Ehlebracht v. Deuel Cnty. Pln. Comm'n and Crowned Ridge Wind II, LLC

#29352-a-MES
2022 S.D. 18

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

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GARRY EHLEBRACHT, STEVEN
GREBER, MARY GREBER, RICHARD
RALL, AMY RALL, and LARETTA KRANZ, Appellants,

v.

DEUEL COUNTY PLANNING
COMMISSION, sitting as DEUEL
COUNTY BOARD OF ADJUSTMENT, and
CROWNED RIDGE WIND II, LLC, Appellees,

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APPEAL FROM THE CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
DEUEL COUNTY, SOUTH DAKOTA

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THE HONORABLE DAWN M. ELSHERE
Judge

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A.J. SWANSON
Canton, South Dakota Attorney for appellants.

ZACHARY W. PETERSON
JACK HIEB of
Richardson, Wyly, Wise, Sauck,
& Hieb, LLP
Aberdeen, South Dakota Attorneys for appellee Deuel
County Board of Adjustment.

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CONSIDERED ON BRIEFS
NOVEMBER 16, 2020
OPINION FILED 03/23/22
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MILES F. SCHUMACHER
MICHAEL F. NADOLSKI
DANA VAN BEEK PALMER of
Lynn, Jackson, Shultz, & Lebrun, P.C.
Sioux Falls, South Dakota Attorneys for appellee Crowned
Ridge Wind II, LLC.
#29352

SALTER, Justice

[¶1.] Crowned Ridge Wind II, LLC (Crowned Ridge) applied for a special

exception permit (SEP) from the Deuel County Board of Adjustment (the Board) to

construct and operate a Wind Energy System (WES) in Deuel County. Following a

public hearing, the Board unanimously approved the permit. Several landowners in

Deuel County sought certiorari review in circuit court. The court upheld the

Board’s action. The landowners appeal. We affirm.

Facts and Procedural History

[¶2.] The Deuel County Board of County Commissioners adopted the Deuel

County Zoning Ordinance (the Ordinance) in 2004. The Ordinance created the

Deuel County Board of Adjustment and authorized it to hear and decide requests

for “special exceptions” from zoning standards, which the Ordinance defines as:

a use that would not be appropriate generally or without
restriction throughout the zoning division or district, but which,
if controlled as to number, area, location, or relation to the
neighborhood, would promote the public health, safety, welfare,
morals, order, comfort, convenience, appearance, prosperity, or
general welfare. Such uses may be permitted in a . . . zoning . . .
district as special exceptions, as specific provisions for such
exceptions are made in these zoning regulations. Special
exceptions are subject to evaluation and approval by the Board
of Adjustment and are administrative in nature.

[¶3.] Included in the Ordinance is Section 1215, which contains the relevant

provisions pertaining to WESs—a designation specifically recognized as an

appropriate land use in agricultural districts when constructed under the terms of

an SEP. The Ordinance requires that “[a]ll WESs shall meet or exceed standards

and regulations of the Federal Aviation Administration and South Dakota State

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Statutes and any other agency of federal or state government with the authority to

regulate WESs.”

[¶4.] The Ordinance also requires certain mitigating measures and specified

setbacks for the benefit of area residents and landowners who do not participate in

a WES. For example, wind turbines must be located a distance of “not less than

four times the height of the wind turbine” from non-participating residences and

businesses. The Ordinance also requires a distance of one mile from the nearest

residence located in the municipalities of Altamont, Astoria, Brandt, and Goodwin,

and one and one-half miles from the city limits of Gary, Toronto, and Clear Lake

(with certain exceptions). Additional requirements are included within the

Ordinance for lighting, turbine spacing, electric lines, decommissioning, site

restoration, height, and the appearance of the towers. The Ordinance further

provides that the noise level produced by the wind turbines “shall not exceed 45

dBA[1] . . . at the perimeter of existing residences, for non-participating residences”

and limits the “allowable shadow flicker[2] at existing residences to no more than 30

hours annually.”

[¶5.] On August 14, 2018, Crowned Ridge sought an SEP from the Board for

the construction and operation of a WES with up to 68 wind turbines to be built on

1. The term dBA stands for “A-weighted decibels.” It “is a unit for measuring
sound levels, approximately equal to the smallest difference in loudness
detectable by the human ear.” Atkinson v. City of Pierre, 2005 S.D. 114, ¶ 42
n.13, 706 N.W.2d 791, 802 n.13 (Sabers, J., dissenting).

