Baker v. Atkinson

Decision Date18 April 2001
Docket NumberNo. 21394.,21394.
Citation625 N.W.2d 265,2001 SD 49
PartiesGlenn BAKER, Holly Baker, Paul Baker, Gloria Baker, Andrew G. Ridley, Kimmie D. Ridley, Dave O. Meredith, Patricia R. Meredith, Robert Morcom, Cathy Sulentic Morcom, Robert Harlan, Gen Harlan, Reed C. Richards, Ester M. Richards and the Save Centennial Valley Again Assn., Petitioners and Appellees, v. Connie ATKINSON, Lawrence County Auditor, and the Lawrence County Commission, Appellees, and Frawley Ranches, Inc., Intervenor and Appellant.
CourtSouth Dakota Supreme Court

Reed C. Richards of Richards and Richards, Deadwood, SD, Attorneys for petitioners and appellees.

John Fitzgerald and Bruce Outka, Lawrence County States Attorneys, Deadwood, SD, Attorneys for appellees.

Brad P. Gordon and Roger Tellinghuisen of Fuller, Tellinghuisen, Gordon & Percy, Spearfish, SD, Attorneys for intervenor and appellant.

WILBUR, Circuit Judge.

[¶ 1.] Frawley Ranches, Inc. (Frawley) appeals from a circuit court order denying intervention and a judgment granting a writ of mandamus. We affirm.


[¶ 2.] In 1998, Frawley began the process of developing a planned unit development (PUD) in Eastern Lawrence County, South Dakota. At that time, the 1,000 acres required for this development were zoned A-1 Agricultural under Lawrence County's Zoning Ordinance. For that reason, Frawley took the appropriate steps to move this project forward. [¶ 3.] On September 2, 1999, the Lawrence County Planning Commission (planning commission) heard Frawley's rezoning requests as well as the request for a conditional use permit (CUP), PUD, and PUD overlay. At the meeting, the public was allowed to comment. The matter was then put to a vote and the rezoning requests, PUD, and PUD overlay were recommended for approval. The planning commission recommended a denial of the PUD developments planned for a portion of the suburban residential development. This matter then proceeded to the Lawrence County Commission (county commission) for approval.

[¶ 4.] On October 12, 1999, the county commission held a meeting to discuss Frawley's proposal. At the meeting Frawley made a presentation and the public again was allowed to comment on Frawley's plan. After this discussion, the county commission approved the rezoning requests. The CUP and PUD overlay were also approved contingent upon Lawrence County entering into a development agreement with Frawley. However, the county commission denied the PUD development for the suburban residential zoning district.

[¶ 5.] The county commission's approval brought about a referendum petition challenging the ordinances and resolutions. The referendum petition, as drafted and circulated, stated that the qualified voters of Lawrence County rejected pursuant to law:

The Ordinances approving the Frawley Ranches, Inc., requests for change of zoning, passed by the Lawrence County Commissioners at its meeting on October 12, 1999, are titled as follows:
COZ # 190; COZ # 191; COZ # 192; COZ # 193; COZ # 194; COZ # 195; CUP # 254; PUD contingent upon the County entering into a Development Agreement with the developers.
The above-named Ordinances are set forth in full in the attached minutes of the Lawrence County Commissioners Meeting Dated October 12, 1999.

After the required number1 of signatures was obtained, the petition was submitted to the Lawrence County Auditor (auditor) to authenticate the number and validity of signatures. After the authentication was completed, the auditor submitted the petition to the county commission so that the issue would be submitted to the Lawrence County electorate for a vote.

[¶ 6.] The county commission refused to schedule a vote. The commission contended the petitions were not in proper form.2 No other reason was provided for the refusal to schedule a vote. In response to the county commission's refusal Petitioners applied to the circuit court for a writ of mandamus to compel the county commission to schedule and administer a vote.

[¶ 7.] On November 23, 1999, the circuit court issued an order to show cause, requiring the auditor and the county commission to explain why the writ of mandamus should not be issued. The circuit court scheduled a hearing date of December 13, 1999 for the order to show cause hearing. On November 29, 1999, Frawley filed a motion to intervene pursuant to SDCL 15-6-24(c). The date for argument was set for December 13, 1999. On December 7, 1999, Frawley submitted a brief in opposition to the petition for writ of mandamus.

[¶ 8.] On December 13, 1999, a hearing was held before the circuit court. The court first heard arguments regarding the motion to intervene. Petitioners relied solely upon their written statement while Frawley argued orally before the circuit court. After considering the petitioner's written statement and Frawley's oral argument, the circuit court denied Frawley's motion to intervene.3

[¶ 9.] The circuit court denied Frawley's motion to intervene because the writ of mandamus that Petitioners sought did not seek relief from Frawley nor could the circuit court grant any type of relief directly to Frawley. The circuit court recognized that Frawley had an interest in the outcome of the vote, but had no interest in the validity of the petition. The circuit court did rule, however, that it would consider Frawley as amicus curiae. The circuit court subsequently allowed Frawley to argue on the merits at the hearing on the writ of mandamus.4 At the close of Frawley's oral argument the attorney for the county commission stated, "I would like to have the Court acknowledge that the County joins in Frawley Ranches, Inc.'s, brief and in their oral arguments as have been presented today." After hearing argument and considering briefs from Petitioners, Frawley, and the county commission, the circuit court issued the writ of mandamus.

