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Armstrong v. Turner County Board of Adjustment

August 26, 2009



The opinion of the court was delivered by: Meierhenry, Justice

ARGUED ON MAY 27, 2009

[¶1.] Rosemary Armstrong and Alphie Petersen (Homeowners) appeal the circuit court's denial of a writ of certiorari challenging the Turner County Board of Adjustment (Board)'s approval of a conditional use permit issued to the Viborg Cooperative Elevator Association (Elevator). We reverse on the grounds that Homeowners did not receive due process because one of the Board members had a disqualifying interest and should not have participated as a decision maker.


[¶2.] In 2006, the Elevator sought to construct a commercial grain storage facility on property it owned located adjacent to the Viborg city limits in Turner County. The proposed facility consisted of two bunkers. Each bunker measured 100 x 250 feet and would hold approximately 250,000 bushels of corn. While the Elevator's property was zoned agricultural, the property abutted an area zoned residential. Homeowners owned single-family residences on this abutting property within the city limits of Viborg. The Elevator's proposed commercial grain storage facility was not a permitted use under Turner County zoning ordinances. The zoning ordinances, however, identified a grain storage facility as a conditional use eligible for a conditional use permit. To acquire a conditional use permit, the Elevator had to submit an application to the Turner County Board of Adjustment.

[¶3.] Instead of applying for a conditional use permit, the Elevator applied for a building permit with the Turner County zoning administrator. By mistake, the administrator issued the Elevator a building permit on October 6, 2006. The administrator realized her mistake on or about October 18, 2006, and informed the Elevator that the building permit was invalid and that the Elevator needed a conditional use permit. During the interim, the Elevator claimed it had spent around $44,000 on the facility. The Elevator subsequently applied to the Board for a conditional use permit.

[¶4.] The Board scheduled a public hearing on the application for November 14, 2006. Homeowners attended the hearing to object. Homeowners claimed that placement of the facility was incompatible and would disturb the residential atmosphere of the area and diminish the value of their homes. The Homeowners' concerns about the permit included the distance of the facility to their homes, the continuousnoise from the facility's large aeration fans and the increased traffic on the access road between the homes and the storage facility. The Elevator acknowledged that approximately one thousand trucks would use the access road during the harvest season. The Homeowners also complained of seeing an increase in rodents, dust, and drainage problems attributable to the placement of the grain storage facility. The Board had several concerns with the application. One of the concerns was the proposed facility's close proximity to the city's residential area. The Board ultimately denied the permit because of the Elevator's application was inadequate.

[¶5.] In December of 2006, the Elevator filed a revised application, and another hearing was set for January 9, 2007. Between the Board's hearing on the original application and the hearing on the revised application, one of the Board members was replaced. The outgoing county commissioner was replaced [on the Board] by County Commissioner Lyle Van Hove.

[¶6.] Before going on the board of adjustment, Van Hove had been involved in the dispute between the Homeowners and the Elevator in his role as county commissioner. Van Hove knew that the county's employee, the county zoning administrator, had erroneously issued a building permit. Van Hove was worried about the county's possible liability to the Elevator for the mistake. Consequently, Van Hove in his capacity as a county commissioner made contact with the attorney for the Elevator and also with the attorney of the Homeowners in an attempt to negotiate conditions that would satisfy the Homeowners. The attorney for the Homeowners testified that his conversation with Van Hove included the topic of the County's liability for the Elevator's expenditures on the facility between the time of issuing the invalid building permit and the time the Elevator was notified of its invalidity. The Elevator claimed it spent $44,000 during that time.

[¶7.] On January 9, 2007, the Board held a hearing on the Elevator's revised application. In this hearing, Van Hove participated as a member of the Board. At the close of the hearing, Van Hove moved to approve the conditional use permit. All of the members of the board approved the conditional use permit for two grain storage bunkers. The Board adopted the written findings of the zoning administrator in accord with the county ordinances. The findings certified that the proposed facility complied with the conditional use zoning ordinance requirements. One of the requirements was for the facility to be generally compatible with surrounding property. In addressing compatibility, the Board cited compatibility with property on three sides of the facility--a lagoon to the north, the industrial park to the east, and the Viborg elevator three blocks to the south. The findings did not include any specific reference to compatibility with the residential property to the west of the proposed grain facility. Nevertheless, the Board approved the permit.

[¶8.] Homeowners filed a petition for writ of certiorari with the circuit court on February 9, 2007. The Board subsequently scheduled a rehearing. The Board's notice for rehearing cited the reason for rehearing was because "[t]he Board [had] received criticism of an alleged deficiency in the Findings reached." On October 9, 2007, the Board conducted the rehearing and added seven conditions to the permit. This time, the Board acknowledged the residential housing to the west side of the storage facility and entered a finding as to general compatibility as follows: "property is adjoining to landfill to lagoon areas to the north, industrial to the east, as to the west, residential to the west, meets set backs, like properties on 3 sides." Under additional findings the Board wrote, "Brian Schmidt-Expert Witness -- testified loss of value to adjoining residential property."

[¶9.] Homeowner's writ of certiorari proceeded to a hearing before the circuit court on July 10, 2008. The circuit court denied the writ of certiorari. The Homeowners appeal the court's decision raising two issues: (1) whether Homeowners were denied due process because Van Hove should have been disqualified as a decision maker because of his interest in the outcome, and (2) whether the Board exceeded its authority when the Board did not follow the county's ordinance as to compatibility with adjoining property.