2. Shadow flicker is the effect of the sun shining through the rotating blades of
a wind turbine, creating a moving shadow.

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land zoned for agricultural use. Crowned Ridge included with its application form a

participating property owner list, corresponding map, and a project overview, along

with “maps, plans, studies, reports, and analyses,” all required by the Ordinance.

The application also included a sound and shadow flicker study. The Board held a

public hearing on the SEP on September 20, 2018. Notice of the hearing was

published in the local newspaper and provided to the affected townships of

Goodwin, Rome, and Havana.

[¶6.] Garry Ehlebracht, Steven Greber, Mary Greber, Richard Rall, Amy

Rall, and Laretta Kranz (the Appellants) were each present at the September 20

hearing, and most of them spoke to voice objections to the proposed WES. One

Appellant expressed concerns about the noise limit and presented the Board with

his acoustic consultant’s concerns about the accuracy of Crowned Ridge’s sound

study. Another expressed unease with wind towers that might be located in areas

that include wetlands, culverts and drain tile works, questioning who would fix

drain tiling in the event it was damaged. Still another Appellant discussed “Wind

Turbine Syndrome” and how the noise from the wind turbines would disturb his two

Arabian horses. Other areas of concern included shadow flicker, less desirable

views, and the potential for diminished property value and stymied community

growth.

[¶7.] During the hearing, Board members asked Crowned Ridge

representatives several questions relating to the Appellants’ concerns. Board

members also engaged Crowned Ridge representatives on a variety of other topics

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relating to its SEP application, including promptness of handling complaints,

liability for ice falling or being thrown from turbine blades, setbacks, studies on the

effects of wind turbines on animal and human health, a bond requirement, aircraft

detection lighting systems, compensation and tax revenue to the county, and the

status of the permitting processes in other counties. The Board decided to postpone

its decision on Crowned Ridge’s SEP application until October 22, 2018.

[¶8.] The Appellants were again all present at the October 22 hearing when

Board members continued their inquiry, questioning Crowned Ridge

representatives on additional topics relating to the SEP application, such as the

impact of the WES on livestock and fences, liability concerns, service roads,

culverts, drain tile, buried electrical cable, and bridges. Also discussed were

potential future additions to the WES, protocols for damaged wind turbines and

damage to surrounding land, the locations of the wind turbine towers and possible

changes, a decommissioning bond, and whether noise from the turbines would meet

or exceed the decibel limit fixed by the Ordinance. At the conclusion of the hearing,

the Board voted unanimously to approve the SEP application. The Board’s

chairperson subsequently signed findings of fact.

[¶9.] The Appellants sought certiorari review of the Board’s approval. See

SDCL 11-2-61 (stating that “[a]ny person . . . aggrieved by any decision of the board

of adjustment may present to a court of record . . . a petition for writ of certiorari . . .

within thirty days after the filing of the decision in the office of the board of

adjustment”). In a 34-page petition filed with the circuit court, the Appellants

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focused primarily on concerns about the amount of shadow flicker that would be

observed on the property of non-participating landowners and noise incident to the

operation of the turbines.

[¶10.] Working within the narrow scope of certiorari review, the circuit court

upheld the Board’s decision to grant the SEP, concluding that the Board acted

within its jurisdiction and regularly pursued its authority. The court also noted in

its memorandum opinion that it could not “consider many of [the] issue[s] raised in

[the Appellants’] briefs” because most of their arguments implicated only their

“disagreement with South Dakota’s allowance of WESs, and the county’s ordinance

pertaining to WESs.” The court observed that the Appellants’ grievances in that

regard were “with the state and county legislative bodies.”

[¶11.] The Appellants now appeal the circuit court’s decision, raising many of

the same arguments addressed in their petition to the circuit court. Generally, the

Appellants argue that the Board acted illegally and without jurisdiction. They do

not, however, raise a facial attack on the validity of the Ordinance or its adoption;

nor do they allege any procedural irregularities in the Board’s consideration or

approval of the SEP. We restate the specific issues they have raised as follows:

1. Whether the Board’s decision complies with SDCL 11-2-
17.3.

2. Whether the Board’s decision results in a “de facto
easement.”

3. Whether the Board’s decision forecloses a future nuisance
remedy.

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4. Whether the Board’s decision violated substantive due
process.

