Posted by: Patricia Salkin | November 12, 2014

SD Supreme Court Finds Disqualification for a Reason Other Than Having a Conflict of Interest is Not Necessarily Sufficient to Warrant a New Hearing

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. This land, and the neighboring land at issue in this case, was zoned A–1 Agricultural. During the appeal hearing, one of the County Commissioners, Commissioner Kelly, disclosed that he had toured the Worthing facility and was impressed by the safety measures in place. The Hansons, who owned the property across the road from proposed agronomy facility, asserted that the Minnehaha County Commission’s decision to uphold the approval of the permit was arbitrary and capricious and that ex parte communications between Commissioner Kelly and Eastern Farmers Cooperative violated the Hansons’ due process rights.

The court first noted that municipal zoning ordinances are afforded a presumption of constitutional validity, and to overcome this presumption the challenging party must show facts supporting a claim the ordinance were arbitrary, capricious, and unconstitutional. Here, the ordinance required 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”, and was therefore found to be substantially related to protecting the health, safety, and general welfare of the public.

As to the due process claim, the Hansons argued that Commissioner Kelly’s opinions regarding the supposed safety of the Worthing plant influenced the votes of other commissioners and because 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, the court held that the Hansons were required to 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. Since the Hansons failed to meet this burden, the court gave 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.

Accordingly, the court concluded 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. Thus, invalidating Commissioner Kelly’s vote was a sufficient remedy to cure any alleged due process concerns arising out of his participation in the County Commission’s action.

Hanson v. Minnehaha County, 2014 WL 5474691 (SD 10/29/2014)

The opinion can be accessed at: http://www.ujs.sd.gov/uploads/sc/opinions/26859.pdf


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