Date of Board’s decision, not date of approval of meeting minutes, starts clock for filing appeal

by Gary Taylor and Hannah Dankbar

Hyde v. Sully County Board of Adjustment
South Dakota Supreme Court, September 28, 2016

Hyde appealed a decision from the Sully County Board of Adjustment (the Board) to grant a conditional use permit (CUP) to Ring-Neck Energy & Feed, LLC for an ethanol plant. The Board approved the CUP in a meeting held on July 20.  When the next met on August 4 it approved the minutes of the July 20 meeting.  Hyde challenged the approval in district court on August 20, which was 31 days after the Board’s approval but only 16 days after approval of the meeting minutes.  Hyde claimed that the approval was illegal due to violations of the open-meeting laws, and that an ethanol plant is not allowed under the Sully County zoning ordinance. The court determined that the petition was untimely, and Hyde appealed.

Regarding the timeliness of the petition in district court, state statute (SDCL 11-2-61) requires these petitions to be filed within 30 days of the day the decision is filed. Hyde argued that the relevant date for appeal purposes was the date of the Board’s approval of the meeting minutes, not the Board’s decision to grant the CUP.  The state statute requires that a petition set forth  “the grounds of the illegality” of the decision being challenged; thus the statute is referencing the date of the decision claimed to be illegal.  That decision would be made on July 20.  The Hydes do not claim any illegalities associated with the decision made on August 4 to approve the minutes.

Because the petition was not filed in a timely manner, the court did not hear the other arguments raised on appeal.

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