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Anderson v. Badger, Town of

ELR Citation: 39 ELR 20161
Nos. No. 2009-SD-61, (S.D., 07/15/2009)

The Supreme Court of South Dakota held that a town had the power to waive the distance requirements set forth in a county ordinance regulating the location of concentrated animal feeding operations (CAFOs). Several residents filed suit challenging the town's power to execute such a waiver. They argued that merely because the county's zoning ordinance gave the town the power to waive the distance requirements does not mean that the town had the legal authority to do so. They maintained that absent a grant of authority from the state legislature, the town cannot act under the county's zoning ordinance. But state law gives every municipality the power to contract in its corporate name. Here, the county enacted a zoning plan for the county, which includes the area within the city limits of the town. In this zoning plan is an ordinance that gives an incorporated community the right to waive certain distance restrictions for a CAFO. Because state law gives a municipality the power to contract, and the county ordinance gave the town the option to determine whether a waiver should be executed, the town had the authority to waive the distance requirements under the ordinance.

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