The chicken factor in the proposed revision approved by the Turner County Planning Commission on August 5,2014, was also 01. The minutes of the County Commissioner meeting on September 23, 2014, indicate that the 2014 Revised Zoning Regulations for Turner County were adopted, again without a vote reflecting the ayes and nays, but with a notation that read as follows: Motion by Globke, seconded by Adamson, to approve the second reading & adoption of Ordinance #5-14 with the additions discussed. Motion carried. Emphasis added, See Exhibit 9, attached hereto and incorporated herein by this reference. ‘The additions discussed, according to the Zoning Administrator, were purportedly based on the Sonstegard fax which showed up for the first time at the Commissioners’ meeting on September 23,2014. ‘Thereafter, the County Commissioners caused to be published notice of adoption of the 2014 Revised Turner County Zoning Regulations, see Exhibit 10 attached hereto and incorporated herein by this reference. An individual by the name of Toby Brown, an employee of the ‘Southeastern Council of Governments (SECOG) was apparently responsible for drafting the Zoning Ordinance including the revisions. According to the Zoning Administrator the final version of 2014 Revised Zoning Ordinance for Turner County was not provided to Turner County until approximately November or December, 2014.25. _Inits final published version, the 2014 Revised Zoning Ordinance for ‘Turner County contained the following definition of an animal unit equivalence: 12, ANIMAL UNIT. A unit of measurement based on the amount of waste produced by the animal, For the purposes of this ordinance animal units (AU) shall be calculated according to the following chart, Animal units relate to inventory rather than annual production, Animal units are computed by multiplying the number of head of a particular animal times the corresponding animal unit equivalent, Other animal species equivalent which are not listed will be based on species’ waste production. ANIMAL SPECIES ANIMAL UNIT EQUIVALENT (AU/HEAD) Feeder or Slaughter Cattle 10 Cow/Calf Pair 12 Mature Dairy Cattle 14 Heifer 07 Dairy Calf 02 Finisher Swine (over 300 Ibs.) 04 Finisher Swine (55 to 300 Ibs.) 03 Nursery Swine (less than 55 tbs.) o1 Farrow-to-Finish (sows) 37 ‘Swine Production Unit (sows, breeding, gestating and farrowing) 047 Horses 20 Sheep and lambs oO. Turkeys (over 5 Ibs.) ork, Turkeys (under 5 Ibs.) 0.005 Laying Hens and Broilers (Continuous overflow watering in facility) 0.01 Laying Hens and Broilers (liquid Handling system in confinement facility) 0.033 Chicken over 5 {Ibs. (dry manure system) 0.005 Chicken under 5 tbs. (dry manure system) 0.003 Ducks 02 26. For the most part, the final published version of the ordinance adopted the numbers from the Sonstegard fax, and provided for a chicken factor of27. 28. 29, 30. 3 1008 for chickens under five pounds (dry manure system). See Exhibit 11, portions of the final version of the 2014 Revised Zoning Ordinance for ‘Turmer County, attached hereto and incorporated herein by this reference The chicken factor contained in the 2008 Zoning Ordinance and the draft of the 2014 revisions considered and approved by the Planning ‘Commission was 01. If the Sonstegard proposed chicken CAFO of 6,000,000 laying hens were considered under the 2008 or nice using a chicken factor of 01 (not even considering that the 2008 Zoning Ordinance equated 82 chickens per ‘one animal unit), the setback from dwellings would have to be 2.6 miles. The following calculations represent that setback distance based upon setback distances and animal unit equivalencies contained in the 2008 Ordinance. {6,000,000 x .01 = 60,000 Animal Units 3/8ths mile plus 100 feet x 118 (59,000 Animal Units divided by 500) = 11,800 fect. 1,980 feet (3/8ihs miles) + 11,800 feet = 13,780 feet divided by 5,280 = 2.6 miles Under the 2008 Zoning Regulations, the Sonstegard proposed chicken CAFO would have to be one mile plus 400 feet per each additional 1000 animal units from an incorporated municipality. See Exhibit 2, page 44. Under the 2008 Zoning Regulations, a 6,000,000 chicken CAFO such as the one proposed by Sonstegard would have to be 5.469 miles from an incorporated municipality such as the City of Parker. This is based on the following computation:32, 36. 