Archive for November, 2014

Certiorari is a Tough Nut to Crack #43 – O’Connor v. Buffalo County Board of Adjustment

Wednesday, November 26th, 2014

In a recent unpublished case concerning a frac sand mine, Micheal O’Connor and the School District of Cochrane-Fountain City appealed a decision by the Buffalo County Board of Adjustment (BOA) to grant a conditional use permit for a frac sand mine. The circuit court upheld the decision of the BOA, and O’Connor and the School District appealed. They relied on three avenues to challenge the BOA decision.

First, they argued that the Buffalo County’s zoning ordinance does not allow sand mining as a conditional use in the agricultural zoning district. The BOA pointed to a provision in their zoning code which they claimed does allow sand mining as a conditional use in that zoning district. Following long standing precedent, a reasonable interpretation of an ordinance by a municipality (or county in this case) is presumed to be the correct interpretation, even if another reasonable explanation can be made.  Here the Appeals Court found Buffalo County’s interpretation quite reasonable, and supported by consistent past precedent.

Second the plaintiffs argued that since the BOA had previously denied a similar application by the same company for the same sand mine, the BOA was precluded from considering the application again. However, the Appeals Court quickly concluded that there is no supporting law preventing someone from applying for a conditional use permit, getting denied, and then applying again with additional supporting evidence.

Lastly, the plaintiffs claimed that since the conditional use application did not name all of the partners in the company which owned the land, the application was invalid. The Appeals Court made short work of this last argument.  There is no law that requires a partnership company to name all of its partners when applying for conditional use permits.

Just because there is an alternative reasonable position to be made, Courts are reluctant to overturn a reasonable, lawful municipal decision. As I have noted in previous writings, it is an uphill battle to get a Court to overturn an otherwise reasonable decision by a municipality, especially on certiorari review.