Hanson v. Minnehaha Cnty.

#26859, #26879-a-DG
2014 S.D. 75IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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IN THE MATTER OF CONDITIONAL
USE PERMIT # 13-08,
DOUG HANSON and
LOUISE HANSON Petitioners and Appellants,
v.
MINNEHAHA COUNTY
COMMISSION, MINNEHAHA
COUNTY, SOUTH DAKOTA, Respondents and Appellees,
EASTERN FARMERS COOP, Intervenors and Appellees.
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APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
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THE HONORABLE ROBIN J. HOUWMAN
Judge
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RICK L. RAMSTAD of
Crew & Crew, PC
Sioux Falls, South Dakota Attorneys for petitioners and
appellants.
SARA E. SHOW
KERSTEN A. KAPPMEYER of
Minnehaha County State’s
Attorney’s Office
Sioux Falls, South Dakota Attorneys for respondents and
appellees.
****
ARGUED AUGUST 26, 2014
OPINION FILED 10/29/14
JASON W. SHANKS
JOHN H. BILLION of
May & Johnson, PC
Sioux Falls, South Dakota Attorneys for intervenors and
Appellees.
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GILBERTSON, Chief Justice
[¶1.] Appellants Doug and Louise Hanson appeal from a de novo circuit
court decision upholding the approval of a conditional use permit applied for by
Eastern Farmers Cooperative. On appeal to this Court, the Hansons assert that the
Minnehaha County Commission’s decision to uphold the approval of the permit was
arbitrary and capricious and that ex parte communications between a commissioner
and Eastern Farmers Cooperative violated the Hansons’ due process rights. We
affirm.
FACTS AND PROCEDURAL HISTORY
[¶2.] Eastern Farmers Cooperative (EFC) applied for a conditional use
permit to allow EFC to build and operate an agronomy facility on approximately 60
acres of land located a few miles north of Colton, South Dakota. The proposed
facility would store, distribute, and sell a variety of farm products, including
anhydrous ammonia. The subject land, as well as the neighboring land at issue in
this case, is zoned A-1 Agricultural.
[¶3.] The Minnehaha Planning Commission scheduled a hearing to review
EFC’s application. In preparation for the meeting, the Minnehaha County Planning
Director reviewed the application and visited the proposed site. He observed the
layout of the land and the proximity of homes and businesses to the proposed site,
including three farmsteads located within a half-mile of the site. The Planning
Director recommended approving the permit with ten conditions.
[¶4.] At the Planning Commission hearing, the Hansons and other area
residents appeared in order to oppose the conditional use permit. They voiced
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concerns about the dangers of chemical storage in close proximity to their
residences. The Hansons’ residence, located within the A-1 Agricultural zone, is
directly across a county road from the proposed facility. At the conclusion of the
hearing, the Planning Commission voted unanimously to approve the permit,
subject to the ten stated conditions. The Hansons appealed the decision of the
Planning Commission to the Minnehaha County Commission.
[¶5.] Prior to the appeal hearing, County Commissioner Dick Kelly called
the agronomy facility near Worthing, South Dakota, and requested a tour. During
the tour, which lasted about an hour, Commissioner Kelly viewed the interior and
exterior of the facility and received information on some of its safety features.
Although the Planning Director informed Commissioner Kelly that EFC owned the
Worthing facility, it is disputed whether Commissioner Kelly knew who operated
the plant at the time he arranged the tour.
[¶6.] The County Commission held a hearing on the appeal. Four members
of the County Commission were present, including Commissioner Kelly. One
commissioner was absent. At the appeal hearing, the Hansons and their attorneys
presented testimony and other evidence in opposition to the facility, including
plume analyses simulating an anhydrous ammonia spill. Other opponents of the
permit voiced their concerns about traffic and other safety and aesthetic concerns.