[¶10.] The standard of review in many of the recent appeals from a county's decision on a conditional use permit has been limited in scope because the appeals reached the Court through a writ of certiorari. However, a recent case, Goos RV Center v. Minnehaha County Comm'n, approved of a de novo review pursuant to SDCL 7-8-27. 2009 SD 24, ¶8, 764 NW2d 704, 707. Although Goos RV Center appears on the surface to contradict some of our prior decisions on proper appellate procedure and standard of review, the source of the different procedures derives from the legislature. Prior to 2004, the law provided that a county board of adjustment had the authority to approve conditional use permits and variances. The law also specified that appeals from a board of adjustment went directly to circuit court by way of a writ of certiorari. See id. ¶20, 764 NW2d at 711 (citing Jensen v. Turner Cty. Bd. of Adjustment, 2007 SD 28, ¶4, 730 NW2d 411, 412-13); see also Elliott v. Board of County Comm'rs of Lake County, 2005 SD 92, ¶14, 703 NW2d 361, 367. In 2004, the legislature removed the provision in the law that gave a county board of adjustment the authority to approve conditional use permits. In its place, the legislature passeda new law giving the power to the county todesignate the entity responsible for approving conditional use permits. SDCL 11-2-17.3. Although the legislature left intact the appeal procedure from a board of adjustment, the legislature omitted any reference to an appeal procedure if the county-designated entity was not a board of adjustment.

[¶11.] The effect of the omission has created inconsistencies in the appeal process depending on which entity a county designates as the approving authority. Thus, the same action of approving or denying a conditional use permit may have a different appeal procedure depending on which entity approves the permit. In this case, the county board of adjustment approved the permit, and the statute requires that an appeal from a decision of a county board of adjustment proceed directly into circuit court in the form of a writ of certiorari. SDCL 11-2-62. In Goos RV Center, the Minnehaha County ordinances designated the planning and zoning board as the approving authority and apparently allowed an appeal to the county commission before proceeding to circuit court. 2009 SD 24, ¶21, 764 NW2d at 711. Generally, an appeal into circuit court from a county commission decision is a de novo review under SDCL 7-8-27. Whether intentional of inadvertent, the current law allows for inconsistent procedures among counties and a confusing system of approving and appealing conditional use permits.

[¶12.] Since the appeal in this case is from a county board of adjustment, it comes to the Court through a writ of certiorari. SDCL 11-2-61; SDCL 11-2-62; SDCL 21-31-8. See Jensen, 2007 SD 28, ¶4, 730 NW2d at 412-13 (citing Elliott, 2005 SD 92, ¶¶13-14, 703 NW2d at 367). The Court's scope of review on a writ of certiorari "cannot be extended further than to determine whether the... board... has regularly pursued [its] authority...." SDCL 21-31-8. We have explained the limited scope of review as follows:

Our consideration of a matter presented on certiorari is limited to whether the board of adjustment had jurisdiction over the matter and whether it pursued in a regular manner the authority conferred upon it. A board's actions will be sustained unless it did some act forbidden by law or neglected to do some act required by law.

Jensen, 2007 SD 28, ¶4, 730 NW2d at 413 (quoting Elliott, 2005 SD 92, ¶14, 703 NW2d at 367). Additionally, we have said, "[w]ith a writ of certiorari, we do not review whether the [board's][ ] decision is right or wrong. We are limited to determining whether the [board][ ] regularly pursued its authority." Duffy v. Circuit Court, Seventh Judicial Circuit, 2004 SD 19, ¶33, 676 NW2d 126, 138.


[¶13.] The Homeowners first argue that they did not receive a fair and impartial due process hearing due to the presence of Van Hove on the Board. The Homeowners contend that Van Hove had a conflict of interest in the proceedings because of his involvement as a county commissioner in trying to resolve the dispute.

Zoning Laws and Ordinances

[¶14.] The legal framework for a county's zoning authority stems from the South Dakota legislature. The legislature authorizes a county to establish and administer zoning ordinances. SDCL ch 11-2. The board of county commissioners has the authority to adopt by ordinance a comprehensive zoning plan that regulates land use in the county. SDCL 11-2-13. The responsibility to develop and present the county zoning plan or any subsequent changes rests with a county planning and zoning commission. SDCL 11-2-2; SDCL 11-2-11. The planning and zoning commission is comprised of "five or more members" appointed by the county commission and "at least one member shall be a member of the board of county commissioners." SDCL 11-2-2. Once approved, the zoning ordinances are administered by a county administrative official. SDCL 11-2-25. Appeals from an administrator's decisions are heard by the board of adjustment. SDCL 11-2-53. In addition to hearing and deciding appeals, the board of adjustment has the power to authorize variances. Id. The board of county commissioners can appoint a separate board of adjustment or may appoint "the planning and zoning commission to act as a board of adjustment," or the board of county commissioners "may act as and perform all the duties and exercise the powers of the board of adjustment." SDCL 11-2-49; SDCL 11-2-60.

[¶15.] The legislature set forth the specifics required in a county zoning ordinance "that authorizes a conditional use of real property." SDCL 11-2-17.3. The statute provides:

A county zoning ordinance adopted pursuant to this chapter that authorizes a conditional use of real property shall specify the approving authority, each category of conditional use requiring such approval, the zoning districts in which a conditional use is available, and the criteria for evaluating each conditional use. The approving authority shall consider the stated criteria, the objectives of the comprehensive plan, and the purpose of the zoning ordinance and its relevant zoning districts when making a decision to approve or disapprove a conditional use request.

SDCL 11-2-17.3.

[¶16.] A conditional use is defined by the South Dakota Legislature as follows:

[A]ny use that, owing to certain special characteristics attendant to its operation, may be permitted in a zoning district subject to the evaluation and approval by the approving authority specified in ยง 11-2-17.3. A conditional use is subject to requirements that are different from the ...

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