HB 1140, Part 2: Who Has the Right to Appeal?

by Catherine Carter

(This is the second post in a series about HB 1140. You can read the first post here.)

HB 1140 Section 2 amends SDCL 11-2-55 as follows (underlined): “11-2-55. Appeals An appeal to the board of adjustment may be taken by any person aggrieved or by any officer, department, board, or bureau of the county affected by any decision of the administrative officer, that is not a ministerial act or other preliminary act to bring an application or matter before the board for hearing and a final decision. ,”. and adds a line requiring consolidation of all appeals. Currently under SDCL 11-2-55, a citizen can appeal (to the planning and zoning board or board of adjustment) any decision of the county zoning officer. The HB 1140 amendment would limit appeals to actions based on the zoning officer’s judgment, and would preclude appeals of actions based on routine procedures. If, for example, the zoning officer did not provide sufficient, up-to-date and thorough background information on a proposed site in preparing a conditional use application or variance request for the board to examine, those deficiencies might not be eligible for appeal. The change from “Appeals” (plural) to “An appeal” (singular) also suggests that each person can only file one appeal on any given issue. The effects of the consolidation requirement are unclear.

HB 1140 Section 6 amends the first sentence of SDCL 11-2-61 to read: “Any person or persons, jointly or severally, aggrieved by any decision of the board of adjustment, or any taxpayer, or any officer, department, board, or bureau of the county, aggrieved by any decision of the board of adjustment may present to a court of record a petition duly verified…” This may at first appear to be an insignificant change merely shifting around the word order, but it would have a substantial and detrimental effect on citizens’ right to appeal. As the law currently stands, anyone who is aggrieved, or any taxpayer etc. in the county can appeal a board of adjustment decision to the court. This change would require that all the appellants prove that they are aggrieved, which is often difficult to demonstrate. Even strong evidence of potential damage from an operation may be dismissed as “speculative,” especially when a county has policies that encourage those operations in general. In LHIA et al. v. Brookings County et al., the respondents (Brookings County et al.) claimed that because the petitioners (LHIA et al.) could not show that they were aggrieved, they had no legal standing to make an appeal, and therefore the court should dismiss the case. If the language as amended by HB1140 were used, that may very well have happened. However, LHIA et al. successfully argued that the current language gave them standing, and so the case was allowed to proceed.

It is important to remember that decisions of a county board of adjustment cannot be appealed except by petition to the court. Citizens have other alternatives in appealing county commission decisions, but none in the case of boards of adjustment (SDCL 11-2-22, SDCL 7-8-28). Therefore, the right to appeal is appropriately extended in the current 11-2-61 to a less stringently qualified pool of citizens. HB 1140 would deprive these citizens of the right to appeal.

HB 1140 also adds, at the end of 11-2-61, a requirement for a bond of $250 for a citizen to file a petition to the court appealing a board of adjustment’s decision, plus sureties (additional guarantees of payment), and the commitment to proceed without delay and to pay any costs resulting from the appeal, as ordered by the court. Although under current law any citizen challenging a board of adjustment decision is already contemplating large and possibly prohibitory expenses, and current law against frivolous lawsuits applies, this amendment imposes new, costly, and intimidating requirements for any citizen wishing to challenge a board of adjustment’s decisions. For some, the initial $250 bond may prevent an appeal. For all, it is an intimidating reminder of the potential economic costs of challenging a board of adjustment decision.

Advertisements

Trackbacks

  1. […] (Note: This is part three in a series on HB 1140. Part one is here, and part two is here.) […]

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: