Hanson v. Minnehaha Cnty. Comm'n (In re Conditional Use Permit # 13–08)

• Decision Date: 29 October 2014
• Docket Number: 26879.,Nos. 26859,s. 26859
• Citation: 855 N.W.2d 836
• Court: South Dakota Supreme Court
• Parties: 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.

855 N.W.2d 836

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.

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. ShanksJohn H. Billion of May & Johnson, PC, Sioux Falls, South Dakota, Attorneys for intervenors and Appellees.

Opinion

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 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.

[¶ 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 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 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 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...