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.
Nos. 26859, 26879.
Supreme Court of South Dakota.
Argued Aug. 26, 2014. Decided Oct. 29, 2014.
2014 S.D. 75; 855 N.W.2d 836
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.
[¶ 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 arbi
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.
STANDARD OF REVIEW
[¶ 8.] This Court reviews questions of law de novo, including the question of whether the county ordinances at issue satisfy the statutory requirements of
ANALYSIS AND DECISION
[¶ 9.] The Hansons essentially claim the Planning and County Commissions violated their right to due process of law in two ways. First, the Hansons allege the Minnehaha County Zoning Ordinances (MCZO) do not provide adequate criteria upon which to base a decision to grant a conditional use permit in this case. Therefore, they argue, the Planning Commission‘s decision to grant EFC a conditional use permit was arbitrary and capricious and constitutes a violation of the Hansons’ constitutional right to due process of law. Second, the Hansons allege Commissioner Kelly conducted an ex parte investigation prior to the Hansons appearing before the County Commission. The Hansons argue that Commissioner Kelly‘s subsequent participation in their appeal to the County Commission denied them a fair and impartial hearing, violating the Hansons’ right to due process. We disagree.
[¶ 10.] 1. Whether the Planning Commission‘s grant of a conditional use permit to EFC violated the Hansons’ right to due process.
[¶ 11.] “Although it is axiomatic that private property cannot be taken without due process of law, this limitation does not shield private property from regulations, such as zoning, which are implemented under the police power.” Schafer v. Deuel Cnty. Bd. of Comm‘rs, 2006 S.D. 106, ¶ 11, 725 N.W.2d 241, 245. Accordingly, the South Dakota Legislature empowered individual counties to not only enact their own zoning ordinances, but also to permit conditional uses of real property that might otherwise be contrary to those zoning ordinances. The Legislature, however, required that such zoning ordinances contain evaluation criteria for each conditional use.
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.
[¶ 12.] The conditional uses at issue in this case are “[a]griculturally related operations involving the handling, storage and shipping of farm products[,]” MCZO art. 3.04(X), and “[f]acilities for the storage and distribution of anhydrous ammonia[,]” MCZO art. 3.04(BB). These conditional uses, as well as others listed in MCZO art. 3.04, must be “obtained in conformance with the requirements of Article 19.00.” MCZO art. 3.04. Article 19.01 of the MCZO, in turn, requires 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.” Thus, protecting the health, safety, and general welfare are the first three general criteria upon which the Planning Commission must evaluate any petition for conditional use. Additionally, specific to agriculture-related businesses, the incorporated Comprehensive Plan outlines “Land Use Location and Design Criteria” for the Planning Commission to evaluate conditional uses. Those criteria require consideration of:
- Adjacent to county and state highways.
- Rail access for industrial uses.
- Controlled access onto major roadways.
- Adequate buffering from neighboring uses.
- Convenient siting of commercial uses for customers.
- Hard surfaced driveways and parking areas.
Therefore, the county ordinances delineate at least three criteria applicable to evaluating every conditional use application and six additional criteria—incorporated by reference from the Comprehensive Plan—for the Planning Commission to evaluate the conditional use applied for in this case.
[¶ 13.] Even if the MCZO did not provide nine criteria applicable to this conditional use, however, the Hansons’ constitutional argument still fails at an even more fundamental level. We have previously said, “It is well settled that a zoning law is afforded a presumption of constitutionality[.]” City of Brookings v. Winker, 1996 S.D. 129, ¶ 4, 554 N.W.2d 827, 828. Municipal zoning ordinances are afforded this same presumption of constitutional validity. Parris v. City of Rapid City, 2013 S.D. 51, ¶ 17, 834 N.W.2d 850, 855 (citing Winker, 1996 S.D. 129, ¶ 4, 554 N.W.2d at 829). To overcome this presumption, the challenging party “must show facts supporting the claim the ordinance is arbitrary, capricious, and unconstitutional.” Winker, 1996 S.D. 129, ¶ 4, 554 N.W.2d at 829 (citing Fortier v. City of Spearfish, 433 N.W.2d 228, 231 (S.D. 1988)). “Abstract considerations” are not sufficient to demonstrate arbitrariness. Id. Rather, as both this Court and the United States Supreme Court have held, an ordinance is arbitrary and unconstitutional when it has “no substantial relation to the public health, safety, morals, or general welfare.” Vill. of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 395, 47 S.Ct. 114, 121, 71 L.Ed. 303 (1926), quoted in City of Eastlake v. Forest City Enters., 426 U.S. 668, 676, 96 S.Ct. 2358, 2363, 49 L.Ed.2d 132 (1976); Schafer, 2006 S.D. 106, ¶ 12, 725 N.W.2d at 246 (quoting City of Eastlake, 426 U.S. at 676, 96 S.Ct. at 2363). In effect, then, the Hansons ask us to decide whether an ordinance—requiring the Planning Commission to protect the health, safety, and general welfare of the public—is substantially related to protecting the health, safety, and general welfare of the public. The question hardly survives its asking.
