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In re Conditional Use Permit # 13-08

Supreme Court of South Dakota

October 29, 2014

IN THE MATTER OF CONDITIONAL USE PERMIT # 13-08, DOUG HANSON and LOUISE HANSON, Petitioners and Appellants,
v.
MINNEHAHA COUNTY COMMISSION, MINNEHAHA COUNTY, SOUTH DAKOTA, Respondents and Appellees, EASTERN FARMERS COOP, Intervenors and Appellees

Argued August 26, 2014.

APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA. THE HONORABLE ROBIN J. HOUWMAN, Judge.

RICK L. RAMSTAD of Crew & Crew, PC, Sioux Falls, South Dakota, Attorneys for petitioners and appellants.

SARA E. SHOW, KERSTEN A. KAPPMEYER of Minnehaha County State's Attorney's Office Sioux Falls, South Dakota, Attorneys for respondents and appellees.

JASON W. SHANKS, JOHN H. BILLION of May & Johnson, PC Sioux Falls, South Dakota, Attorneys for intervenors and Appellees.

GILBERTSON, Chief Justice. KONENKAMP, ZINTER, SEVERSON, and WILBUR, Justices, concur.

OPINION

Page 837

GILBERTSON, Chief Justice

[¶1] Appellants Doug and Louise Hanson appeal from a de novo circuit court decision upholding the approval of a conditional use permit applied for by Eastern Farmers Cooperative. On appeal to this Court, the Hansons assert that the Minnehaha County Commission's decision to uphold the approval of the permit was arbitrary

Page 838

and capricious and that ex parte communications between a commissioner and Eastern Farmers Cooperative violated the Hansons' due process rights. We affirm.

FACTS AND PROCEDURAL HISTORY

[¶2] 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. The subject land, as well as the neighboring land at issue in this case, is zoned A-1 Agricultural.

[¶3] The Minnehaha Planning Commission scheduled a hearing to review EFC's application. In preparation for the meeting, the Minnehaha County Planning Director reviewed the application and visited the proposed site. He observed the layout of the land and the proximity of homes and businesses to the proposed site, including three farmsteads located within a half-mile of the site. The Planning Director recommended approving the permit with ten conditions.

[¶4] At the Planning Commission hearing, the Hansons and other area residents appeared in order to oppose the conditional use permit. They voiced concerns about the dangers of chemical storage in close proximity to their residences. The Hansons' residence, located within the A-1 Agricultural zone, is directly across a county road from the proposed facility. At the conclusion of the hearing, the Planning Commission voted unanimously to approve the permit, subject to the ten stated conditions. The Hansons appealed the decision of the Planning Commission to the Minnehaha County Commission.

[¶5] Prior to the appeal hearing, County Commissioner Dick Kelly called the agronomy facility near Worthing, South Dakota, and requested a tour. During the tour, which lasted about an hour, Commissioner Kelly viewed the interior and exterior of the facility and received information on some of its safety features. Although the Planning Director informed Commissioner Kelly that EFC owned the Worthing facility, it is disputed whether Commissioner Kelly knew who operated the plant at the time he arranged the tour.

[¶6] The County Commission held a hearing on the appeal. Four members of the County Commission were present, including Commissioner Kelly. One commissioner was absent. At the appeal hearing, the Hansons and their attorneys presented testimony and other evidence in opposition to the facility, including plume analyses simulating an anhydrous ammonia spill. Other opponents of the permit voiced their concerns about traffic and other safety and aesthetic concerns. During the appeal hearing, Commissioner Kelly disclosed that he had toured the Worthing facility and was impressed by the safety measures in place. Attorneys and witnesses for EFC presented testimony about federal and state regulations regarding storage of chemicals, evidence about EFC's safety record, and safety features at other facilities. They also presented other information, including the plant's potential economic impact on the area. They presented surveys--also given to neighbors--of EFC's other facilities that described the extent of noise, dust, traffic, and other conditions surrounding those facilities. At the conclusion of the hearing, the commissioners present voted unanimously in favor of upholding the Planning Commission's decision to grant the permit to EFC.

Page 839

[¶7] Pursuant to SDCL 7-8-30, the Hansons sought de novo review of the decision before the circuit court. The circuit court held a trial and heard evidence from many of the same witnesses--including testimony from Commissioner Kelly and the other commissioners about the impact Commissioner Kelly's tour had on their decision. The circuit court held that the Comprehensive Plan satisfied the requirements of SDCL 11-2-17.3. The circuit court also found that Commissioner Kelly's tour of the Worthing Facility constituted ex parte communication that disqualified his vote. However, the circuit court found no evidence of influence in the other three votes ...


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