Improper ex parte contact only invalidated vote of commissioner making the contact

by Hannah Dankbar

Doug and Louise Hanson v Minnehaha County Commission
(South Dakota Supreme Court, October 29, 2014)

Eastern Farmers Cooperative (EFC) applied for a conditional use permit to build an agronomy facility. The facility would store, distribute and sell a variety of farm products, including anhydrous ammonia. The land the facility would sit on, and the surrounding area is zoned as A-1 Agricultural. The Minnehaha Planning Commission recommended approving the permit with ten conditions, even though local residents, including the Hansons, voiced their objections at the Planning Commission hearing because of safety and aesthetic concerns. The Hansons appealed to Minnehaha County Commission. In anticipation of the appeal one of the county commissioners (Kelly) toured an agronomy facility near Worthing, South Dakota. The facility was owned by EFC, but it is unclear if the commissioner knew this when he set up the tour. The County Commission held its hearing and approved the permit by a unanimous vote.  Commissioner Kelly disclosed at the hearing that he had touring the Worthing facility, and that he was impressed by its safety measures. The Hansons appealed to the circuit court. The court held that the Commissioner Kelly’s vote did not count due to the improper ex parte communication, but the other votes were not affected and so the approval of the permit stood. The Hansons appealed the decision.

The Hansons claim that they were denied due process in two ways: (1) that the Minnehaha County Zoning Ordinance (MCZO) does not provide adequate criteria upon which to base a decision to grant a conditional use permit, and (2) that Commissioner Kelly’s participation in the appeal to the County Commission denied them a fair and impartial hearing,

In giving counties ability to control their own zoning, counties must put in place criteria for determining when conditional use permits may be granted.  The Minnehaha County Zoning ordinance delineates three general criteria applicable to every conditional use permit application, and an additional six applicable to the types of agricultural uses at issue in this case.  The South Dakota Supreme Court noted that zoning ordinances are presumed to be constitutional, and that to overcome this presumption the challenging party must show the ordinance is arbitrary, capricious and unconstitutional. Abstract considerations are not sufficient. The South Dakota Supreme Court rejected the Hanson’s argument because they failed to show any way in which the standards in the ordinance did not pass muster.

2. The Hansons argue that the EFC should be required to “begin anew” with the permitting process because the votes of the other commissioners were influenced by the statements of Commissioner Kelly  To meet their burden, however, The Supreme Court stated that the Hanson’s must actually show that either Commissioner Kelly’s actions were sufficient to taint the entire preoceeding or that one or more of the other commissioners should be disqualified individually.  The Hanson’s failed to produce any evidence of any influence Kelly’s actions may have had on the other commissioners.  The court concluded that invalidating Kelly’s vote alone was a sufficient remedy.  With that vote invalidated, the Commission still approved the conditional use permit 3-0.

 

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