During the appeal hearing, Commissioner Kelly disclosed that he had toured the
Worthing facility and was impressed by the safety measures in place. Attorneys
and witnesses for EFC presented testimony about federal and state regulations
regarding storage of chemicals, evidence about EFC’s safety record, and safety
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features at other facilities. They also presented other information, including the
plant’s potential economic impact on the area. They presented surveys—also given
to neighbors—of EFC’s other facilities that described the extent of noise, dust,
traffic, and other conditions surrounding those facilities. At the conclusion of the
hearing, the commissioners present voted unanimously in favor of upholding the
Planning Commission’s decision to grant the permit to EFC.
[¶7.] Pursuant to SDCL 7-8-30, the Hansons sought de novo review of the
decision before the circuit court. The circuit court held a trial and heard evidence
from many of the same witnesses—including testimony from Commissioner Kelly
and the other commissioners about the impact Commissioner Kelly’s tour had on
their decision. The circuit court held that the Comprehensive Plan satisfied the
requirements of SDCL 11-2-17.3. The circuit court also found that Commissioner
Kelly’s tour of the Worthing Facility constituted ex parte communication that
disqualified his vote. However, the circuit court found no evidence of influence in
the other three votes and, therefore, left the decision intact, holding that the
Hansons remained in the same position that they would have been in had
Commissioner Kelly not voted.
STANDARD OF REVIEW
[¶8.] This Court reviews questions of law de novo, including the question of
whether the county ordinances at issue satisfy the statutory requirements of SDCL
11-2-17.3. See Smith v. Tripp Cnty., 2009 S.D. 26, ¶ 10, 765 N.W.2d 242, 246 (“The
interpretation of statutes and the application of statutes to given facts is a question
of law (or a mixed question of law and fact) that we review de novo.”). We review
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any factual findings of the circuit court for clear error. State v. Rolfe, 2014 S.D. 47,
¶ 14, 851 N.W.2d 897, 902.
ANALYSIS AND DECISION
[¶9.] The Hansons essentially claim the Planning and County Commissions
violated their right to due process of law in two ways. First, the Hansons allege the
Minnehaha County Zoning Ordinances (MCZO) do not provide adequate criteria
upon which to base a decision to grant a conditional use permit in this case.
Therefore, they argue, the Planning Commission’s decision to grant EFC a
conditional use permit was arbitrary and capricious and constitutes a violation of
the Hansons’ constitutional right to due process of law. Second, the Hansons allege
Commissioner Kelly conducted an ex parte investigation prior to the Hansons
appearing before the County Commission. The Hansons argue that Commissioner
Kelly’s subsequent participation in their appeal to the County Commission denied
them a fair and impartial hearing, violating the Hansons’ right to due process. We
disagree.
[¶10.] 1. Whether the Planning Commission’s grant of a conditional use
permit to EFC violated the Hansons’ right to due process.
[¶11.] “Although it is axiomatic that private property cannot be taken
without due process of law, this limitation does not shield private property from
regulations, such as zoning, which are implemented under the police power.”
Schafer v. Deuel Cnty. Bd. of Comm’rs, 2006 S.D. 106, ¶ 11, 725 N.W.2d 241, 245.
Accordingly, the South Dakota Legislature empowered individual counties to not
only enact their own zoning ordinances, but also to permit conditional uses of real
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property that might otherwise be contrary to those zoning ordinances. The
Legislature, however, required that such zoning ordinances contain evaluation
criteria for each conditional use.
A county zoning ordinance adopted pursuant to this chapter that
authorizes a conditional use of real property shall specify the
approving authority, each category of conditional use requiring
such approval, the zoning districts in which a conditional use is
available, and the criteria for evaluating each conditional use.
The approving authority shall consider the stated criteria, the
objectives of the comprehensive plan, and the purpose of the
zoning ordinance and its relevant zoning districts when making
a decision to approve or disapprove a conditional use request.
SDCL 11-2-17.3.