6,000,000 x 01 = 60,000 Animal Units 1 mile plus 400 feet x 59 (59,000 animal units divided by 1,000) 23,600, 5,280 feet (1 mile) + 23,600 = 28,880 feet divided by 5,280 = 5.469 miles The proposed Sonstegard chicken CAFO is approximately one mile from a umber of dwellings who have not seen fit to waive the requirements of the ordinance and is approximately 2.5 miles from the City of Parker and approximately three miles from the City of Marion. The proposed Sonstegard CAFO could not meet the setback requirements under the old 2008 ordinance or under the draft of the 2014 Revised Zoning Ordinance w1 was considered by the Planning Commission and which also used a chicken factor of 01 ‘The only way that the proposed Sonstegard CAFO could meet the setback requirements for dwellings and incorporated municipalities is to use the chicken factor of 003, which showed up on the Sonstegard fax at the Tumer County Commi jioners meeting on September 23,2014, and which made its way into the final version of the 2014 Revised Zoning Ordinance for Turner County with the assistance of SECOG. Under the Revised Zoning Ordinances which contained a chicken factor of (003, the setback distance for dwellings now becomes 96 miles, instead of 2.6 miles. That based on the setback from dwellings, churches, schools, businesses, designated state or county parks of 1980 feet, plus 100 feet per additional 500 animal units over 2500 animal units. The computation for that is as follows: 1037. 38. 39. 6,000,000 x .003 = 18,000 Animal Units 1,980 feet plus 100 feet x 31 (15,500 divided by 500) 1,980 feet plus 3,100 feet = 5,080 feet 5,080 feet divided by 5.280 = .96 miles = 3,100 feet. Under the 2014 Revised Zoning Ordinance, assuming a chicken factor of (003, and with a setback from municipalities of 5280 feet plus 400 feet per each additional 1000 animal units over 2500 animal units, the setback tanee from municipalities is 2.174 miles, based on the following computation: 6,000,000 x .003 = 18,000 Animal Units 5,280 feet plus 400 feet x 15.5 (15,500 divided by 1,000) = 6200 feet. 5,280 fect plus 6,200 feet = 11 480 feet 11 480 feet divided by 5,280 = 2.174 miles ‘The Plaintiffs bring this action pursuant to SDCL Chapter 21-24, seeking a declaratory judgment, declaring that the 2014 Revised Turner County Zoning Ordinance enacted by the Turner County Commissioners is void, invalid, illegal, and unenforceable, due to the County’s faiture to comply with the statutory notice requirements, which provide the Plaintiffs and other residents of Tumer County their constitutional due process protection. The South Dakota Supreme Court has considered the due process concerns associated with zoning ordinances affecting property rights and has observed that: “Municipalities and other political subdivisions must scrupulously comply with statutory requirements, including notice and hearing, in order to provide due process of law. Ordinances which fail to u4. 42, 4B. comply with the state enabling statutes requiring notice and hearing are void.” Pennington County v. Moore, 525 N.W 2d 257, 259 (S.D. 1994) ‘The Tuner County Commission has no inherent authority to enact a zoning ordinance. Its authority to do so arises from statute. Save Centennial Valley Association, Inc., v. Schultz, 284 N.W 2d 452, 455 (S.D. 1979). ‘The South Dakota Legislature contemplated that due process of law requires notice and an opportunity for interested persons to be heard prior to adoption or change of any zoning ordinance. Dodds v. Bickel, 77 $.D. $4, 85 N.W.2d 284, 287 (1957). Failure to comply with the statutory requirements renders any zoning ordinances or amendments thereto invalid and illegal. Pennington County, supra, 525 N.W.2d at 259. In this case, it appears that the proposed revisions to the Turner County Zoning Ordinance were not available for inspection prior to the hearing by the Turner County Planning Commission, and therefore deprived the public of notice and an opportunity to review and be heard on the proposed revisions. Further, Plaintiffs allege that the proposed revisions to the 2014 Zoning Ordinance were not available for public inspection at the Auditor's Office when advertised in the legal newspaper, thus depriving the citizens of ‘Turnes County of notice and an opportunity to review and be heard 1245. 