P & Z: No jurisdiction to decide, no errors made

By Julie Ann Madden

At a special Union County Planning & Zoning meeting Jan. 8, the board unanimously found that Land Use Administrator-Planning Director Dennis Henze had made no errors and they did not have jurisdiction to hear an appeal of meeting law violations. The Save Union County Committee has alleged the Planning & Zoning’s Jan. 10  and Jan. 16 meeting dates were set in violation of both county and state law.  At the Dec. 20 Planning & Zoning meeting, it was announced that Henze had set a public hearing regarding Hyperion Refining LLC’s rezoning application for 7 p.m. Jan. 16 at the Elk Point-Jefferson School. At this hearing, Hyperion officials would explain their application. Days later, Save Union County Committee members learned that Hyperion officials would not be presenting at the Jan. 16 public hearing but would be meeting with Planning & Zoning Commission members on Jan. 10, and the public would not be allowed to speak or ask questions at that time. The Committee alleged that the Jan. 16 public hearing was set by Henze without a meeting of the Planning & Zoning to do so. In addition, the Jan. 10 “hearing” was set without 10 days notice of publication, and South Dakota law states: “At a public hearing, any person may appear and request or protest the requested change.” They requested that both hearings be stayed until proper and legal notice was given by the Commission. At the special Planning & Zoning Commission meeting on Jan. 8, Save Union County Committee’s attorney James Abourezk requested to ask questions about those two dates; however, States Attorney Jerry Miller responded, “The board’s duty is to make a decision; it’s not a time to take public input.” When Abourezk said he’d be asking questions only of Henze, Miller responded, “This is not a meeting at this time by the Board of Adjustment.” “The (Planning & Zoning) Board has allowed you the opportunity to put on evidence and put on your case,” said Miller. “So, at this point, this board can make a decision. I don’t believe asking Mr. Henze questions at this point would be appropriate.” Miller said Abourezk had presented a document of facts to the board and been asked if he wanted to present more information at the beginning of the meeting.  Miller explained this was not a hearing but “a meeting of the Planning & Zoning to determine whether or not they had jurisdiction to move forward as the Board of Adjustment.” Abourezk insisted Chairman Bob James tell him he was being denied the opportunity to question Henze. “I will make that decision,” said James, “that we are denying you any further questions. Your comments to us were very welcomed, and that’s what I asked for initially.” The meeting continued in a court hearing-type fashion with the board members asking Henze questions. Abourezk did interrupt to ask questions until Miller said there wasn’t a statute that allowed him to do so. There are three ways meetings are called, according to Board Member Dan Fullenkamp: 1) James calls the members; 2) Henze tells them they have business such as plats to review; and 3) Henze administratively chooses a date. No meetings are held to set meeting dates. Henze explained he followed “normal procedures” after receiving Hyperion’s rezoning application on Dec. 6. He set the public hearing for 7 p.m. Jan. 16 at the Elk Point-Jefferson School. In addition, he had notice published in the legal newspapers and the board members were informed of the meeting. He told the board he also set the Jan. 10 meeting. “Save Union County felt that no official presentation had been given by Hyperion with their application for this rezoning process,” said Henze. “So, to facilitate that request I called a special meeting.”  Another thing this accomplished was to remove Hyperion from the agenda on the night of the Jan. 16,” said Henze. “Hyperion was going to give their presentation at that time. By removing them from the agenda on the 16th, it gave the public more time for input on that.” According to Henze, the Jan. 10 date was a “meeting,” not a hearing. Therefore, there wasn’t a 10-day publication notice requirement. However, he said he did publish a meeting notice “as a public service to let people know” when the meeting was. 

The board considered two laws:

• Union County Zoning Ordinance Article 20, Section 2002: Powers and Jurisdiction Relating to Administrative Review. The County Planning Commission shall have the power to hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official or agency based on or made in the enforcement of any zoning regulation or any regulation relating to the location or soundness of structures or to interpret any map.

• South Dakota Codified Law 11-2-53: Powers of board of adjustment. The board of adjustment may 1) hear and decide appeals if it is alleged there is error in any order, requirement, decision or determination made by an administrative official in the enforcement of this chapter or any ordinance adopted pursuant to this chapter; and 2) Authorize upon appeal in specific cases such variance from terms of the ordinance as will not be contrary to public interest, if, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship and so that the spirit of the ordinance is observed and substantial justice done.

Board Member Dale Neely made a motion, reading from a piece of paper, “No error was made. Commission lacks jurisdiction to decide this matter, and Land Use Administrator Dennis Henze has made no appealable decision in the enforcement of this chapter or any ordinance adopted pursuant to this chapter.” Board Member Jerry Eilers seconded it. “Did you have this motion prepared before you heard the evidence?” asked Abourezk. “Not really,” said Neely. “But it was an administrative action, not an error. (Section 2002) states it needs to be an error in those three parts he read off.” Abourezk asked about the seven days of notice instead of 10 days. “Jan. 10 didn’t need to be published,” said Neely. James called for a vote, which was unanimous with all five Planning & Zoning members present. Then Eilers requested a committee be formed to work with Miller to prepare their position for an appeal to their decision. Neely and Fullenkamp volunteered.  “They found a creative way to describe what they have done or have not done in a way they didn’t think they had to take action,” said Save Union County Committee representative Ed Cable after this meeting adjourned. “They had apparently decided that long before they came to the meeting because it was convenient that they already had the meeting typed out.” “It wasn’t a fair hearing today,” he said. “They wouldn’t let ask questions or even present facts to help them make a decision. Obviously, they already had a decision made up so we will take appropriate action through the courts.” When asked if he was surprised that Henze had said the Jan. 10 hearing was set at his committee’s request, Cable responded, “It was the first time we’d heard anything like that.”  “If was necessary and appropriate for Hyperion to be a part of the Jan. 16 meeting, which required 10 days notice, why would it be any different for a meeting that you moved their presentation to?” he added.  When asked why Hyperion’s public hearing was going to be different from other public hearings of the Planning & Zoning Commission, Henze responded that they could be held either way according to statutes.  To date, public hearings The Akron Hometowner has attended  included the applicants and general public at Union County Planning & Zoning meetings. Residents as well as board members asked the applicant questions and shared their views before the board made any decision. “Hyperion will make no presentation for public knowledge at the hearing,” said Union County resident Liz Merrigan, “but there will be at a meeting on Jan. 10 where the public cannot give input, and the general public, since it is held (at 4 p.m.) in the afternoon will not have access Hyperion’s presentation. The general public, in essence, will have no possibility of hearing Hyperion’s presentation upon its application.” “I think that is appalling,” said Merrigan, “and a breach of trust of the public by the Planning & Zoning Commission and the Commissioners.”     

Updated Information

Save Union County Committee filed an appeal with the Circuit Court on Jan. 9, at which Circuit Court Judge Steven Jensen did not order a stay of the Jan. 10 and Jan. 16 meetings but set an appeal hearing for 3 p.m. Tuesday, Jan. 22 in Union County Court.

On Jan. 10, Save Union County Committee made a second appeal to Jensen, who did not take any action to stay the meetings. At the end of Hyperion’s presentation on Jan. 10, the Planning & Zoning Commission asked Hyperion officials to give information a second time at the Jan. 16 public hearing.  Hyperion officials agreed to do so. Editor’s Note: See articles in the Jan. 16 edition of The Akron Hometowner.