SD farmer sues over lost opportunity because hog barn permit was denied

SD farmer sues over failed expansion

SIOUX FALLS, S.D. — A long-running legal tussle over a failed effort to build a hog barn east of Madison has moved to federal court, where a farmer argues civil rights violations because the county denied a building permit.

The case has twice been before a state judge and twice before the South Dakota Supreme Court, where rulings have gone against Lake County farmer Ben Elliott.

The lawsuit in U.S. District Court in Sioux Falls seeks unspecified damages in a jury trial. It does not seek a permit or permission to put up the hog confinement building, said Brian Donahue, the Sioux Falls attorney for Elliot.

“Unfortunately, that’s not an opportunity still available,” he said Monday.

“The lost profits and the lost value of the opportunity, which is usually measured by lost profits, would be one of the things we’d be seeking,” Donahue said.

Lake County, three former members of the county commission and the Board of Adjustment are named as defendants. They have until Feb. 18 to file their court answer to the lawsuit, filed in early January.

An attorney for the defendants, Jack Hieb of Aberdeen, said he had not thoroughly read the complaint and declined comment.

The lawsuit alleges that Elliott lost lawful use of his property because the delays and subsequent new restrictions on large livestock operations make the project unfeasible now and interfere with his property rights and civil rights.

In August 2001, Elliott sought a conditional use permit for a hog barn holding up to 1,250 sows to produce baby pigs. The county commission denied the permit after hearing from nearby lake residents who said the odor would devalue their property.

Elliott then reduced the size of the barn to 499 hogs and applied for a less-restrictive building permit.

With Elliott’s application pending, the county commission put a temporary moratorium on new or expanded livestock operations while it reviewed a comprehensive zoning plan and possible changes. It later rejected Elliott’s application after passing a new zoning plan with more stringent permits for hog confinement buildings.

Elliott sued the county in state court, arguing that he had met all requirements of the earlier building permit and should have been approved. The judge ruled that the new zoning requirements applied to the project.

On appeal, the state Supreme Court sent the case back to state court, where the judge decided he did not have jurisdiction and dismissed Elliott’s lawsuit. The Supreme Court later upheld the dismissal.