[¶ 15.] The Hansons’ reliance on this Court‘s decision in Kirschenman v. Hutchinson County Board of Commissioners, 2003 S.D. 4, 656 N.W.2d 330, overruled by Bechen v. Moody Cnty. Bd. of Comm‘rs, 2005 S.D. 93, 703 N.W.2d 662, is equally misplaced. In Kirschenman, we did not review the constitutionality of a zoning ordinance. Instead, we were faced with determining whether Hutchinson County‘s Board of Commissioners acted in a legislative or an administrative capacity in granting a conditional use permit for a hog confinement facility. We applied a “liberal rule of construction to permit citizens to exercise their powers of referendum.” Id. ¶ 7, 656 N.W.2d at 333. Because the ordinance‘s complete lack of standards or conditions meant it was only “an open-ended statement that the Board is allowed to grant or deny a use permit[,]” we concluded that the Board‘s approval of the conditional use was a legislative action subject to referendum. Id. ¶ 9, 656 N.W.2d at 334. Thus, our commentary in Kirschenman related only to the sufficiency of conditional use standards in the context of whether or not the approval of a conditional use was subject to referendum and had nothing to do with whether the conditional use ordinance provided an adequate basis for the Board to constitutionally approve a conditional use.1 Even if Kirschenman could be read as the Hansons suggest, it was also decided prior to 2004 and would be susceptible to the same criticism as the Hansons’ reliance on Meier, above.
[¶ 16.] We therefore conclude that the Planning Commission‘s reliance on the criteria stated in MCZO arts. 3.04 and 19.01, in granting EFC‘s conditional use request, was not arbitrary and capricious and did not violate the Hansons’ right to due process.
[¶ 17.] 2. Whether Commissioner Kelly‘s participation in the County Commission‘s review of the Planning Commission‘s approval of the conditional use permit violated the Hansons’ right to due process.
[¶ 18.] The Hansons argue that Commissioner Kelly‘s participation in the ap
[¶ 19.] A “fair trial in a fair tribunal is a basic requirement of due process which is applicable to administrative agencies.” Nw. Bell Tel. Co. v. Stofferahn, 461 N.W.2d 129, 132 (S.D.1990) (citing Strain v. Rapid City Sch. Bd., 447 N.W.2d 332, 336 (S.D.1989)). The test for disqualifying an administrative official is different for quasi-legislative and quasi-judicial administrative actions. See id. at 133-34. We have stated that “a local zoning board‘s decision to grant or deny a conditional use permit is quasi-judicial and subject to due process constraints.” Armstrong v. Turner Cnty. Bd. of Adjustment, 2009 S.D. 81, ¶ 19, 772 N.W.2d 643, 650-51. See also Stofferahn, 461 N.W.2d at 133 (internal quotation marks omitted) (“Administrative action is [a]djudicatory in character if it is particular and immediate, rather than, as is the case of legislative or rule making action, general and future in effect.“). Thus, “the test we have applied in determining whether an applicant received a fair and impartial hearing is whether there was actual bias or an unacceptable risk of actual bias.” Hanig v. City of Winner, 2005 S.D. 10, ¶ 11, 692 N.W.2d 202, 206. “If the circumstances show a likely capacity to tempt the official to depart from his duty, then the risk of actual bias is unacceptable and the conflict of interest is sufficient to disqualify the official.” Id. ¶ 15, 692 N.W.2d at 207. “When a due process violation exists because of a board member‘s disqualifying interest, the remedy is to ‘place the complainant in the same position had the lack of due process not occurred.‘” Armstrong, 2009 S.D. 81, ¶ 32, 772 N.W.2d at 654 (quoting Hanig, 2005 S.D. 10, ¶ 22, 692 N.W.2d at 210).