46. concerning the proposed revisions considered by the Turner County Commissioners in September, 2014, Further, Plaintiffs allege that the chicken factor contained on the ‘Sonstegard fax which showed up at the Commissioner's meeting on September 23, 2014, and changed the animal equivalence for chickens from 01 to 003, was never available for inspection in either the Planning and Zoning Administrator's Office when the Planning Commission considered the revisions to the ordinance, was never presented to the Planning Commission before it made its recommendation to the Turner County Commissioners, was never the subject of public notice, and was never available in the Auditor's Office for inspection prior to its consideration by the Tuer County Commissioners at its meeting on September 23,2014, ‘The final version of the 2014 Revised Zoning Ordinance for Tuner County, which changed the chicken factor to comport with the information on the Sonstegard fax, and which was apparently slipped into the Revised Ordinance before publication, is invalid, void, iMegal, and unenforceable, because it was never presented to the Turner County Planning Commission, and was adopted by the Turner County Commissioners at their meeting on September 23, 2014, in derogation of the requirements of SDCL §11-2-18 and 11-2-19 and the due process protections that should have been afforded to the Plaintiffs and the citizens of Turner County. 1B47, 48, 49, 50. 51 ‘The Sonstegards are named as a parties to this action, pursuant to SDCL §21-24-7 as individuals or persons who have an interest which may be affected by the declaration of the Court. Furthermore, this action is brought consistent with SDCL §21-24-14, to settle, afford relief from uncertainty and insecurity with respect to the rights, status, and other legal relations of the parties. Under the 2008 Revised Zoning Ordinance for Tumer County, the Proposed Sonstegard chicken CAFO would not meet any of the setback Tequirements with respect to the Plaintiffs and many others in Turner County. Even using the chicken factor of 01 considered by the Planning Commission in August, 2014, the proposed Sonstegard chicken CAFO would not meet the setback requirements with respect to the Plaintiffs and many others within Turner County. The only way that the proposed Sonstegard CAFO can meet the setback requirements is if Turner County considers the chicken factor of .003 that showed up in the Sonstegard fax at the Turner County Commission meeting on September 23,2014, and was subsequently included in the Zoning Ordinance. WHEREFORE, the Plaintiffs respectfully request that the Court enter a declaratory judgment, pursuant to SDCL Chapters 21-24, declaring that the Revised 2014 Zoning Ordinance for Turner County is void, invalid, and unenforceable because statutory and due process requirements were not followed.In addition, the Plaintiffs respectfully request that the Court enter a permanent injunction barring Tumer County, any of its employees, boards, or agents from enforcing ‘or using the Revised 2014 Zoning Ordinance for Turner County in considering any Conditional use permits, including the conditional use application submitted by Sonstegard. ‘The Plaintiffs further request that they be awarded their costs, disbursements, together with attorney's fees pursuant to 42 U.S.C. §1983 and 1988, because the actions of the Turner County Commissioners with respect to the adoption of the zoning, ordinance violated their due process rights for notice and an opportunity to be heard. Additionally, Plaintiffs request such additional relief as the Court may deem appropriate Dated this Dy of L chteecy 2015. SCHAFFER LAW OFFICE, PROF. LLC 412 West 9" Streét, Suite 1 Sioux Falls, SD 57104-3602 Telephone (605) 274-6760 Facsimile: (605) 274-6764 Attorneys for Plaintiffs 15