[¶12.] The conditional uses at issue in this case are “[a]griculturally related
operations involving the handling, storage and shipping of farm products[,]” MCZO
art. 3.04(X), and “[f]acilities for the storage and distribution of anhydrous
ammonia[,]” MCZO art. 3.04(BB). These conditional uses, as well as others listed in
MCZO art. 3.04, must be “obtained in conformance with the requirements of Article
19.00.” MCZO art. 3.04. Article 19.01 of the MCZO, in turn, requires the Planning
Commission to “impose such conditions as are appropriate and necessary to insure
compliance with the Comprehensive Plan and to protect the health, safety, and
general welfare in the issuance of such conditional use permit.” Thus, protecting
the health, safety, and general welfare are the first three general criteria upon
which the Planning Commission must evaluate any petition for conditional use.
Additionally, specific to agriculture-related businesses, the incorporated
Comprehensive Plan outlines “Land Use Location and Design Criteria” for the
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Planning Commission to evaluate conditional uses. Those criteria require
consideration of:
• Adjacent to county and state highways.
• Rail access for industrial uses.
• Controlled access onto major roadways.
• Adequate buffering from neighboring uses.
• Convenient siting of commercial uses for customers.
• Hard surfaced driveways and parking areas.
Therefore, the county ordinances delineate at least three criteria applicable to
evaluating every conditional use application and six additional criteria—
incorporated by reference from the Comprehensive Plan—for the Planning
Commission to evaluate the conditional use applied for in this case.
[¶13.] Even if the MCZO did not provide nine criteria applicable to this
conditional use, however, the Hansons’ constitutional argument still fails at an even
more fundamental level. We have previously said, “It is well settled that a zoning
law is afforded a presumption of constitutionality[.]” City of Brookings v. Winker,
1996 S.D. 129, ¶ 4, 554 N.W.2d 827, 828. Municipal zoning ordinances are afforded
this same presumption of constitutional validity. Parris v. City of Rapid City, 2013
S.D. 51, ¶ 17, 834 N.W.2d 850, 855 (citing Winker, 1996 S.D. 129, ¶ 4, 554 N.W.2d
at 829). To overcome this presumption, the challenging party “must show facts
supporting the claim the ordinance is arbitrary, capricious, and unconstitutional.”
Winker, 1996 S.D. 129, ¶ 4, 554 N.W.2d at 829 (citing Fortier v. City of Spearfish,
433 N.W.2d 228, 231 (S.D. 1988)). “Abstract considerations” are not sufficient to
demonstrate arbitrariness. Id. Rather, as both this Court and the United States
Supreme Court have held, an ordinance is arbitrary and unconstitutional when it
has “no substantial relation to the public health, safety, morals, or general welfare.”
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Vill. of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 395, 47 S. Ct. 114, 121, 71
L. Ed. 303 (1926), quoted in City of Eastlake v. Forest City Enters., 426 U.S. 668,
676, 96 S. Ct. 2358, 2363, 49 L. Ed. 2d 132 (1976); Schafer, 2006 S.D. 106, ¶ 12, 725
N.W.2d at 246 (quoting City of Eastlake, 426 U.S. at 676, 96 S. Ct. at 2363). In
effect, then, the Hansons ask us to decide whether an ordinance—requiring the
Planning Commission to protect the health, safety, and general welfare of the
public—is substantially related to protecting the health, safety, and general welfare
of the public. The question hardly survives its asking.
[¶14.] Further, the Hansons “fail[] to provide legal authority to support
[their] contention that [MCZO arts. 3.04 and 19.01 are] inherently arbitrary.” Cf.
Parris, 2013 S.D. 51, ¶ 18, 834 N.W.2d at 855. They do direct our attention to In re
Conditional Use Permit Denied to Meier, 2000 S.D. 80, 613 N.W.2d 523, and state
that this Court “wrote approvingly” of the more specific criteria used in that case.
The criteria set forth in Meier provided a “fixed rule or standard,” see Smith v.
Canton Sch. Dist. No. 41-1, 1999 S.D. 111, ¶ 9, 599 N.W.2d 637, 639-40, and would
have satisfied an obligation under SDCL 11-2-17.3 to “specify . . . criteria for
evaluating each conditional use.” However, the “specific standards” used in Meier
were guided by a stricter law that has since been repealed. Prior to 2004, SDCL 11-
2-17.2 required counties to establish “standards and criteria” that were to include
“requirements specific to each use.” SDCL 11-2-17.2 (2003) (repealed by 2004 S.D.
