Agenda - Planning Commission - 01/08/2015

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Zoning Bulletin December 10, 2014 1 Volume 8 1 Issue 23 or general welfare." Here, the MCZO required the Commission to protect the health, safety, and general welfare of the public. Next, addressing the Hansons' due process claims related to Kelly's ex parte communications, the court explained that a "fair trial is a basic requirement of due process which is applicable to administrative agencies." The court said that the test in deteimining whether an ap- plicant received a fair and impartial hearing is "whether there was actual bias or an unacceptable risk of actual bias." The court further explained that if it was to find that Kelly's disqualifying interest resulted in a due process violation to the Hansons, the remedy would be to place the Hansons in the same position had the lack of due process not occurred. The court concluded that the Hansons' failed to meet the burden nec- essary to show that Kelly's ex parte communications violated the Hansons' due process rights. The Hansons had not asserted or shown that Kelly had a conflict of interest (i.e., a personal interest in the outcome) that would have required the court to automatically order a new hearing in the case. Further, the Hansons had failed to meet their burden of showing that "Kelly's actions were sufficient to taint the entire proceeding or that one of the remaining commissioners should also be disqualified individually." There was no evidence that the other com- missioners relied on, or even considered, Kelly's statements when cast- ing their votes, found the court. The Hansons also failed to point to any specific "opinions" that Kelly shared before the Commission that were not otherwise also directly addressed by witness testimony at the hearing. Having found that Kelly's statements were otherwise supported by evidence in the record or testimony by witnesses, and that other commissioners were not influenced by Kelly's actions, and that the other county commissioners were of equal station to Kelly, the court concluded that there was "no unacceptable risk that his opinion carried disproportionate weight." Therefore, the court concluded that: (1) Kel- ly's opinions did not affect the outcome of the proceeding; and (2) invalidating Kelly's voted was sufficient to preserve the Hansons' due process rights by putting them in the same position they would have been in had Kelly not participated in the hearing. See also: Armstrong v. Turner County Bd. of Adjustment, 2009 SD 81, 772 N. W.2d 643 (S.D. 2009). See also: Northwestern Bell Telephone Co., Inc. v. Stofferahn, 461 N. W.2d 129, 118 Pub. Util. Rep. 4th (PUR) 77 (S.D. 1990). © 2014 Thomson Reuters 11