Standard of Review

[¶12.] “The scope of judicial review in writ of certiorari proceedings is

statutorily determined by SDCL 21-31-8.” 3 Dunham v. Lake Cnty. Comm’n, 2020

S.D. 23, ¶ 10, 943 N.W.2d 330, 333. We recently held in Dunham that the 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 authority conferred

upon it.’” Id. (quoting Wedel v. Beadle Cnty. Comm’n, 2016 S.D. 59, ¶ 11, 884

N.W.2d 755, 758). “The test of jurisdiction is whether there was power to enter

upon the inquiry[.]” Lake Hendricks Imp. Ass’n v. Brookings Cnty. Planning and

Zoning Comm’n., 2016 S.D. 48, ¶ 26, 882 N.W.2d 307, 315 (citation omitted).

[¶13.] “With a writ of certiorari, we do not review whether the [board’s]

decision is right or wrong.” Grant Cnty. Concerned Citizens v. Grant Cnty. Bd. of

Adjustment, 2015 S.D. 54, ¶ 10, 866 N.W.2d 149, 154 (citation omitted). “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.’” Lamar Outdoor Advert. of South Dakota, Inc. v. City of Rapid City, 2007

3. The text of SDCL 21-31-8 provides:

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.

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S.D. 35, ¶ 21, 731 N.W.2d 199, 205 (quoting Cole v. Bd. of Adjustment of City of

Huron, 1999 S.D. 54, ¶ 10, 592 N.W.2d 175, 177); see also Dunham, 2020 S.D. 23, ¶

11, 943 N.W.2d at 334 (stating “[c]ertiorari cannot be used to examine evidence for

the purpose of determining the correctness of a finding”). Rather “[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.’” Dunham, 2020 S.D. 23, ¶ 10, 943 N.W.2d at 333

(citation omitted).

Analysis and Decision

The Board’s Jurisdiction

[¶14.] The Legislature has conferred upon counties the authority to enact

comprehensive zoning ordinances regulating the manner in which land is utilized.

See SDCL 11-2-13. 4 Within these zoning ordinances, counties may authorize

conditional uses of real property. 5 The Legislature has defined a conditional use as

“any use that, owing to certain special characteristics attendant to its operation,

4. The text of SDCL 11-2-13 provides:

For the purpose of promoting health, safety, or the general
welfare of the county the board may adopt a zoning ordinance to
regulate and restrict the height, number of stories, and size of
buildings and other structures, the percentage of lot that may be
occupied, the size of the yards, courts, and other open spaces,
the density of population, and the location and use of buildings,
structures, and land for trade, industry, residence, flood plain,
or other purposes.

5. Deuel County uses the term “special exception,” but we can see no
fundamental difference between a special exception and a conditional use,
and the parties have not suggested otherwise.

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may be permitted in a zoning district subject to the evaluation and approval by the

zoning authority . . . .” SDCL 11-2-17.4. “A conditional use is subject to

requirements that are different from the requirements imposed for any use

permitted by right in the zoning district.” Id.

[¶15.] When authorizing conditional uses of property, a county zoning

ordinance must “specify the approving authority, each category of conditional use

requiring such approval, the zoning districts in which a conditional use is available,

the criteria for evaluating each conditional use, and any procedures for clarifying

approval of certain conditional uses.” SDCL 11-2-17.3. Interpreting these statutes

is a question of law. In re Conditional Use Permit No. 13-08, 2014 S.D. 75, ¶ 8, 855

N.W.2d 836, 839.

[¶16.] Here, we conclude the Board had the “power to enter upon the inquiry”

of Crowned Ridge’s request for a special exception permit. Lake Hendricks, 2016

S.D. 48, ¶ 26, 882 N.W.2d at 315. Deuel County enacted the Ordinance in 2004

pursuant to SDCL 11-2-17.3, and the Ordinance complies with the requirements of

the statute. Deuel County has recognized a WES as a land use that is appropriate

in agriculturally zoned districts under certain conditions and has established

criteria to be used when considering the merits of a WES application. Further, the

Ordinance specifically empowers the Board to evaluate SEPs as the approving

authority. Under the circumstances, therefore, the Board had the necessary

jurisdiction because it possessed the statutory authority to do precisely what it

did—hear and determine Crowned Ridge’s application for an SEP.

