Agenda - Planning Commission - 10/09/2014

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Zoning Bulletin August 25, 2014 I Volume 8 ( Issue 16 the Equal Protection Clause of the South Dakota Constitution prohibits the differing standards of review applied to conditional use permit decisions at the circuit court level under South Dakota statutory law. The Background/Facts: In January 2013, Mustang Pass, LLC applied for a conditional use permit ("CUP") to construct an animal feeding operation in Moody County, South Dakota (the "County"). The County's Board of Adjust- ment eventually granted the CUP. Later, four citizens (the "Citizens") chal- lenged the Board of Adjustment's decision to grant the CUP. Among other things, the Citizens argued that South Dakota statutory law—SDCL chapter 11-2--and the statutory scheme governing appeals from CUP -related deci- sions at the circuit court level violated the Equal Protection Clause of the South Dakota Constitution (S.D. Const. art. VI, § 18). Under SDCL § 11-2-17.3, counties are given the power to designate the ap- proving authority for CUPs. In a county that designates a board of adjustment to consider CUPs, the appeal from the board of adjustment's decision on the CUP is via a writ of certiorari review process in circuit court. (See SDCL §§ 11-2-61 and 11-2-62.) In counties where the consideration of a CUP is left to the county commission, an appeal on a grant or denial of a CUP is via de novo review in circuit court. (See SDCL § 7-8-30.) The Citizens contended that this statutory scheme violated their right to equal protection under the law because citizens in counties without a board of adjustment received a more favorable de novo standard of review of CUP de- cisions at the circuit court level under SDCL § 7-8-30, while citizens in coun- ties with a board of adjustment received a less favorable standard of review by writ of certiorari under SDCL chapter 11-2. The circuit court found that the statutory scheme was constitutional and did not violate the Equal Protection Clause. The Citizens appealed. DECISION: Judgment of circuit court affirmed. The Supreme Court of South Dakota held that the statutory scheme apply- ing the two different standards of review for appeals of decisions on CUPs does not violate the Citizens' equal protection rights. In so holding, the court explained that in deciding whether a statutory scheme comports with the Equal Protection Clause, the court applies a two- part test: First, the court determines whether "the statute applies equally to all people" or creates arbitrary classifications among citizens. Next, if the clas- sification does not involve a fundamental right or suspect group, the court deteiniines whether a rational relationship exists between a legitimate legisla- tive purpose and the classifications created. Here, the court found that while SDCL § 11-2-17.3 on its face applied equally to all counties in that each county was afforded the opportunity to des- ignate the approving authority for the CUP, the statutes governing circuit court appeals of CUP decisions in effect set up two classes of citizens: One class comprised of citizens in counties that designated a board of adjustment to consider CUPs, thereby invoking the writ of certiorari review process in circuit court. (See SDCL § 11-2-61, -62.) The second class comprised of citizens in counties that chose not to designate a board of adjustment, thereby ©2014 Thomson Reuters 3