Schrank v. Pennington County Board of Commissioners , 1998 S.D. LEXIS 111 ( 1998 )

MILLER, Chief Justice (on reassignment).

[¶ 1.] In this appeal we affirm the circuit court’s reversal of the county’s granting of a conditional use permit to a drilling company.

FACTS

[¶ 2.] Alexander Drilling and Garry Schrank are neighbors in an area of Hill City zoned “Highway Service” under the Pennington County Zoning Ordinance. Schrank operates a campground. Alexander, who owns a fourteen-acre parcel of land, operates a drilling service and makes some retail sales of water pumps and pressure tanks. In 1996, Pennington County determined Alexander’s use of the property was in technical violation of the Highway Service District zoning guidelines. Alexander then applied for a conditional use permit. The Pennington County Planning Commission staff recommended approval of the permit with several conditions. On July 16, 1996, County approved the permit for Alexander, notwithstanding the objections of Sehrank, who was present at the hearing. On August 1, the conditional use permit was published. On August 2, Sehrank appealed County’s decision to the circuit court, with notice of the appeal served on one of County’s board members. No notice of the appeal was served on Alexander.

[¶ 3.] On September 4, Alexander moved to intervene and to dismiss the appeal. The circuit judge denied the motion to dismiss, but granted Alexander the right to continue in the lawsuit to protect his interests. On August 25, 1997, the trial court reversed County’s decision.

[¶ 4.] Alexander and County appeal, raising the following issues:

[¶ 5.] 1. Whether the appeal from the County decision should have been dismissed for failure to make timely service on Alexander.

[¶ 6.] 2. Whether County acted lawfully in granting a conditional use permit to Alexander.

DECISION

[¶ 7.] 1. The trial court did not err in refusing to dismiss the appeal for failure to personally serve Alexander.

[¶ 8.] Alexander and County argue that the trial court lacked jurisdiction in this case becadse Alexander was not personally served with the notice of appeal. We disagree.

[¶ 9.] This appeal was brought under SDCL 7-8-29, which provides, in relevant part, that “[sjuch appeal shall be taken within twenty days after the publication of the decision of the board by serving a written notice on one of the members of the board [.] ”¹ (Emphasis added). That statutory language plainly and clearly provides that notice be served on “one of the members of the board.” In this case such notice was given, and thus, the statute was followed. It is important to remember that Sehrank was not statutorily required to serve notice on Alexander.

[¶ 10.] Because the statute was strictly followed, there was no lack of subject matter jurisdiction. The Supreme Court of Connecticut, when faced with a situation similar to the present one, held:

[I]t is clear that the failure initially to join one whose presence is essential for a complete adjudication of an administrative appeal is a defect not involving subject matter jurisdiction]!] Only when the statute authorizing the appeal requires a designated person to be made a party does the failure to do so constitute noncompliance with its terms and thus involve subject matter jurisdiction.

Fong v. Planning and Zoning Bd. of Appeals, 212 Conn. 628, 563 A.2d 293, 298 (1989) (emphasis added)² (citing Simko v. Zoning Bd. of Appeals, 205 Conn. 413, 533 A.2d 879 (1987)); see also C.E. Alexander & Sons, Inc. v. DEC Int’l, Inc., 112 N.M. 89, 811 P.2d 899 (1991) (holding that the test of indispensability of a party is not a jurisdictional one). We agree with the rationale of the Connecticut court, and hold that there could be no lack of subject matter jurisdiction because the notice statute was strictly followed in the present case.

[¶ 11.] Alexander and County principally rely on our decision in Lyman County v. Bd. of Comm’rs, 14 S.D. 341, 85 N.W. 597 (1901). In that case we were looking at a predecessor statute to SDCL 7-8-29, and held that the circuit court lacked jurisdiction because the claimant was never served, even though the statute did not require that he be served. Id. at 346, 85 N.W. at 598. However, that case dealt with a lack of personal jurisdiction, not subject matter jurisdiction. Therein we held:

[T]he claimant was not notified of the appeal to the circuit court, and ... he was not notified of the appeal from that court to this, it [therefore] follows that neither the circuit court nor this court ever acquired jurisdiction of the claimant’s person, or had authority to hear and determine his right to the compensation alleged to be due him from Lyman county.

