Posted by: Patricia Salkin | December 16, 2016

SD Supreme Court Upholds Grant of Conditional Use Permit for Ethanol Plant as Petitioner’s Appeal was Untimely

Petitioners appealed the decision of the Sully County Board of Adjustment grantin a conditional use permit (CUP) to Ring–Neck Energy & Feed, LLC that would allow construction and operation of an ethanol plant. Petitioners filed their application to the circuit court for relief on August 20, 2015, thirty-one days after the Board’s decision approving the permit was filed in the Sully County Planning and Zoning office on July 20, 2015. The court noted that the applicable statute, SDCL 11–2–61 , provided that the time for appeal began to run upon the filing of the decision, and that an aggrieved person must present a petition “within thirty days after the filing of the decision in the office of the board of adjustment.” Petitioners contended that the object of their appeal was the Board’s approval of the meeting minutes and not the Board’s decision to grant the CUP. However, because SDCL 11–2–61 required that the petition set “forth that the decision is illegal” and specify “the grounds of the illegality,” the court found the relevant decision that the statute was referencing was that which the petitioner was claiming is illegal. Therefore, the relevant decision that Petitioners were appealing from was the Board’s decision to grant the CUP on July 20, not the decision to approve the Board’s minutes. Because Petitioners failed to timely appeal the Board of Adjustment’s decision to grant a conditional use permit the court affirmed the circuit court’s dismissal of the case as untimely.

Hyde v. Sully County Bd. of Adjustment, 2016 WL 5637003 (SD 9/28/2016)

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