Sess. Laws ch. 101, § 8). In contrast, SDCL 11-2-17.3 requires only “criteria for
evaluating each conditional use.” Thus, even if we held that stricter standards were
preferable, we cannot conclude that they are constitutionally or statutorily required.
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[¶15.] The Hansons’ reliance on this Court’s decision in Kirschenman v.
Hutchinson County Board of Commissioners, 2003 S.D. 4, 656 N.W.2d 330,
overruled by Bechen v. Moody Cnty. Bd. of Comm’rs, 2005 S.D. 93, 703 N.W.2d 662,
is equally misplaced. In Kirschenman, we did not review the constitutionality of a
zoning ordinance. Instead, we were faced with determining whether Hutchinson
County’s Board of Commissioners acted in a legislative or an administrative
capacity in granting a conditional use permit for a hog confinement facility. We
applied a “liberal rule of construction to permit citizens to exercise their powers of
referendum.” Id. ¶ 7, 656 N.W.2d at 333. Because the ordinance’s complete lack of
standards or conditions meant it was only “an open-ended statement that the Board
is allowed to grant or deny a use permit[,]” we concluded that the Board’s approval
of the conditional use was a legislative action subject to referendum. Id. ¶ 9, 656
N.W.2d at 334. Thus, our commentary in Kirschenman related only to the
sufficiency of conditional use standards in the context of whether or not the
approval of a conditional use was subject to referendum and had nothing to do with
whether the conditional use ordinance provided an adequate basis for the Board to
constitutionally approve a conditional use. 1 Even if Kirschenman could be read as
the Hansons suggest, it was also decided prior to 2004 and would be susceptible to
the same criticism as the Hansons’ reliance on Meier, above.
1. The implication of Kirschenman and our decision in the present case is that a
conditional use could conceivably be simultaneously quasi-judicial for
purposes of determining its constitutionality and quasi-legislative for
purposes of being subject to referendum. We do not decide here whether the
general criteria of MCZO art. 19.01 are sufficient to immunize that ordinance
from referendum.
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[¶16.] We therefore conclude that the Planning Commission’s reliance on the
criteria stated in MCZO arts. 3.04 and 19.01, in granting EFC’s conditional use
request, was not arbitrary and capricious and did not violate the Hansons’ right to
due process.
[¶17.] 2. Whether Commissioner Kelly’s participation in the County
Commission’s review of the Planning Commission’s approval of
the conditional use permit violated the Hansons’ right to due
process.
[¶18.] The Hansons argue that Commissioner Kelly’s participation in the
appeal to the County Commission deprived them of due process. The Hansons
contend that the circuit court was correct in determining that Commissioner Kelly
should have recused himself from the proceedings because he appeared to be
predisposed to the outcome. 2 However, the Hansons claim that the circuit court
erred in its determination that invalidating Commissioner Kelly’s vote—but
otherwise letting the decision of the County Commission stand—was a sufficient
remedy. We do not address whether Commissioner Kelly’s actions should have
disqualified him from participating because we affirm, regardless.
[¶19.] A “fair trial in a fair tribunal is a basic requirement of due process
which is applicable to administrative agencies.” Nw. Bell Tel. Co. v. Stofferahn, 461
N.W.2d 129, 132 (S.D. 1990) (citing Strain v. Rapid City Sch. Bd., 447 N.W.2d 332,
336 (S.D. 1989)). The test for disqualifying an administrative official is different for
quasi-legislative and quasi-judicial administrative actions. See id. at 133-34. We
have stated that “a local zoning board’s decision to grant or deny a conditional use
2. The Appellees and Intervenors assert by way of notice of review that
Commissioner Kelly’s vote should not have been disqualified.
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permit is quasi-judicial and subject to due process constraints.” Armstrong v.