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The Board’s Exercise of Authority

[¶17.] A Board’s decision will be sustained “unless it did some act forbidden

by law or neglected to do some act required by law.” Dunham, 2020 S.D. 23, ¶ 10,

943 N.W.2d at 333 (citation omitted). Here, the Board undertook a logical inquiry

to address the questions implicated by Crowned Ridge’s application for an SEP. It

considered the criteria for special exceptions set out in the Ordinance and

determined the merits of the application according to those standards. The Board’s

deliberative process included the entry of written findings of fact and followed the

presentation of evidence, data, oral statements, and relevant studies, much of which

specifically addressed the issues of whether the WES could meet the limitations for

noise and shadow flicker. The Board held two public hearings, which, from our

review of the record, seemed substantive and meaningful for all parties, and the

Board’s ultimate conclusion to grant the SEP was expressed in a unanimous vote of

its members.

[¶18.] These observations notwithstanding, the Appellants allege various

constitutional and state law violations that, they argue, render the Board’s decision

to grant the SEP unlawful and susceptible to challenge even under the narrow

strictures of our review. Crowned Ridge and the Board respond by claiming that

the majority of the arguments raised by the Appellants are simply not cognizable

under certiorari review. The circuit court concluded much the same, stating that

many of the Appellants’ arguments were more properly categorized as policy

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disagreements with the contents of the Ordinance itself and “not addressable

through a writ of certiorari.”

[¶19.] Nevertheless, where an appeal of the denial of a petition for a writ of

certiorari properly alleges an underlying illegality affecting the authority or

jurisdiction of the board, those claims are appropriately before us for review. See

Lake Hendricks, 2016 S.D. 48, ¶ 29, 882 N.W.2d at 316 (“Whether the Board had

jurisdiction to grant . . . a CUP depends on whether the County validly adopted an

ordinance pursuant to chapter 11-2 . . . .”) (emphasis omitted); see also Holborn v.

Deuel Cnty. Bd. of Adjustment, 2021 S.D. 6, ¶ 18, 955 N.W.2d 363, 372 (considering

the merits of petitioner’s due process claims on petition for writ of certiorari);

Armstrong v. Turner Cnty. Bd. of Adjustment, 2009 S.D. 81 ¶ 32, 772 N.W.2d 643,

654 (same). We will, therefore, examine the Appellants’ alleged constitutional and

state law violations, where they are sufficiently developed, because they relate to

the Board’s authority to grant the SEP to Crowned Ridge.

Requirements of SDCL 11-2-17.3 and the Comprehensive Plan

[¶20.] First, the Appellants claim that the Board did not regularly pursue its

authority because the SEP does not comply with SDCL 11-2-17.3, which states the

requirements for authorizing “a conditional use of real property . . . .” Under this

theory, the Appellants allege that because the wind turbines will produce noise and

shadow flicker affecting their homes, their properties are not simply impacted by

the WES but, rather, they are part of it. In their view, then, the Board lacked

authority to grant the SEP without their consent. Specifically, they allege that

Crowned Ridge “overtly intended that Appellants’ homes become part of that ‘real

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property’ (within the context of SDCL 11-2-17.3), and the Board overtly obliged

. . . .” (Emphasis omitted).

[¶21.] Assuming, without deciding, that this allegation does, in fact, implicate

the Board’s authority, it is unsustainable. Pursuant to the WES requirements in

the Ordinance, Crowned Ridge submitted a list of the participating property

owners, including a map of the property where the wind turbines would be built. As

non-participating landowners, the Appellants’ property was not included in the

application. In other words, Crowned Ridge did not seek to obtain a conditional use

permit for property on which they did not intend to build wind turbines. The

argument that an applicant must also seek a conditional use permit for neighboring

property any time activities related to the conditional use might affect that

neighboring property is unsupported by the statutory scheme governing conditional

use permits.

