Grant County Concerned Citizens v. Grant County Board of Commissioners

#25681-a-DG
2011 S.D. 5IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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GRANT COUNTY CONCERNED
CITIZENS, Petitioner and Appellant,
v.
GRANT COUNTY BOARD OF
COMMISSIONERS, PAUL DUMMANN,
DAVID FORRETT, GENE MANN,
DOUG STENGEL, CLAYTON TUCHOLKE
and KAREN LAYHER, COUNTY AUDITOR, Respondents and Appellees.
* * * *
APPEAL FROM THE CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
GRANT COUNTY, SOUTH DAKOTA
* * * *
HONORABLE ROBERT L. TIMM
Judge
* * * *
SAM EBRAHIM KHOROOSI
Sioux Falls, South Dakota Attorney for petitioner
and appellant.
ZACHARY W. PETERSON
JACK H. HIEB of
Richardson, Wyly, Wise
Sauck & Hieb, LLP
Aberdeen, South Dakota Attorneys for respondents
and appellees.
* * * *
CONSIDERED ON BRIEFS
ON JANUARY 10, 2011
OPINION FILED 02/02/11
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GILBERTSON, Chief Justice
[¶1.] Grant County Concerned Citizens submitted a proposed amendment to
a zoning ordinance to the Grant County Board of Commissioners. After proceeding
through the proper procedures, the Board of Commissioners rejected the
amendment. The Board of Commissioners then denied a referendum petition by
Concerned Citizens to refer the proposed amendment to qualified county voters.
The circuit court denied the Concerned Citizens’ petition for a writ of mandamus to
compel the Board of Commissioners to refer the proposed amendment. Concerned
Citizens appeals the denial of the writ of mandamus.
FACTS
[¶2.] The parties stipulated to the facts. Grant County Concerned Citizens
(Petitioner) submitted, under SDCL 11-2-28, a proposed amendment to a zoning
ordinance that would increase the setbacks for Class A, B, C, and D Concentrated
Animal Feeding Operations.* The Grant County Board of Commissioners (Board)
referred the proposed amendment to the Grant County Planning and Zoning Board
for a recommendation. The Planning and Zoning Board held a public hearing on
the proposed amendment, received public testimony, deliberated, and unanimously
voted to recommend that the proposed amendment be rejected. At the next County
Commissioners’ meeting, the recommendation was presented and additional public
comments were received from both proponents and opponents of the proposed
* Petitioner also submitted a proposed amendment to include barns and
manure lagoons within the setback requirements. This amendment was
accepted by the Board and is not an issue on appeal.
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amendment. Board Chairman Paul Dummann moved to adopt the proposed
amendment and called for a second three times. The motion died for lack of a
second. After more discussion, Commissioner Clayton Tucholke moved to accept the
recommendation to reject the proposed amendment. The motion received a second
and carried 3-2.
[¶3.] Petitioner filed a petition with the Board under SDCL 11-2-22 and
SDCL §§ 7-18A-15 to -24 to refer the proposed amendment to a public vote. The
referral petition was signed by more than five percent of the registered voters, as
required by SDCL 7-18A-15. At the Board’s next meeting, the Board rejected the
referendum petition on the grounds that the matter was not referable. The Board’s
decision was published in the Grant County Review.
[¶4.] Petitioner filed for a writ of mandamus in circuit court. After the
parties stipulated to the facts and a hearing was held, the circuit court issued a
letter decision agreeing with the Board. The court later issued its findings of fact
and conclusions of law, denying the petition for a writ of mandamus and dismissing
the matter on its merits with prejudice. It held that the proposed amendment
rejected by the Board was not a legislative decision and was therefore not referable
to a referendum vote.
[¶5.] On appeal, Petitioner raises one issue:
Whether a proposed amendment to a zoning ordinance that is
rejected by a county commission is referable to the qualified
voters of the county.
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STANDARD OF REVIEW
[¶6.] This Court reviews the decision to grant or deny a writ of mandamus
under an abuse of discretion standard. Vitek v. Bon Homme Cnty. Bd. of Comm’rs,
2002 S.D. 45, ¶ 5, 644 N.W.2d 231, 233. This Court reviews questions of statutory
interpretation de novo. Discover Bank v. Stanley, 2008 S.D. 111, ¶ 15, 757 N.W.2d
756, 761 (citing Martinmaas v. Engelmann, 2000 S.D. 85, ¶ 49, 612 N.W.2d 600,
611).
ANALYSIS
[¶7.] We begin by briefly discussing the remedy of a writ of mandamus.