Turner Cnty. Bd. of Adjustment, 2009 S.D. 81, ¶ 19, 772 N.W.2d 643, 650-51. See
also Stofferahn, 461 N.W.2d at 133 (internal quotation marks omitted)
(“Administrative action is [a]djudicatory in character if it is particular and
immediate, rather than, as is the case of legislative or rule making action, general
and future in effect.”). Thus, “the test we have applied in determining whether an
applicant received a fair and impartial hearing is whether there was actual bias or
an unacceptable risk of actual bias.” Hanig v. City of Winner, 2005 S.D. 10, ¶ 11,
692 N.W.2d 202, 206. “If the circumstances show a likely capacity to tempt the
official to depart from his duty, then the risk of actual bias is unacceptable and the
conflict of interest is sufficient to disqualify the official.” Id. ¶ 15, 692 N.W.2d at
207. “When a due process violation exists because of a board member’s
disqualifying interest, the remedy is to ‘place the complainant in the same position
had the lack of due process not occurred.’” Armstrong, 2009 S.D. 81, ¶ 32, 772
N.W.2d at 654 (quoting Hanig, 2005 S.D. 10, ¶ 22, 692 N.W.2d at 210).
[¶20.] Primarily relying on Armstrong, the Hansons argue that the only way
to restore them to “the same position” is to grant them a new hearing and to “begin
anew.” The Hansons misinterpret the significance of Armstrong. In Armstrong, the
Turner County Board of Adjustment granted an elevator cooperative a conditional
use permit to construct a commercial grain storage facility. Id. ¶ 7, 772 N.W.2d at
646-47. A member of the Board of Adjustment, Van Hove, was also a county
commissioner. In his role as county commissioner, Van Hove had previously
become “deeply involved” in a conflict between the elevator and local residents
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opposing the conditional use permit. Id. ¶ 31, 772 N.W.2d at 654. Out of concern
that a building permit erroneously granted by the county would lead to liability for
the county, Commissioner Van Hove attempted to get the parties to negotiate. Id.This interest and ex parte communication was not disclosed until after the hearing
on the conditional use permit. Id. On appeal, this Court concluded that
Commissioner Van Hove’s position as the only county commissioner on the Board of
Adjustment carried weight with the other board members. Id. ¶ 32, 772 N.W.2d at
654. We vacated the permit, granted a new hearing, and disqualified Commissioner
Van Hove. Id.[¶21.] Armstrong in no way suggests that every disqualification of an official
should result in a new hearing. Rather, Armstrong held that a board member’s
conflicting interest—a subset of all the reasons for disqualification—is sufficient to
raise an unacceptable risk of bias requiring a new hearing. However,
disqualification for a reason other than having a conflict of interest is not
necessarily sufficient to warrant a new hearing. “If an official reflects subjective
partiality, this does not mean a proceeding conducted in good faith is necessarily
invalidated.” Stofferahn, 461 N.W.2d at 133 (citing Lead Indus. Ass’n v. EPA, 647
F.2d 1130 (D.C. Cir. 1980)). To assert otherwise expands the holding of Armstrong
well beyond its intended limits. In the present case, the Hansons’ due process claim
is not based on any assertion that Commissioner Kelly had a conflicting interest
that would prevent him from objectively hearing their appeal. Instead, their claim
is premised on the conclusion that Commissioner Kelly’s pre-hearing investigation
and ex parte communication with EFC created a bias in his own mind that was
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potentially spread to the rest of the County Commission. Because there is no
assertion of a conflict of interest—i.e., a personal interest in the outcome—let alone
evidence of one, Armstrong does not require us to automatically order a new hearing
in this case. Rather, we must examine the apparent effect Commissioner Kelly had
on the remaining three members of the County Commission.
[¶22.] In support of their requested remedy, the Hansons argue that “it can
be readily inferred that [Commissioner] Kelly’s opinions regarding the supposed
safety of the Worthing plant influenced the votes of other commissioners” and that
“[b]ecause of [Commissioner] Kelly’s intended influence on the other votes, the
entirety of the vote is suspect and the conditional use permit should be vacated.”