[¶22.] It is true that the various zoning regulations adopted by Deuel County,

the details of its comprehensive plan, and the decisions of its Board of Adjustment

have an impact on all the property owners in the county. See Schafer v. Deuel Cnty.

Bd. of Com’rs., 2006 S.D. 106, ¶ 12, 725 N.W.2d 241, 245 (“The ultimate purpose of

zoning ordinances is to confine certain classes of uses and structures to designated

areas, and thus bring about the physical development of the community.” (quoting

CJS Zoning and Land Planning § 3 (2005))). This much is reflected in the WES

requirements, which provide, among other things, limits and regulations on

setbacks, noise, and shadow flicker for non-participating landowners.

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[¶23.] However, it is equally true that nothing in SDCL 11-2-17.3 or the

Ordinance requires applicants to seek a conditional use permit for every tract of

land that may be affected by activities incident to the conditional use. The SEP

application process does contemplate opposition to applications and concerns of

adverse consequences to neighboring areas. In an effort to address these concerns,

the Board provides notice of the permit application and holds public meetings at

which members of the community may voice their support or opposition. These

procedures are designed to gather input from individuals who may have an interest

in the issuance of the permit, but whose ultimate approval is, strictly speaking, not

required. See Hines v. Bd. of Adjustment of City of Miller, 2004 S.D. 13, ¶ 15, 675

N.W.2d 231, 235 (“The ultimate determination of the public’s best interest is for the

legislative body, not a minority of neighboring property owners.” (citation omitted)).

The Appellants’ argument that Crowned Ridge was required to seek an SEP for

their property is therefore unavailing.

[¶24.] The Appellants similarly argue that the Board did not regularly

pursue its authority because the SEP does not comply with a different portion of

SDCL 11-2-17.3, which states in part, “The approving authority shall consider . . .

the objectives of the comprehensive plan . . . .” The Appellants claim that the plan’s

objectives do not include the SEP sought by Crowned Ridge because Deuel County’s

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Comprehensive Land Use Plan 6 makes no mention of the special exception process

or wind energy systems.

[¶25.] Again, we are not persuaded. In Schafer v. Deuel County Board of

Commissioners, we stated that comprehensive plans are “for the purpose of

protecting and guiding the physical, social, economic, and environmental

development of the county . . . .” 2006 S.D. 106, ¶ 14, 725 N.W.2d 241, 247 (quoting

SDCL 11-2-12). Counties can then adopt zoning ordinances to “implement [the]

long term comprehensive plan for future development.” Id. The Supreme Court of

Maine has provided a helpful explanation of the relationship between a

comprehensive plan and a land use ordinance:

The comprehensive plan and the land use ordinance are
complementary, but their purposes are different. The plan sets
out what is to be accomplished; the ordinance sets out concrete
standards to ensure that the plan’s objectives are realized . . . .
The ordinance is the translation of the comprehensive plan’s
goals into measurable requirements for applicants[.]

Nestle Waters N. Am., Inc. v. Town of Fryeburg, 967 A.2d 702, 709–10 (Me. 2009).

[¶26.] Here, the Ordinance provides specific guidelines and standards that

align with the goals of the comprehensive plan. The Ordinance requires that all

SEPs “promote the public health, safety, welfare, morals, order, comfort,

convenience, appearance, prosperity, or general welfare.” This language in the

6. The Deuel County Comprehensive Land Use Plan includes a set of policy
guidelines, which are designed to “provide guidance for decisions affecting the
use and development of land within the unincorporated areas of Deuel
County.” See also SDCL 11-2-12 (listing the purposes of a comprehensive
plan).

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Ordinance is consistent with the county’s comprehensive plan despite not being

specifically referenced. We are unable to discern anything unlawful or irregular

about the Board’s pursuit of its authority as it relates to the comprehensive plan.

