Posted by: Patricia Salkin | August 27, 2019

SD Supreme Court Finds Ordinance Amendment Void for Lack of Compliance with Statutory Notice Requirements

This post was authored by Matthew Loeser, Esq.

In April 2016, the Pennington County Board of Commissioners passed a moratorium on construction permits for alternative energy and mining operations in Pennington County, and formed a committee to review Section 507-B of the Pennington County Zoning Ordinance (“PCZO”) regulating mining permits. After the committee compiled its work into a proposed ordinance amendment, OA 17-02, Duane Abata, Donald Burger, and Barrett Wendt brought a declaratory judgment action challenging the validity of the zoning ordinance amendment. The parties filed cross-motions for summary judgment. The circuit court granted the Citizens’ motion, finding the ordinance void for lack of compliance with statutory notice requirements.

The Board first argued on appeal that Citizens did not have standing to bring this action. The record reflected that Citizens resided near Perli Quarry, a mining operation owned and operated by Croell Redi-Mix. The court held that the landowners neighboring Perli Quarry could be affected by mining operations by impacting water quality, creating dust, and increasing traffic. Additionally, in the hearings before the Board dealing with OA 17-02, the Citizens emphasized that due to their proximity to Perli Quarry, the mining operations there would adversely affect them by causing “traffic problems, health issues, environmental concerns, and reduced property values.” Thus, the court determined that Citizens had demonstrated an actual or threatened injury affecting their property if OA 17-02 was enacted in violation of Citizen’s due process rights.

Next, the Board contended that “Citizens waived any argument they may have to the adequacy of notice by appearing at the public hearings and being heard.” Specifically, the Board claimed that any possible error in the publication process did not prejudice the Citizens, as Citizens and their attorneys attended and were heard at nearly every hearing held regarding OA 17-02. The court found, however, the mere fact that Citizens were present and heard did not inherently validate OA 17-02; notice requirements, the court noted, were set forth to provide notice to all citizens potentially impacted by the enactment, not just those who later bring legal challenges. Therefore, the court held it was the Board’s burden to comply with those statutes, and any violation of them would render a zoning ordinance amendment void.

Here, the notice for the Board hearing on OA 17-02 was inadequate as the legal notice advertised the Board’s discussion of the amendment as taking place on January 2, 2018. Despite this, the Board did not consider OA 17-02 until February 6, which was never advertised in a legal newspaper. The court found this failure to comply with SDCL 11-2-30 rendered OA 17-02 void and the circuit court’s ruling was affirmed.

Abata v. Pennington County Board of Commissioners, 2019 WL 3022361 (SD 7/10/2019)

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