South Dakota law provides:
The writ of mandamus may be issued by the Supreme and
circuit courts, to any inferior tribunal, corporation, board, or
person, to compel the performance of an act which the law
specially enjoins as a duty resulting from an office, trust, or
station; or to compel the admission of a party to the use and
enjoyment of a right or office to which he is entitled, and from
which he is unlawfully precluded by such inferior tribunal,
corporation, board, or person.
SDCL 21-29-1. In addition, the “writ of mandamus must be issued in all cases
where there is not a plain, speedy, and adequate remedy, in the ordinary course of
law.” SDCL 21-29-2. Generally, mandamus is available to compel performance of
ministerial duties. Black Hills Cent. R.R. Co. v. City of Hill City, 2003 S.D. 152, ¶
14, 674 N.W.2d 31, 34. In order to prevail, Petitioner must show a clear legal right
to submit the rejected amendment to the referendum process. See Bechen v. Moody
Cnty. Bd. of Comm’rs, 2005 S.D. 93, ¶ 9, 703 N.W.2d 662, 664; Vitek, 2002 S.D. 45, ¶
12, 644 N.W.2d at 235. Petitioner must also show that the Board has a definite
legal obligation to submit the rejected amendment to the referendum process. The
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Board asserts, and the circuit court agreed, that the Board’s action of rejecting
Petitioner’s proposed amendment was not a legislative decision. Because it was not
a legislative decision, it cannot be submitted to the referendum process.
[¶8.] As noted in Vitek, “South Dakota, through its Constitution, ‘has
reserved the referendum power to the people.’” 2002 S.D. 45, ¶ 10, 644 N.W.2d at234 (citing Taylor Props., Inc. v. Union Cnty., 1998 S.D. 90, ¶ 24, 583 N.W.2d 638,
643). Article III, § 1 of the South Dakota Constitution provides in part:
[T]he people expressly reserve to themselves the right to propose
measures, which shall be submitted to a vote of the electors of
the state, and also the right to require that any laws which the
Legislature may have enacted shall be submitted to a vote of the
electors of the state before going into effect.
“This sacred right is also specifically extended to the issue of county comprehensive
plans and adjuncts thereto by SDCL 11-2-22.” Vitek, 2002 S.D. 45, ¶ 10, 644
N.W.2d at 234 (citing Taylor Props., 1998 S.D. 90, ¶ 24, 583 N.W.2d at 643).
[¶9.] The procedure Petitioner followed in attempting to amend the zoning
ordinance is outlined in SDCL 11-2-28. See Schafer v. Deuel Cnty. Bd. of Comm’rs,
2006 S.D. 106, ¶ 14, 725 N.W.2d 241, 247 (“SDCL 11-2-28 is specific to zoning . . .
[and] controls amendments to zoning ordinances. . . .”). SDCL 11-2-28 provides in
part:
The plan, ordinances, restrictions, and boundaries adopted
pursuant to this chapter may be amended, supplemented,
changed, modified, or repealed by action of the board. Any such
modification or repeal shall be proposed in a resolution or
ordinance, as appropriate, presented to the board for adoption in
the same manner and upon the same notice as required for the
adoption in the original resolution or ordinance. The
amendment, supplement, change, modification, or repeal may be
requested through a petition by twenty percent of the
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landowners in the zoning district or districts requesting
change[.]
Petitioner complied with the proper procedure for submitting an amendment of the
ordinance.
[¶10.] SDCL 11-2-30 provides, “After the hearing, the board shall by
resolution or ordinance, as appropriate, either adopt or reject the amendment,
supplement, change modification, or repeal. . . . The provisions of § 11-2-22 are
applicable to this section.” In this case, the Board rejected the proposed
amendment and then refused Petitioner’s attempt to refer the rejected amendment
to the referendum process. The circuit court held that “the rejection of a proposed
amendment of an ordinance enacts nothing. Rejection of a proposed amendment is
not a legislative decision referable under the plain meaning of South Dakota law.”
[¶11.] Although SDCL 11-2-22 is applicable to SDCL 11-2-30, the text of
SDCL 11-2-22 does not contemplate referring to the referendum process a proposed
amendment that was rejected by the Board. SDCL 11-2-22 provides:
The comprehensive plan, zoning ordinance, and subdivision
ordinance may be referred to a vote of the qualified voters of the
county pursuant to §§ 7-18A-15 to 7-18A-24, inclusive. The
effective date of the comprehensive plan, zoning ordinance, or
subdivision ordinance on which a referendum is to be held shall
be suspended by the filing of a referendum petition until the
referendum process is completed[.]
The language of the statute refers only to a “comprehensive plan, zoning ordinance,
and subdivision ordinance.” Petitioner is not seeking to refer any of these but
rather a rejected amendment to a zoning ordinance. By its terms, SDCL 11-2-22 is
not applicable.