“De Facto Easements”

[¶27.] The Appellants next allege that the Board’s action was unlawful

because granting the SEP amounted to a “de facto easement,” burdening the

Appellants’ property in favor of Crowned Ridge. They source their argument to

SDCL 43-13-2, which classifies certain interests in property as “easements.” The

statute provides, in relevant part:

The following land burdens or servitudes upon land may be
attached to other land as incidents or appurtenances, and are
called easements:

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(8) The right of receiving air, light, or heat from or over, or
discharging the same upon or over land;

[¶28.] As a corresponding requirement, SDCL 43-13-4 provides that “[a]

servitude can be created only by one who has a vested estate in the servient

tenement.” 7 The Appellants’ argument thus posits the following: (1) while the wind

turbines are operating (and the sun is in an optimal position) they “discharge” light

“in an objectionable form” onto the Appellants’ property in the form of shadow

7. This statute may lack some precision. While it may be true that only a
person with a vested estate in a servient tenement can expressly grant an
easement, as we state below, South Dakota recognizes several classes of
common law easements that are created by the actions of someone other than
the holder of the servient tenement. See infra at ¶ 30.

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flicker; (2) the right to discharge light is a class of easement that may be created

only by one with a vested interest in the servient tenement; and (3) by approving

the SEP, the Board has effectively granted a “de facto easement” for the right to

discharge light over the Appellants’ property in favor of Crowned Ridge, without the

Appellants’ permission. Several relevant observations bear upon the strength of the

Appellants’ argument in this regard.

[¶29.] First, the claim is factually unsupported because the Project will not

“discharge” light as contemplated by SDCL 43-13-2(8). 8 We have not previously

interpreted subsection eight of the statute, but its plain language does not support

the Appellants’ argument that the “adulterated light” resulting from the operation

of wind turbines constitutes a discharge of light. Wind turbines no more discharge

light by casting a shadow than does a grain silo or a multi-story office building. The

Appellants concede that the source of light is, of course, the sun. For this reason

alone, the Appellants’ argument on this point is unpersuasive.

[¶30.] Second, we have never recognized the idea of a “de facto easement.”

Generally, easements are expressly created by specific written agreements or by

operation of law. See Kokesh v. Running, 2002 S.D. 126, ¶ 12, 652 N.W.2d 790, 793

(citation omitted) (“Easements may be created by written grants, pursuant to a plat

or by force of law.”). Indeed, we have recognized the common-law concepts of

8. “[Q]uestions of statutory interpretation and application . . . ‘are questions of
law’ and reviewed ‘under the de novo standard with no deference afforded to
the circuit court’s decision.’” Schafer, 2006 S.D. 106, ¶ 5, 725 N.W.2d at 244
(quoting Lewis & Clark Rural Water Sys., Inc. v. Seeba, 2006 S.D. 7, ¶ 12, 709
N.W.2d 824, 830).

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implied easements and prescriptive easements. See Springer v. Cahoy, 2012 S.D.

32, ¶ 7, 814 N.W.2d 131, 133 (discussing implied easements); Thompson v. E.I.G.

Palace Mall, LLC, 2003 S.D. 12, ¶ 7, 657 N.W.2d 300, 304 (discussing prescriptive

easements). But these doctrines bear little resemblance to the Appellants’ claim

here, and, in fact, they do not allege that the Board’s actions implicate a recognized

common-law easement theory.

[¶31.] The California Court of Appeal has considered and rejected a similar

“de facto easement” argument in connection with a claim alleging that a municipal

ordinance violated state easement law. See Kucera v. Lizza, 69 Cal. Rptr. 2d 582,

591 (Cal. Ct. App. 1997). In Kucera, the court considered a claim by the owners of

an apartment complex that a city ordinance requiring them to remove trees that

obstructed a neighboring property owner’s view constituted a “de facto easement”

burdening their property in favor of the city, and, by extension, their neighbors.

Examining a section of California’s civil code that is identical to SDCL 43-13-2(8),

the court rejected the argument, stating:

Local governments regulate many aspects of property which
affect views and the receipt of light . . . . No case has ever
declared those [regulations] in conflict with state “easement”
law, and not surprisingly. The same Legislature which has
specified the way to create formal easements . . . has also
authorized local governments to adopt by ordinance a broad
range of regulation affecting views and sunlight . . . without
requiring compliance with the formal easement law.

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69 Cal. Rptr. 2d at 591. 9 We find this reasoning persuasive.