However, “[a]dministrative officials are presumed to be objective and capable of
judging controversies fairly on the basis of their own circumstances.” Stofferahn,
461 N.W.2d at 133 (citing United States v. Morgan, 313 U.S. 409, 421, 61 S. Ct. 999,
1004, 85 L. Ed. 1429 (1941)). This presumption of objectiveness bars the Hansons’
inference that the other commissioners were necessarily influenced. In determining
whether the other commissioners should have also been disqualified, Commissioner
Kelly’s intent to influence—if there was one—is relevant only to the extent that it
actually manifested and either created real bias or an unacceptable risk of bias.
Even assuming that Commissioner Kelly’s vote should be disqualified, a majority of
the County Commission still voted to uphold the Planning Commission’s decision.
Thus, the Hansons must actually show that either Commissioner Kelly’s actions
were sufficient to taint the entire proceeding or that one or more of the remaining
commissioners should also be disqualified individually.
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[¶23.] The Hansons have not met their burden. We give deference to the
circuit court’s factual finding that there was no evidence that the other
commissioners relied on, or even considered, Commissioner Kelly’s statements when
casting their votes. 3 For their part, the Hansons do not point to any specific
“opinions” Commissioner Kelly shared before the County Commission that were not
directly addressed by witness testimony at the hearing. Instead, most of the
evidence against allowing Commissioner Kelly’s participation in the appeal cites his
statements at the circuit court stage, where he explained the potential effect the
tour had on his decision to vote in favor of the application. Commissioner Kelly did
comment at the County Commission meeting that he had toured the Worthing
facility and was “impressed with” the safety measures in place at Worthing and also
stated that he thought the chance of a spill was getting “less and less” from what he
observed at the facility. However, witnesses for EFC presented information on the
3. Deference aside, we see nothing in the transcript of the appeal before the
County Commission to suggest that Commissioners Barth or Pekas, or
Chairman Beninga, were influenced by Commissioner Kelly’s comments.
Commissioner Barth clearly supported the conditional use prior to
Commissioner Kelly’s tour of the Worthing plant, as Commissioner Barth
first voted to approve the conditional use while sitting on the Planning
Commission. During the appeal to the County Commission, Commissioner
Barth noted the danger inherent to anhydrous ammonia, but recognized the
need to locate the facility in reasonable proximity to supporting
infrastructure. Regarding EFC’s proposed site, Commissioner Barth asked,
“If not there, then where?” Commissioner Pekas, although stating a serious
concern for the children located in the area, seemed to echo Commissioner
Barth’s view. Chairman Beninga’s vote in favor of the conditional use
likewise appears to have been primarily motivated by the potential for
economic development. His statements on the record evince a confidence that
the concerns expressed by the opponents of the conditional use would largely
be mitigated by the ten stipulations that the Planning Commission attached
to the conditional use permit.
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specific safety standards and equipment used at EFC facilities, inspections,
frequency of spills and accidents, and descriptions of the Worthing facility with
comments from its neighbors. The other commissioners were able to weigh this
information on their own, and the Hansons had an opportunity to offer counter-
evidence.
[¶24.] After reviewing the transcript of the hearing, we conclude that the
circuit court did not clearly err in finding that all of Commissioner Kelly’s
statements were otherwise supported by evidence in the record and testimony
presented at the hearing, or that the other commissioners were not influenced by
Commissioner Kelly’s actions. Because the County Commission was comprised only
of other county commissioners—colleagues of equal station to Commissioner Kelly—
there is no unacceptable risk that his opinion carried disproportionate weight, as
was our concern regarding Commissioner Van Hove in Armstrong. 2009 S.D. 81, ¶
32, 772 N.W.2d at 654. In the absence of Commissioner Kelly’s vote, the County
Commission’s decision still commands a majority of that body. Even if
Commissioner Kelly formed some bias against the Hansons as a result of his pre-
appeal activities, he did not have a conflicting interest in the outcome of the
proceeding. Therefore, we conclude that Commissioner Kelly’s opinions did not
affect the outcome of the proceeding, and we agree with the circuit court that
invalidating Commissioner Kelly’s vote placed the Hansons in the same position
they would have been in had Commissioner Kelly not participated in the hearing.
