HB 1140: Taking Last Year’s HB 1201 and Making It Worse

by Catherine Carter

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

HB 1140 is up for a hearing in House Local Government Thursday, February 11, at 10am CT. Email legislators on the committee and ask them to vote NO:

Section 4 of HB 1140 refers last year’s HB 1201, which lowered the minimum vote required for county boards of adjustment to approve conditional use permits. In the past, 2/3 of the members of the board of adjustment were required, by state law, to approve a conditional use permit (required for CAFOs, etc.). However, last year the legislature passed an amendment (HB1201) that allowed counties to change their ordinance so that only a simple majority is required. The problem with allowing a simple majority to approve a conditional use is that there is no appeal of a board of adjustment decision at the county level. The board of adjustment is considered a quasi-judicial board. Its members are appointed (by the county commissioners), not elected. Board of adjustment decisions are considered administrative. Unlike county commission decisions, board of adjustment decisions are not referable, and cannot be appealed to the county commission. Appeals can only be made to the district court, and in board of adjustment cases the court only evaluates whether the board made any errors of procedure (writ of certiorari standard), not whether they failed to consider important evidence or made an error of judgment. So the standard for board of adjustment decisions was justifiably set higher than for an elected board.

So far, most counties have not adopted the simple-majority rule. If they were to do so, such an amendment to the ordinance would have to be passed by the county commissioners, with a public hearing and the right to referendum; unless, as provided by the change to SDCL 11-2-30 as specified in HB1140 Section 1 (above), they decide to characterize such a change as “minor”.

In some counties, the county commission also serves as the board of adjustment. Section 5 of HB 1140 confirms that when that is the case, the exceptions allowing a simple majority vote etc. (in 11-2-59) would apply to them as well.

The HB1140 amendments in Sections 7 through 9 are essentially the same as those above, but apply to municipalities, prohibiting appeals of “ministerial acts” (11-4-19, 11-4-20), and restricting the right to appeal a board of adjustment decision to citizens who are aggrieved, and requiring a $250 bond, etc. (11-4-25).

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