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[¶12.] Even if the proposed amendment did fit into the actions listed in SDCL
11-2-22, the referral must be made “pursuant to [SDCL] §§ 7-18A-15 to 7-18A-24,
inclusive.” SDCL 7-18A-15 provides in part, “Any ordinance or resolution adopted
by a board of county commissioners may be referred to a vote of the qualified voters
of the county by the filing of a petition signed by five percent of the registered voters
in the county[.]” (Emphasis added.) We have previously stated that “SDCL 7-18A-
15 is clear and unambiguous and limits the referendum to ‘any ordinance or
resolution adopted by a board of county commissioners.’” Bechen, 2005 S.D. 93, ¶
17, 703 N.W.2d at 666. This statute contemplates an adoption of an ordinance or
resolution by the Board. The Board in this case rejected the proposed amendment.
[¶13.] Furthermore, SDCL 7-18A-15.1 places limits on the referendum
process. It provides in part:
Any legislative decision of a board of county commissioners is
subject to the referendum process. A legislative decision is one
that enacts a permanent law or lays down a rule of conduct or
course of policy for the guidance of citizens or their officers. Any
matter of a permanent or general character is a legislative
decision[.]
The circuit court cited to the definition of “legislative decision” in SDCL 7-18-15.1
and held that a rejection of a proposed amendment to an ordinance is not a
legislative decision because it enacts nothing.
[¶14.] Petitioner argues that the Board’s rejection of the proposed
amendment constitutes a legislative act. We disagree. In following the statutes
and their internal cross-references, the legislative intent is that only an affirmative
action effecting some change in an existing ordinance or the passing of a new
ordinance, as referenced in SDCL 7-18A-15, may be referred to a referendum vote.
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Only a decision by the Board that produced some change to the status quo of the
ordinance constitutes an “act” under the plain language of SDCL 7-18A-15.1.
Additionally, SDCL 7-18A-15.1 is nearly identical to SDCL 9-20-19, with the
exception that SDCL ch. 9-20 governs municipal government actions. In Wang v.
Patterson, 469 N.W.2d 577 (S.D. 1991), this Court discussed the distinction between
legislative and administrative decisions, noting that “all municipal action cannot be
subject to local review by the electorate. If government is to function there must be
some area in which representative action will be final.” Wang, 469 N.W.2d at 579
(additional citations omitted). We went on to state that “where discretion is left to
the local government as to what it may do, when the local government acts, it acts
legislatively and its actions are subject to normal referendum procedure.” Id. Once
again the language from Wang contemplates that the local government did act in
some way. The Board’s refusal in this case was not an act; it is, as the circuit court
held, nothing.
[¶15.] This must be the result because whether an act produces change or not
dictates what recourse is available for the proponents of the change, namely, a
petition for either an initiative or a referendum. This Court has long recognized the
distinction between initiative and referendum.
Initiative is the constitutional reservation of power in the people
to propose bills and laws and to enact or reject them at the polls
independent of the legislative assembly. Referendum, on the
other hand, is a right constitutionally reserved to the people of
the state or local subdivisions thereof to have submitted for their
approval or rejection any act, or part of any act, passed by the
legislature which in most cases would, without action on the part
of the electorate, become a law.
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Byre v. City of Chamberlain, 362 N.W.2d 69, 79 (S.D. 1985). See also Brendtro v.
Nelson, 2006 S.D. 71, ¶ 26, 720 N.W.2d 670, 679; Christensen v. Carson, 533 N.W.2d
712, 714 (S.D. 1995). Furthermore, “the purpose of referendum is to suspend or
annul laws which are not yet effective in order to provide the people a means of
expressing their desire regarding a legislative proposition.” Byre, 362 N.W.2d at 79.
This Court recognized in 1913 that “the exercise of the referendum . . . is in effect
the exercise of the veto power.” State ex rel. Wagner v. Summers, 33 S.D. 40, 50,
144 N.W.730, 732 (1913). Examining the procedure preceding a referendum vote
and the purpose of the referendum, it is clear that the proposed amendment cannot
be submitted to the referendum process because the Board rejected the proposal.
The proposed amendment is not a law or legislative proposition passed by the
Board. The public would be asked to vote on an amendment the Board had rejected,
a request that would be unknown in South Dakota history and against statutory
language.
CONCLUSION
[¶16.] Because the Board’s rejection of Petitioner’s proposed amendment was
not a legislative decision, it is not referable to the referendum process. The circuit
court’s denial of Petitioner’s application for a writ of mandamus is affirmed.
[¶17.] KONENKAMP, ZINTER, MEIERHENRY, and SEVERSON, Justices,
concur.
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