[¶25.] The Hansons also argue that without Commissioner Kelly’s vote, the
remaining three votes fail to carry the two-thirds majority vote required by SDCL
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11-2-59. The Hansons’ reliance on this statute is misplaced. SDCL 11-2-59
provides:
The concurring vote of two-thirds of the members of the board of
adjustment is necessary to reverse any order, requirement,
decision, or determination of any such administrative official, or
to decide in favor of the applicant on any matter upon which it is
required to pass under any such ordinance, or to effect any
variation in the ordinance.
First, this statute applies to “the board of adjustment[.]” The vote challenged by the
Hansons was not taken by a board of adjustment, but rather by the County
Commission. The Appellees correctly note that SDCL 11-2-60 may apply when a
board of county commissioners is exercising the powers of a board of adjustment 4—
but that factual scenario is not present in this case. Although boards of adjustment
are generally given the power to grant variances, South Dakota law does not
require board of adjustment action to approve conditional use permits. 5 See SDCL
11-2-53 (granting a board of adjustment power to hear and decide appeals and
4. SDCL 11-2-60 provides:
In lieu of appointing the board of adjustment provided by § 11-2-
49, the board of county commissioners having adopted and in
effect a zoning ordinance may act as and perform all the duties
and exercise the powers of the board of adjustment. The chair of
the board of county commissioners is chair of the board of
adjustment as so composed. The concurring vote of at least two-
thirds of the members of the board as so composed is necessary
to reverse any order, requirement, decision, or determination of
any administrative official, or to decide in favor of the appellant
on any matter upon which it is required to pass under any
zoning ordinance, or to effect any variation in the ordinance.
5. “In 2004, the Legislature removed the provision in the law that gave a county
board of adjustment the authority to approve conditional use permits. In its
place, the Legislature passed a new law giving the power to the county to
designate the entity responsible for approving conditional use permits.”
Armstrong, 2009 S.D. 81, ¶ 10, 772 N.W.2d at 647.
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authorize variances); SDCL 11-2-17.3 (requiring county ordinances to “specify the
approving authority” for conditional uses). The Hansons fail to point to authority
designating the act of upholding the approval of a conditional use permit as a power
unique to a board of adjustment. Because the challenged vote was taken by the
County Commission, and the County Commission was not exercising the powers of
a board of adjustment, SDCL 11-2-59 and SDCL 11-2-60 do not apply. See also
Goos RV Ctr. v. Minnehaha Cnty. Comm’n, 2009 S.D. 24, ¶¶ 18-21, 764 N.W.2d 704,
710-11.
[¶26.] Moreover, even if the County Commission were acting as a board of
adjustment in this case, a two-thirds majority vote is only required to “reverse any
order, requirement, decision, or determination of any administrative official, or to
decide in favor of the appellant[.]” SDCL 11-2-60 (emphasis added). Here, the
County Commission was upholding a decision of the Planning Committee and
deciding against the Hansons, the appellants. The action therefore did not require
a two-thirds majority. For these reasons, the circuit court did not err when it held
that only the simple majority vote of the County Commission was needed to uphold
the Planning Commission’s decision. See SDCL 7-8-18.
CONCLUSION
[¶27.] We conclude that the Minnehaha County Zoning Ordinances set forth
criteria for evaluating the conditional use application in this case such that the
Planning Commission’s reliance on those standards did not produce an arbitrary
and capricious decision in violation of the Hansons’ due process rights.
Furthermore, we conclude that invalidating Commissioner Kelly’s vote was a
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sufficient remedy to cure any alleged due process concerns arising out of his
participation in the County Commission’s action. We therefore affirm.
[¶28.] KONENKAMP, ZINTER, SEVERSON, and WILBUR, Justices, concur.
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