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Conditional use permit appeals would be under single standard

PIERRE -- State courts shall use one standard when reviewing conditional use permits in South Dakota, the state Senate decided Thursday. Senators voted 22-13 for courts to use a writ of certiorari standard, regardless of the body that approved th...

PIERRE - State courts shall use one standard when reviewing conditional use permits in South Dakota, the state Senate decided Thursday.

Senators voted 22-13 for courts to use a writ of certiorari standard, regardless of the body that approved the permit.

The House of Representatives approved the change 44-20 Feb. 20.

Next stop for HB 1292 is the desk of Gov. Dennis Daugaard for review and a decision whether it becomes law.

Sen. Art Rusch, R-Vermillion, said a certiorari review looks at whether the approving body correctly followed the process.

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South Dakota has been using three different processes for appeals, depending on who approved the conditional use permit.

The retired circuit judge said state courts sometimes use the de novo standard for review. He said that essentially means conducting a new trial.

In a 2009 decision, the South Dakota Supreme Court said the Legislature created the problem in 2004.

Conditional use permits in rural areas often have been for projects such as concentrated animal feeding operations and wind farms.

They sometimes aren't issued consistently.

"Right across the county line there could be completely different procedures," Rusch said.

Sen. Craig Kennedy, D-Yankton, said the appropriate standard of review was de novo. One of Kennedy's point was local boards usually don't have judicial training.

"That's not to fault them. They're people like us," Kennedy said.

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Sen. Gary Cammack, R-Union Center, defended Rusch. The senators sit at adjoining desks. Cammack said a yes vote was for "local control."

But Sen. Stace Nelson, R-Fulton, said Hanson County's zoning board was "flim-flammed" over a 7,000-cow dairy farm.

"This right here is a mistake," Nelson said.

Rusch presented his closing argument.

"All we're trying to do here is get one consistent standard of review," Rusch said.

He added, "I think people need to put their trust in the local board and if they can't trust the local board, elect somebody different."

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