[¶ 20.] Primarily relying on Armstrong, the Hansons argue that the only way to restore them to “the same position” is to grant them a new hearing and to “begin anew.” The Hansons misinterpret the significance of Armstrong. In Armstrong, the Turner County Board of Adjustment granted an elevator cooperative a conditional use permit to construct a commercial grain storage facility. Id. ¶ 7, 772 N.W.2d at 646-47. A member of the Board of Adjustment, Van Hove, was also a county commissioner. In his role as county commissioner, Van Hove had previously become “deeply involved” in a conflict between the elevator and local residents opposing the conditional use permit. Id. ¶ 31, 772 N.W.2d at 654. Out of concern that a building permit erroneously granted by the county would lead to liability for the county, Commissioner Van Hove attempted to get the parties to negotiate. Id. This interest and ex parte communication was not disclosed until after the hearing on the conditional use permit. Id. On appeal, this Court concluded that Commissioner Van Hove‘s position as the only county commissioner on the Board of Adjustment carried weight with the other board members. Id. ¶ 32, 772 N.W.2d at 654. We vacated the permit, granted a new hearing, and disqualified Commissioner Van Hove. Id.
[¶ 21.] Armstrong in no way suggests that every disqualification of an official should result in a new hearing. Rather, Armstrong held that a board member‘s conflicting interest—a subset of all the reasons for disqualification—is sufficient to raise an unacceptable risk of bias requiring a new hearing. However, disqualification for a reason other than having a conflict of interest is not necessarily sufficient to warrant a new hearing. “If an official reflects subjective partiality, this does not mean a proceeding conducted in good faith is necessarily invalidated.” Stofferahn, 461 N.W.2d at 133 (citing Lead Indus. Ass‘n v. EPA, 647 F.2d 1130 (D.C.Cir.1980)). To assert otherwise expands the holding of Armstrong well beyond its intended limits. In the present case, the Hansons’ due process claim is not based on any assertion that Commissioner Kelly had a conflicting interest that would prevent him from objectively hearing their appeal. Instead, their claim is premised on the conclusion that Commissioner Kelly‘s pre-hearing investigation and ex parte communication with EFC created a bias in his own mind that was potentially spread to the rest of the County Commission. Because there is no assertion of a conflict of interest—i.e., a personal interest in the outcome—let alone evidence of one, Armstrong does not require us to automatically order a new hearing in this case. Rather, we must examine the apparent effect Commissioner Kelly had on the remaining three members of the County Commission.
[¶ 23.] The Hansons have not met their burden. We give 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.3 For their part, the Hansons
[¶ 24.] After reviewing the transcript of the hearing, we conclude 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. Because the County Commission was comprised only of other county commissioners—colleagues of equal station to Commissioner Kelly—there is no unacceptable risk that his opinion carried disproportionate weight, as was our concern regarding Commissioner Van Hove in Armstrong. 2009 S.D. 81, ¶ 32, 772 N.W.2d at 654. In the absence of Commissioner Kelly‘s vote, the County Commission‘s decision still commands a majority of that body. Even if Commissioner Kelly formed some bias against the Hansons as a result of his pre-appeal activities, he did not have a conflicting interest in the outcome of the proceeding. Therefore, we conclude that Commissioner Kelly‘s opinions did not affect the outcome of the proceeding, and we agree with the circuit court that invalidating Commissioner Kelly‘s vote placed the Hansons in the same position they would have been in had Commissioner Kelly not participated in the hearing.
[¶ 25.] The Hansons also argue that without Commissioner Kelly‘s vote, the remaining three votes fail to carry the two-thirds majority vote required by
The concurring vote of two-thirds of the members of the board of adjustment is necessary to reverse any order, requirement, decision, or determination of any such administrative official, or to decide in favor of the applicant on any matter
upon which it is required to pass under any such ordinance, or to effect any variation in the ordinance.
First, this statute applies to “the board of adjustment[.]” The vote challenged by the Hansons was not taken by a board of adjustment, but rather by the County Commission. The Appellees correctly note that
[¶ 26.] Moreover, even if the County Commission were acting as a board of adjustment in this case, a two-thirds majority vote is only required to “reverse any order, requirement, decision, or determination of any administrative official, or to decide in favor of the appellant[.]”
CONCLUSION
[¶ 27.] We conclude that the Minnehaha County Zoning Ordinances set forth criteria for evaluating the conditional use application in this case such that the Planning Commission‘s reliance on those standards did not produce an arbitrary and capricious decision in violation of the Hansons’ due process rights. Furthermore, we conclude that 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. We therefore affirm.
Notes
In lieu of appointing the board of adjustment provided by
§ 11-2-49 , the board of county commissioners having adopted and in effect a zoning ordinance may act as and perform all the duties and exercise the powers of the board of adjustment. The chair of the board of county commissioners is chair of the board of adjustment as so composed. The concurring vote of at least two-thirds of the members of the board as so composed is necessary to reverse any order, requirement, decision, or determination of any administrative official, or to decide in favor of the appellant on any matter upon which it is required to pass under any zoning ordinance, or to effect any variation in the ordinance.