Id. (emphasis added).

[¶ 12.] Lyman County does not apply. Here, there is no claimed defect in personal jurisdiction. Alexander sought and was permitted to intervene under SDCL 15-6-24(a). Therefore, the circuit court clearly had personal jurisdiction over him. See Ruden v. Dalkin & Dalkin, 62 S.D. 66, 251 N.W. 807 (1933).

[¶ 13.] Alexander and County also raise due process concerns. Their arguments totally lack merit. “[D]ue process requires only reasonable notice and an opportunity to be heard at a ‘meaningful time and in a meaningful manner.’” S.B. Partnership v. Gogue, 1997 SD 41, ¶16, 562 N.W.2d 754, 758-59 (quoting Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18, 32 (1976) (other citation omitted)). Alexander was provided adequate due process as he was allowed to intervene on appeal to the circuit court and present his argument. The purpose of the notice requirement was met and all the parties were given the opportunity to be heard. Alexander has not shown how he was prejudiced by not being served with notice.

[¶ 14.] 2. County did not act lawfully in granting a conditional use permit to Alexander.

[¶ 15.] Alexander and County first take issue with the standard of review applied by the circuit court. SDCL 7-8-30 provides that all appeals taken to the circuit court from a decision by the county board “shall be heard and determined de novo.” We held in Sioux Valley Hosp. v. Jones County, 309 N.W.2d 835, 837 (S.D.1981), that this standard means “the circuit court should determine anew the question ... independent of the county commissioner’s decision.” We have also held in regards to SDCL 7-8-30 that “the trial court should determine the issues before it on appeal as if they had been brought originally. The court must review the evidence, make findings of fact and conclusions of law, and render judgment independent of the agency proceedings.” Keogan v. Bergh, 348 N.W.2d 462, 464 (S.D.1984).

[¶ 16.] This was the standard applied by the circuit court. Alexander and County claim that it was incorrect, relying on what we have held a “trial de novo” means in the context of appeals from school boards. See Moran v. Rapid City Area School Dist., 281 N.W.2d 595 (S.D.1979); Dunker v. Brown County Bd. of Educ., 80 S.D. 193, 121 N.W.2d 10 (1963). In those cases we held that a “trial de novo” must be considered differently than an actual de novo review because of the doctrine of separation of powers. We held:

A trial de novo ... is not a trial de novo in the true sense of the phrase. It is a limited type of hearing at which the circuit court takes evidence and hears testimony solely for the purpose of determining the legality, and not the propriety, of the school board’s decision.... It differs from a true trial de novo in that the court may not substitute its judgment for that of the school board, and the court need not justify the school board’s decision by a preponderance of the evidence received.

Moran, 281 N.W.2d at 598 (citations omitted).

[¶ 17.] The trial court did not err. Alexander and County strain to twist what was really decided in this case: Did County act unlawfully? That is a question of law. The circuit court took evidence and determined that County did act unlawfully. It was not determining the propriety of County’s decision, but rather its legality. See id.

[¶ 18.] Alexander and County also cite to our case of Olson v. City of Deadwood, 480 N.W.2d 770, 774-75 (S.D.1992), to show a similar standard of review as between school boards and municipal boards of adjustment. The Olson case adopted a standard that was dicta in Graves v. Johnson, 75 S.D. 261, 63 N.W.2d 341 (1954). In Graves we held:

As to a decision by a board of adjustment made pursuant to the provisions of [SDCL 11-4-25 through 29], the question on a review is whether an order of the board is supported by substantial evidence and is reasonable and not arbitrary. No such issue as to the discretion of the board arises under the facts here presented. The board had no power to permit a prohibited use, that being a legislative power vested only in the city commission.

Id. at 266, 63 N.W.2d at 344.

[¶ 19.] Likewise, what was at issue in the present case was the legality of County’s decision. It was not a question of discretion, but a question of law.

