644 N.W.2d 231 (S.D. 2002), 22124, Vitek v. Bon Homme County Bd. of Com'rs

Docket Nº:22124.
Citation:644 N.W.2d 231, 2002 SD 45
Opinion Judge:[7] The opinion of the court was delivered by: Sabers, Justice
Party Name:Duane VITEK, Michael Neth, Sandy Neth, Steven Neth, and Sharon Neth, Petitioners and Appellants, v. BON HOMME COUNTY BOARD OF COMMISSIONERS, Eugene Kokesh, Allen Sternhagen, John Fathke, John Pesek, Russell Jelsma, and Linda Pesek, Bon Homme County Auditor, Respondents and Appellees.
Attorney:[6] James G.Abourezk Abourezk Law Offices, P.C. Sioux Falls, South Dakota
Case Date:April 24, 2002
Court:Supreme Court of South Dakota
 
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Page 231

644 N.W.2d 231 (S.D. 2002)

2002 SD 45

Duane VITEK, Michael Neth, Sandy Neth, Steven Neth, and Sharon Neth, Petitioners and Appellants,

v.

BON HOMME COUNTY BOARD OF COMMISSIONERS, Eugene Kokesh, Allen Sternhagen, John Fathke, John Pesek, Russell Jelsma, and Linda Pesek, Bon Homme County Auditor, Respondents and Appellees.

No. 22124.

Supreme Court of South Dakota

April 24, 2002.

Considered on Briefs Feb. 11, 2002.

Page 232

James G. Abourezk, Abourezk Law Offices, P.C., Sioux Falls, South Dakota, Attorney for petitioners and appellants.

Lisa Z. Rothschadl, Bon Homme County State's Attorney, Tyndall, South Dakota, Attorneys for respondents and appellees.

SABERS, Justice.

[¶ 1.] Duane Vitek, Michael Neth, Sandy Neth, Steven Neth and Sharon Neth (Vitek) applied for a writ of mandamus to compel the Bon Homme County Board of Commissioners (County) to submit to a vote of the qualified electors of the county a referendum regarding a variance granted by County for the construction and operation of a hog confinement facility. The First Circuit Court denied a writ of mandamus and we reverse and remand.

FACTS

[¶ 2.] On April 26, 2001, the Bon Homme County Board of Adjustment (Board) granted a variance to Leo and Linda Pederson (Pederson), allowing them to construct a hog confinement facility in Bon Homme County. The state's attorney for Bon Homme County prepared findings of fact and conclusions of law which Board adopted on May 25. On June 28, County held a hearing regarding Board's decision to grant the variance. County affirmed the decision and adopted Board's findings of fact and conclusions of law, which were later published on July 25. On July 27, Vitek filed a direct appeal to the First Judicial Circuit.

[¶ 3.] On August 13, 723 citizens of Bon Homme County signed petitions with the county auditor seeking a referendum vote.

Page 233

On August 21, County voted unanimously to reject the petitions. County stated its action of granting the variance was a quasi-judicial administrative decision and thereby not subject to the referendum process set forth in SDCL 7-18A-15.1.

[¶ 4.] On August 29, Vitek filed an application for writ of mandamus with the First Judicial Circuit. Vitek sought to compel County to submit its decision regarding the variance to a vote. The circuit court denied the writ on September 7, because Vitek had an adequate remedy at law in the form of a direct appeal to a circuit court under SDCL 7-8-27. The circuit court further stated that the appeal constituted Vitek's exclusive remedy under SDCL 7-8-32.

STANDARD OF REVIEW

[¶ 5.] The grant or denial of a writ of mandamus is discretionary. Baker v. Atkinson, 2001 SD 49, ¶ 12, 625 N.W.2d 265, 269-70; Willoughby v. Grim, 1998 SD 68...

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