[¶32.] Even more compelling is the fact that the source of the Board’s

authority here is not derived from state easement law, but rather originates from

the police power, which allows local governments to enact zoning ordinances in

furtherance of “‘the public health, safety, morals and general welfare; peace and

order; and public comfort and convenience.’” Schafer, 2006 S.D. 106, ¶¶ 11–12, 725

N.W.2d at 245 (quoting McQuillin, The Law of Municipal Corporations, Zoning

§ 25.17 (3rd ed. 2005)). “Zoning, by its nature, restricts and regulates use of land

which would otherwise be lawful and proper.” Id. ¶ 11, 725 N.W.2d at 245

(emphasis added). In other words, the Board exercised its authority to restrict

Crowned Ridge from indiscriminately constructing wind turbines where they might

have otherwise wished to do so, and the Board’s efforts in this regard do not

implicate easement law.

[¶33.] Despite this, the Appellants claim that because Crowned Ridge entered

into “Effects Easements” 10 with neighboring landowners, the Board has allowed

Crowned Ridge, through the approval of the SEP, to encumber their property with

burdens identical to those imposed on landowners participating in the WES, but

9. This conclusion was drawn in response to the property owners’ argument that
California state easement law preempted the municipal ordinance at issue.

10. The term “Effects Easement” refers to a single section included in a larger
document entitled “Wind Farm Lease and Easement Agreement,” which
Crowned Ridge uses to memorialize its contractual relationships with
participating landowners. The section grants an easement to Crowned Ridge
for various effects generated by the operation of wind towers, including noise
and shadow flicker.

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without purchasing an easement. A central theme of the Appellants’ arguments on

this point is that Crowned Ridge should not be allowed to treat participating and

non-participating landowners differently. However, any disparity the Appellants

perceive overlooks the fact that participating and non-participating landowners are

not similarly situated.

[¶34.] Crowned Ridge’s lease agreement with participating landowners is 20

pages and, in addition to the Effects Easement, includes a multitude of other

easements and rights incident to the contractual relationship. These include the

right to actually construct and operate a wind turbine on a participating

landowner’s property or locate a turbine within what would otherwise be the

prohibited setback area required by the Ordinance. The agreement also allows

Crowned Ridge to exceed the regulatory limit for noise and shadow flicker on the

property of participating landowners, a contingency specifically proscribed by the

Ordinance.

[¶35.] Non-participating landowners, of course, are not obligated in the same

direct and conspicuous way. They are not bound by any recognized type of

easement. They can rely upon and enforce the restrictions governing the location of

a WES’s facilities and the regulatory limits of sound and shadow flicker,

notwithstanding the fact they may believe the restrictions are not sufficiently

rigorous.

[¶36.] In the end, the mere fact that Crowned Ridge entered into use

agreements with participating landowners does not mean that Crowned Ridge was

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required to reach similar agreements with non-participating landowners. Nor does

it suggest that the Board somehow compelled an easement from them without their

consent. Therefore, the Board did not exceed its authority on this basis.

Foreclosure of a Future Nuisance Remedy

[¶37.] Appellants further contend that the Board’s issuance of the SEP will

deprive them of the ability to assert a nuisance claim against Crowned Ridge in the

future. This argument is premised on the text of SDCL 21-10-2, which provides,

“Nothing which is done or maintained under the express authority of a statute can

be deemed a nuisance.” Appellants argue that so long as the operation of the wind

farm satisfies the Ordinance and SEP requirements, they will be precluded from

seeking nuisance relief in the event the noise and shadow flicker result in health

and safety risks because those effects have been sanctioned by the Ordinance and

the SEP.

[¶38.] The circuit court was not persuaded by this claim and distinguished

the private operation of Crowned Ridge’s wind farm from the types of public entities

generally considered exempt from nuisance suits under SDCL 21-10-2. See, e.g.,

Kuper v. Lincoln-Union Elec. Co., 1996 S.D. 145, ¶¶ 47, 51, 557 N.W.2d 748, 761–62

(holding that “[r]ural electric cooperatives[, which] are specifically authorized by

law” are exempt from nuisance claims under SDCL 21-10-2).

[¶39.] The circuit court’s conclusion aside, we decline to address the merits of

this argument because the Appellants do not specify how the potential application

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of SDCL 21-10-2 affected the Board’s authority or jurisdiction, and, therefore, it is

not a proper or justiciable claim for certiorari review.

