Armstrong v. Turner County Board of Adjustment, 2009 SD 81

Summary

The South Dakota Supreme Court reviewed a challenge to the Turner County Board of Adjustment’s approval of a conditional use permit for a commercial grain storage facility. The Court held that the homeowners were denied due process because Board member Lyle Van Hove had a disqualifying interest arising from his prior involvement in the dispute as a county commissioner. The Court reversed the circuit court’s denial of the writ of certiorari.

Holdings

1. A member of a county board of adjustment conducting a quasi-judicial conditional-use-permit proceeding must be disinterested and free from actual bias, an unacceptable risk of actual bias, or prejudgment. Van Hove's prior efforts as a county commissioner to protect the county from potential liability and negotiate a resolution, followed by his participation in the Board proceeding and motion to approve the permit, created an unacceptable risk of bias and required his disqualification.
2. When a board member's disqualifying interest violates the parties' due process right to a fair and impartial adjudication, the permit must be vacated and the matter remanded for a new hearing before a neutral board without the disqualified member's participation.

Questions Presented

1. Whether the Homeowners were denied due process because Lyle Van Hove participated as a Board of Adjustment decision maker despite his prior involvement in the dispute and potential interest in the county's liability.
2. Whether the Board exceeded its authority by failing to comply with the county zoning ordinance's requirement concerning compatibility with adjoining property.

Disposition

reversed_and_remanded