#26859, #26879-a-DG
2014 S.D. 75

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA

                                    ****
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.

                                    ****
                  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.
                                    ****

                                             ARGUED AUGUST 26, 2014
                                             OPINION FILED 10/29/14
JASON W. SHANKS
JOHN H. BILLION of
May & Johnson, PC
Sioux Falls, South Dakota   Attorneys for intervenors and
                            Appellees.
#26859, #26879

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 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


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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


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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.

[¶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 and, therefore, left the decision intact, holding that the

Hansons remained in the same position that they would have been in had

Commissioner Kelly not voted.

                             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 SDCL

11-2-17.3. See Smith v. Tripp Cnty., 2009 S.D. 26, ¶ 10, 765 N.W.2d 242, 246 (“The

interpretation of statutes and the application of statutes to given facts is a question

of law (or a mixed question of law and fact) that we review de novo.”). We review


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any factual findings of the circuit court for clear error. State v. Rolfe, 2014 S.D. 47,

¶ 14, 851 N.W.2d 897, 902.

                            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



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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.

SDCL 11-2-17.3.

[¶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




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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.”

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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.

[¶14.]       Further, the Hansons “fail[] to provide legal authority to support

[their] contention that [MCZO arts. 3.04 and 19.01 are] inherently arbitrary.” Cf.

Parris, 2013 S.D. 51, ¶ 18, 834 N.W.2d at 855. They do direct our attention to In re

Conditional Use Permit Denied to Meier, 2000 S.D. 80, 613 N.W.2d 523, and state

that this Court “wrote approvingly” of the more specific criteria used in that case.

The criteria set forth in Meier provided a “fixed rule or standard,” see Smith v.

Canton Sch. Dist. No. 41-1, 1999 S.D. 111, ¶ 9, 599 N.W.2d 637, 639-40, and would

have satisfied an obligation under SDCL 11-2-17.3 to “specify . . . criteria for

evaluating each conditional use.” However, the “specific standards” used in Meier

were guided by a stricter law that has since been repealed. Prior to 2004, SDCL 11-

2-17.2 required counties to establish “standards and criteria” that were to include

“requirements specific to each use.” SDCL 11-2-17.2 (2003) (repealed by 2004 S.D.

Sess. Laws ch. 101, § 8). In contrast, SDCL 11-2-17.3 requires only “criteria for

evaluating each conditional use.” Thus, even if we held that stricter standards were

preferable, we cannot conclude that they are constitutionally or statutorily required.


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[¶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.



1.       The implication of Kirschenman and our decision in the present case is that a
         conditional use could conceivably be simultaneously quasi-judicial for
         purposes of determining its constitutionality and quasi-legislative for
         purposes of being subject to referendum. We do not decide here whether the
         general criteria of MCZO art. 19.01 are sufficient to immunize that ordinance
         from referendum.

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[¶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

appeal to the County Commission deprived them of due process. The Hansons

contend that the circuit court was correct in determining that Commissioner Kelly

should have recused himself from the proceedings because he appeared to be

predisposed to the outcome. 2 However, the Hansons claim that the circuit court

erred in its determination that invalidating Commissioner Kelly’s vote—but

otherwise letting the decision of the County Commission stand—was a sufficient

remedy. We do not address whether Commissioner Kelly’s actions should have

disqualified him from participating because we affirm, regardless.

[¶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


2.       The Appellees and Intervenors assert by way of notice of review that
         Commissioner Kelly’s vote should not have been disqualified.

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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


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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


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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.

[¶22.]       In support of their requested remedy, the Hansons argue that “it can

be readily inferred that [Commissioner] Kelly’s opinions regarding the supposed

safety of the Worthing plant influenced the votes of other commissioners” and that

“[b]ecause of [Commissioner] Kelly’s intended influence on the other votes, the

entirety of the vote is suspect and the conditional use permit should be vacated.”

However, “[a]dministrative officials are presumed to be objective and capable of

judging controversies fairly on the basis of their own circumstances.” Stofferahn,

461 N.W.2d at 133 (citing United States v. Morgan, 313 U.S. 409, 421, 61 S. Ct. 999,

1004, 85 L. Ed. 1429 (1941)). This presumption of objectiveness bars the Hansons’

inference that the other commissioners were necessarily influenced. In determining

whether the other commissioners should have also been disqualified, Commissioner

Kelly’s intent to influence—if there was one—is relevant only to the extent that it

actually manifested and either created real bias or an unacceptable risk of bias.