Substantive Due Process

[¶40.] Finally, the Appellants argue that the Board’s issuance of the SEP

creates a substantive due process violation. However, as indicated above, the

Appellants do not facially challenge the constitutionality of the Ordinance. Rather,

the Appellants contend that, as applied, the Ordinance violates their rights to

substantive due process, claiming in their brief, “The [substantive due process]

violation asserted by Appellants is not the issuance of a [p]ermit for a wind farm

. . . . It is the issuance of one for this [p]roject.” (Emphasis omitted).

[¶41.] “It is well settled that the doctrine of substantive due process, does not

protect individuals from all [governmental] actions that infringe liberty or injure

property in violation of some law. Rather, substantive due process prevents

governmental power from being used for purposes of oppression, or abuse of

government power that shocks the conscience, or action that is legally irrational in

that it is not sufficiently keyed to any legitimate state interests.” Tri Cnty. Landfill

Ass’n, Inc. v. Brule Cnty., 2000 S.D. 148, ¶ 14, 619 N.W.2d 663, 668 (quoting PFZ

Properties, Inc. v. Rodriguez, 928 F.2d 28, 31–32 (1st Cir. 1991)) (internal quotation

marks omitted).

[¶42.] In substantive due process claims, “the plaintiff must allege something

more than that the government decision was arbitrary, capricious, or in violation of

state law.” Id. ¶ 17 (quoting Chesterfield Dev. Corp. v. City of Chesterfield, 963 F.2d

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1102 (8th Cir. 1992)). The “claims should be limited to ‘truly irrational’

governmental actions . . . . An example would be attempting to apply a zoning

ordinance only to persons whose names begin with a letter in the first half of the

alphabet.” Id.

[¶43.] Here, Deuel County’s Ordinance balances the interests of both the SEP

applicants and non-participating property owners. The Ordinance limits the

collateral effects of a WES on non-participating land by regulating the size, location,

number, noise, and shadow flicker of the turbines. While the Appellants may be

unsatisfied with these standards, the restrictions surely fall well short of the “truly

irrational” standard for substantive due process violations.

[¶44.] The Appellants offer what they describe as an additional due process

argument premised on the assumption that the Board’s issuance of the SEP results

in an uncompensated taking of their property. Although the Appellants have not

presented a fully-developed takings argument, they cite several United States

Supreme Court decisions to suggest that zoning regulations that deprive individuals

of the use and enjoyment of their property may violate due process.

[¶45.] While it is true that the Supreme Court, has, by its own admission,

“commingl[ed]” the doctrines of due process and takings, these substantive areas

involve discrete interests and inquiries. See Lingle v. Chevron U.S.A. Inc., 544 U.S.

528, 541, 125 S. Ct. 2074, 2083, 161 L. Ed. 2d 876 (2005). Determining whether the

ordinance in question runs afoul of due process must occur “prior to and [is] distinct

from the question whether a regulation effects a taking, for the Takings Clause

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presupposes that the government has acted in pursuit of a valid public purpose.”

544 U.S. at 543, 125 S. Ct. at 2084. As the Supreme Court has explained:

The [Takings] Clause expressly requires compensation where
government takes private property for public use. It does not
bar government from interfering with property rights, but
rather requires compensation in the event of otherwise proper
interference amounting to a taking. Conversely, if a government
action is found to be impermissible—for instance because it fails
to meet the “public use” requirement or is so arbitrary as to
violate due process—that is the end of the inquiry. No amount
of compensation can authorize such action.

Id. (cleaned up).

[¶46.] Here, however, the Appellants have not made a distinct and separate

takings claim, and their substantive due process claim would provide relief only if it

was meritorious, which, we have determined, it is not.

Conclusion

[¶47.] The Ordinance complied with the statutory requirements of SDCL 11-

2-17.3 and, therefore, the Board had jurisdiction to consider Crowned Ridge’s

application for an SEP. Furthermore, the Board acted within the requirements of

the Ordinance and SDCL chapter 11-2. The Board did not illegally grant an

easement over the Appellants’ property, nor did the Ordinance violate due process

as applied to the Appellants.

[¶48.] We affirm.

[¶49.] JENSEN, Chief Justice, and KERN and DEVANEY, Justices, and

GILBERTSON, Retired Chief Justice, concur.

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[¶50.] MYREN, Justice, not having been a member of the Court at the time

this action was submitted to the Court, did not participate.

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