Agenda - Planning Commission - 12/03/2009

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~ ,: !i I' i; Ii !( (~ I I I I I I (~) ( ) ~ Zoning Bulletin October 10, 20091 Volume 31 No. 19 those twelve days it had spent approximately $44,000 on the grain stor~ age facility. VCEA subsequently applied to the Board for a CUP. The Board ul- timately denied the CUP, finding VCEA's application was inadequate. VCEA later filed a revised application. Between the Board's hearing on the original application and its hearing on the revised application, one of the Board members was replaced by Lyle Vah Hove. Before going on the Board, Van Hove had been a county com- missioner. In that role, he had been involved in a. dispute between the Abut- ters, who opposed the grain storage facility, and VCEA. In particular, Van Hove had been concerned about the county's possible liability related to the zoning administrator's mistake. Van Hove had contacted attorneys for both VCEA and the Abutters in an attempt to negotiate conditions that would satisfy the Abutters. Van Hove participated in the hearing on VCEA's revised application, and moved to approve the CUP. The CUP was unanimously approved by the Board. The Abutters challenged the Board's decision. Among other things, the Abutters claimed they were denied due process because Van Hove should have been disqualified as a decision maker on the Board. They maintained 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. . The circuit court denied the Abutters' claims. The Abutters appealed. DECISION: Reversed and remanded. The Supreme Court of South Dakota held that Van Hove had a dis- qualifying interest such that his participation violated the Abutters' due process rights. The court explained that the Fifth Amendment to the United States Constitution provided that "[n]o person shall ... be deprived of life, liberty, or property, without due process of law[.]" Since a local zoning board's decision to grant a CUP is quasi-judicial, it is subject to these Fifth Amendment due process constraints. A board's decision on a CUP must be "fair and impartial." This, said the court, means that members of the board must: "be free from bias or predisposition of the outcome;" and "must consider the matter with the appearance of complete fairness." A board member will have a disqualifying conflict of interest if: (1) the interest is different from. the interest of members of the general public; and (2) a reasonably-minded citizen would conclude that the member's interest "creates a potential to influence" the member's impartiality. Im- portantly, "[a] disqualifying conflict of interest may exist even if the of- ficial had not acted upon it." Here Van Hove denied that )1e had an interest in the outcome of the CUP decision. Nevertheless, the court found that his concern for the @ 2009 Thomson Reuters 11 93