730 N.W.2d 411 (S.D. 2007), 24134, Jensen v. Turner County Bd. of Adjustment

Docket Nº:24134.
Citation:730 N.W.2d 411, 2007 SD 28
Opinion Judge:ZINTER, Justice
Party Name:Jace JENSEN, Petitioner and Appellant, v. TURNER COUNTY BOARD OF ADJUSTMENT, Jerry Graber, Ken Plucker, Jr., Ralph Duxbury, Richard Lounsbery, and Ryan Wieman, Respondents and Appellees, and ET Farms, Ltd., Intervenor.
Attorney:Jack Der Hagopian, James G. Abourezk of Abourezk Law Offices, Sioux Falls, SD, Attorneys for petitioner and appellant., Tiffani Landeen-Hoeke, Turner County State's Attorney, Parker, SD, Attorney for appellee., Brian Donahoe, Meredith Moore of Cutler & Donahoe, L.L.P., Sioux Falls, SD, Attorneys ...
Case Date:March 14, 2007
Court:Supreme Court of South Dakota
 
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Page 411

730 N.W.2d 411 (S.D. 2007)

2007 SD 28

Jace JENSEN, Petitioner and Appellant,

v.

TURNER COUNTY BOARD OF ADJUSTMENT, Jerry Graber, Ken Plucker, Jr., Ralph Duxbury, Richard Lounsbery, and Ryan Wieman, Respondents and Appellees,

and

ET Farms, Ltd., Intervenor.

No. 24134.

Supreme Court of South Dakota

March 14, 2007

Considered on Briefs Jan. 8, 2007.

Rehearing Denied April 17, 2007.

Page 412

Jack Der Hagopian, James G. Abourezk of Abourezk Law Offices, Sioux Falls, SD, Attorneys for petitioner and appellant.

Tiffani Landeen-Hoeke, Turner County State's Attorney, Parker, SD, Attorney for appellee.

Brian Donahoe, Meredith Moore of Cutler & Donahoe, L.L.P., Sioux Falls, SD, Attorneys for intervenor ET Farms, Ltd.

ZINTER, Justice

[¶ 1.] Jace Jensen appeals a decision of the Turner County Board of Adjustment (Board) granting a conditional use permit for a hog confinement facility. Jensen contends that the Board vote was illegal because less than two-thirds of the members of the Board voted to approve the permit. We agree and reverse.

Facts and Procedural History

[¶ 2.] The Board consisted of five members plus one alternate. See SDCL 11-2-50. 1 Two members did not cast affirmative or negative votes on the permit. The record is inadequate to determine precisely why they did not vote. 2 The briefs indicate that the acting chairman (a regular member) abstained due to a Board custom that the chair only voted in case of a tie. 3 The Board ultimately granted ET Farms, Ltd. a conditional use permit by a vote of three to zero.

[¶ 3.] Jensen challenged the Board's decision by seeking a writ of certiorari in circuit court. The circuit court dismissed, ruling that although SDCL 11-2-59 required a two-thirds vote, the statute did not apply to votes on conditional use permits; that if the statute did apply, the required two-thirds vote only applied to the Board members who were present and voting; or alternatively, that a Turner County ordinance, which only required a majority vote, controlled. 4 Jensen appeals raising two issues:

1. Whether SDCL 11-2-59 applies to the approval of conditional use permits by a board of adjustment.

2. If SDCL 11-2-59 applies, whether it requires the affirmative vote of two-thirds of the total membership of a board of adjustment to grant a conditional use permit.

Standard of Review

[¶ 4.] Appeals from boards of adjustment are considered by circuit courts

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under writs of certiorari, and therefore, judicial review is limited. Elliott v. Board of County Commissioners of Lake County, 2005 SD 92, pp 13-14, 703 N.W.2d 361, 367 (quoting SDCL 11-2-61 and SDCL 21-31-8; citing SDCL 11-2-62). Our review is also limited:

Our consideration of a matter presented on certiorari is limited to whether the board of adjustment had jurisdiction over the matter and whether it pursued in a regular manner the authority conferred upon it. A board's actions will be sustained unless it did some act forbidden by law or neglected to do some act required by law.

Id. at ¶ 14 (quoting Hines v. Board of Adjustment of City of Miller, 2004 SD 13, ¶ 10, 675 N.W.2d 231, 234).

Decision

[¶ 5.] Jensen argues that although conditional use permits are not specifically mentioned in SDCL 11-2-59, the statute requires a board of adjustment to approve applications for permits by a two-thirds vote. On the other hand, the Board points to legislative history reflecting that at one time the statute specifically referred to the approval of "conditional use permits," but that reference was repealed. 5 While repeal of such specific language would normally tend to suggest that conditional permits were no longer governed by the statute, we do not resort to statutory construction through legislative history. "[R]esorting to legislative history is justified only when legislation is ambiguous, or its literal meaning is absurd or unreasonable. Absent these circumstances, we must give legislation its plain meaning." Petition of Famous Brands, Inc., 347 N.W.2d 882, 885 (S.D.1984) (citations omitted).

[¶ 6.] In this case, the literal language of the statute is not absurd, unreasonable, or ambiguous. It plainly required a two-thirds vote for any applicant on any matter upon which the Board was required to pass.

The concurring vote of two-thirds of the members of the board of adjustment is necessary to reverse any order, requirement, decision, or determination of any such administrative official, or to decide in favor of the applicant on any matter upon which it is required to pass under any such ordinance, or to effect any variation in the ordinance.

SDCL 11-2-59 (emphasis added). 6 In this case, Turner County Ordinance 3.01.11 required the Board to approve or deny applications for conditional use permits. Because

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ET Farms, Ltd.'s application was a matter upon which the Board was required to pass, SDCL 11-2-59 applied, and it required a two-thirds concurring vote for approval.

[¶ 7.] Having decided that the statute is...

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