[¶ 20.] “Zoning regulations are generally interpreted according to the rules of statutory construction and they may also be subject to rules of construction included in the regulations themselves.” Cordell v. Codington County, 526 N.W.2d 115, 117 (S.D.1994) (citing 83 Am. Jur.2d Zoning and Planning § 698 (1992)). In interpreting statutes, we are to give words and phrases their plain meaning and effect. Petition of Famous Brands, Inc., 347 N.W.2d 882, 885 (S.D.1984). County’s zoning ordinance also provides that the words used in it are “to be understood in their ordinary sense[.]” The meaning of terms in a zoning regulation is a matter of law for the court. Cordell, 526 N.W.2d at 117.

[¶ 21.] Alexander’s drilling service is located in an area zoned “Highway Service” (HS), as defined in section 210 of the Pennington County Zoning Ordinance. Section 204F of the ordinance discusses conditional uses as follows:

Within each district there are certain uses which are permitted as a conditional use in accordance with the provisions contained in Section 510 — Conditional Use Permits. The listed conditional uses under each district are illustrative of those which the Commission and the Board may approve temporarily, pei’manently, or for a specific time interval. Other uses may be allowed which are not listed provided they are not contrary to the intent of the district in which they are to be located. (Emphasis added.)

[¶ 22.] The intent of an HS district is “to establish areas for highway-oriented business and to provide development standards that will not impair or obstruct the traffic carrying capabilities of abutting roads and highways.” Permitted uses include such things as hotels, restaurants, retail businesses, and commercial recreation and amusement structures. There are also listed examples of conditional uses which include: “(1) Golf driving ranges; (2) drive-in theaters; (3) racetracks; and (4) other highway oriented businesses which are not listed but which the Commission may determine meet the intent of the highway service district. This shall not be construed to include general commercial activities which more appropriately fit the general commercial district.”

[¶23.] The circuit court did not err in determining that Alexander’s business was not a permissible conditional use for an HS district. It appears that Alexander’s business is one that meets the criteria for a Light Industrial District (LI). An LI district includes things such as manufacturing, wholesaling, distributing, warehousing, bulk storage, building materials sales yard, contractor’s equipment storage yard, and a freight or truck yard, etc.

[¶ 24.] Alexander operates an off-site well drilling business in which heavy equipment is used. While it does involve some retail sales, such activity constitutes ten percent or less of his business. His property’s main use is as a terminal for heavy equipment, a bulk storage yard for pipe, a warehouse for equipment and materials, and a truck and equipment yard. On two separate occasions Alexander sought to have the district rezoned to an LI district. County refused to rezone the district and even indicated that Alexander’s use of the property is such as would normally be permitted in an LI district. By looking at the fisted permitted uses and conditional uses, the intent of an HS district can be seen. Not only does Alexander’s operation not meet the intent of an HS district, it appears to be repugnant thereto.

[¶ 25.] The residents of Pennington County have a right to rely on the protections provided them by the zoning ordinance. See Save Centennial Valley Ass’n, Inc. v. Schultz, 284 N.W.2d 452, 457 (S.D.1979). County cannot disregard the clear intent of the zoning ordinance by placing this well drilling business in an HS district where it clearly does not belong. See id. County exceeded its jurisdiction by ignoring this intent. See id. We affirm the circuit court in all respects.

[¶ 26.] Affirmed.

[¶ 27.] KONENAMP and GILBERTSON, JJ., concur. [¶ 28.] AMUNDSON, J„ and MARTIN, Circuit Judge, dissent. [¶ 29.] MARTIN, Circuit Judge, sitting for SABERS, J., disqualified.

1 . Interpretation of a statute is a question of law we review de novo. Moss v. Guttormson, 1996 SD 76, ¶ 10, 551 N.W.2d 14, 17. We will give a statute its plain and ordinary meaning when possible. In re Estate of Gossman, 1996 SD 124, ¶ 6, 555 N.W.2d 102, 104.

2 . Connecticut has since amended its notice statute to require service of process on an applicant whose "rights, duties or privileges were determined by the board whose decision has been appealed.”