Even assuming that Commissioner Kelly’s vote should be disqualified, a majority of

the County Commission still voted to uphold the Planning Commission’s decision.

Thus, the Hansons must actually show that either Commissioner Kelly’s actions

were sufficient to taint the entire proceeding or that one or more of the remaining

commissioners should also be disqualified individually.


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[¶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 do not point to any specific

“opinions” Commissioner Kelly shared before the County Commission that were not

directly addressed by witness testimony at the hearing. Instead, most of the

evidence against allowing Commissioner Kelly’s participation in the appeal cites his

statements at the circuit court stage, where he explained the potential effect the

tour had on his decision to vote in favor of the application. Commissioner Kelly did

comment at the County Commission meeting that he had toured the Worthing

facility and was “impressed with” the safety measures in place at Worthing and also

stated that he thought the chance of a spill was getting “less and less” from what he

observed at the facility. However, witnesses for EFC presented information on the



3.       Deference aside, we see nothing in the transcript of the appeal before the
         County Commission to suggest that Commissioners Barth or Pekas, or
         Chairman Beninga, were influenced by Commissioner Kelly’s comments.
         Commissioner Barth clearly supported the conditional use prior to
         Commissioner Kelly’s tour of the Worthing plant, as Commissioner Barth
         first voted to approve the conditional use while sitting on the Planning
         Commission. During the appeal to the County Commission, Commissioner
         Barth noted the danger inherent to anhydrous ammonia, but recognized the
         need to locate the facility in reasonable proximity to supporting
         infrastructure. Regarding EFC’s proposed site, Commissioner Barth asked,
         “If not there, then where?” Commissioner Pekas, although stating a serious
         concern for the children located in the area, seemed to echo Commissioner
         Barth’s view. Chairman Beninga’s vote in favor of the conditional use
         likewise appears to have been primarily motivated by the potential for
         economic development. His statements on the record evince a confidence that
         the concerns expressed by the opponents of the conditional use would largely
         be mitigated by the ten stipulations that the Planning Commission attached
         to the conditional use permit.

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specific safety standards and equipment used at EFC facilities, inspections,

frequency of spills and accidents, and descriptions of the Worthing facility with

comments from its neighbors. The other commissioners were able to weigh this

information on their own, and the Hansons had an opportunity to offer counter-

evidence.

[¶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 SDCL


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11-2-59. The Hansons’ reliance on this statute is misplaced. SDCL 11-2-59

provides:

             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 SDCL 11-2-60 may apply when a

board of county commissioners is exercising the powers of a board of adjustment 4—

but that factual scenario is not present in this case. Although boards of adjustment

are generally given the power to grant variances, South Dakota law does not

require board of adjustment action to approve conditional use permits. 5 See SDCL

11-2-53 (granting a board of adjustment power to hear and decide appeals and


4.    SDCL 11-2-60 provides:
           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.

5.    “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 passed a new law giving the power to the county to
      designate the entity responsible for approving conditional use permits.”
      Armstrong, 2009 S.D. 81, ¶ 10, 772 N.W.2d at 647.

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authorize variances); SDCL 11-2-17.3 (requiring county ordinances to “specify the

approving authority” for conditional uses). The Hansons fail to point to authority

designating the act of upholding the approval of a conditional use permit as a power

unique to a board of adjustment. Because the challenged vote was taken by the

County Commission, and the County Commission was not exercising the powers of

a board of adjustment, SDCL 11-2-59 and SDCL 11-2-60 do not apply. See also

Goos RV Ctr. v. Minnehaha Cnty. Comm’n, 2009 S.D. 24, ¶¶ 18-21, 764 N.W.2d 704,

710-11.

[¶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[.]” SDCL 11-2-60 (emphasis added). Here, the

County Commission was upholding a decision of the Planning Committee and

deciding against the Hansons, the appellants. The action therefore did not require

a two-thirds majority. For these reasons, the circuit court did not err when it held

that only the simple majority vote of the County Commission was needed to uphold

the Planning Commission’s decision. See SDCL 7-8-18.

                                   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


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sufficient remedy to cure any alleged due process concerns arising out of his

participation in the County Commission’s action. We therefore affirm.

[¶28.]       KONENKAMP, ZINTER, SEVERSON, and WILBUR, Justices, concur.




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