[¶ 10.] The issuance of the writ of mandamus was based on the following rationale. First, the circuit court held that this issue was subject to the referendum process under the statutes of South Dakota. Second, the circuit court stated that in order for the petition to be held invalid, the burden was on the county commission to make a showing of confusion, corruption, or fraud, and none was presented. The circuit court stated any confusion that might exist could be cleared up by a properly prepared ballot. Third, the form of the petition substantially complied with the statutory requirements that govern the validity of the petition. For those reasons, the writ of mandamus was issued. The county commission did not appeal from this decision.

[¶ 11.] After the writ of mandamus was issued, the county commission scheduled and administered a vote of the Lawrence County electorate. The results of that election rejected the Frawley development in its entirety, including the rezoning requests. Frawley appeals, raising the following issues:

Did the circuit court err in denying Frawley's motion to intervene in the mandamus proceedings?
Did the circuit court err in granting the writ of mandamus?

[¶ 12.] In determining if a circuit court erred in denying a motion to intervene, "[t]his Court's standard of review is whether the trial court abused its discretion in denying intervention as of right." Weimer v. Ypparila, 504 N.W.2d 333, 335 (S.D.1993).5 Because a circuit court has discretion in granting a writ of mandamus, the appropriate standard on review is also abuse of discretion. Willoughby v. Grim, 1998 SD 68, ¶ 6, 581 N.W.2d 165, 167; See also Brown v. City of Yankton, 434 N.W.2d 376, 378 (S.D. 1989). "[A]n abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence." State v. Almond, 511 N.W.2d 572, 574 (S.D.1994). In applying the abuse of discretion standard, "we do not determine whether we would have made a like decision, only whether a judicial mind, considering the law and the facts, could have reached a similar decision." Id.

1. Intervention

[¶ 13.] To intervene as a matter of right, Frawley must satisfy SDCL 15-6-24(a)(2), which states:

Upon timely application anyone shall be permitted to intervene in an action:
(2) When the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

(emphasis added). Frawley argues that it had a direct interest in the transaction and the failure to allow it to intervene impaired its ability to protect that interest. Frawley also argues that the failure of the county commission to appeal was prima facie evidence that the existing parties did not adequately represent Frawley's interests.

[¶ 14.] This Court has long held that "[t]he purpose of intervention is to obviate delay and multiplicity of suits by creating an opportunity to persons directly interested in the subject matter to join in an action or proceeding already instituted." Jackson v. Board of County Commissioners Etc., 76 S.D. 495, 81 N.W.2d 686, 690 (S.D.1957); See also Steiner v. County of Marshall, 1997 SD 109, ¶ 40, 568 N.W.2d 627, 635 (Miller, C.J.concurring) (emphasis added). The circuit court denied the motion to intervene because Petitioners sought no relief from Frawley, nor could the court grant any relief to Frawley. The holding that Frawley had no direct interest in the writ of mandamus action is based upon a distinction between the validity of the petition (and therefore the issuance of the writ) and the resulting vote of the electorate.

[¶ 15.] The question of whether the circuit court should have allowed Frawley to intervene is a close one. Frawley clearly had an interest in the writ of mandamus proceeding because of the potential impact of a...

To continue reading

Request your trial
21 cases
  • Hanig v. City of Winner
    • United States
    • South Dakota Supreme Court
    • January 19, 2005
    ...of the specific duty sought to be compelled and the respondent must have a definite legal obligation to perform that duty." Baker v. Atkinson, 2001 SD 49, ¶ 16, 625 N.W.2d 265, 271 (citing Sorrels v. Queen of Peace Hosp., 1998 SD 12, ¶ 6, 575 N.W.2d 240, 242 (citations omitted)). We have ap......
  • Leader v. Hagen
    • United States
    • South Dakota Supreme Court
    • September 11, 2007
    ...end or purpose not justified by, and clearly against reason and evidence.'" Schafer, 2006 SD 106, ¶ 4, 725 N.W.2d at 243 (quoting Baker v. Atkinson, 2001 SD 49, ¶ 12, 625 N.W.2d 265, 270 (other citations omitted)). In applying this standard, this Court does not determine whether it would ma......
  • Schafer v. Deuel County Bd. of Com'Rs.
    • United States
    • South Dakota Supreme Court
    • November 29, 2006
    ...of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence." Baker v. Atkinson, 2001 SD 49, ¶ 12, 625 N.W.2d 265, 270 (citation omitted). "In applying the abuse of discretion standard, we do not determine whether we would ha......
  • Heinemeyer v. Heartland
    • United States
    • South Dakota Supreme Court
    • November 12, 2008
    ...STANDARD OF REVIEW [A] writ of mandamus is an extraordinary remedy that will issue only when the duty to act is clear [.]" Baker v. Atkinson, 2001 SD 49, ¶ 16, 625 N.W.2d 265, 271. "It commands the fulfillment of an existing legal duty, but creates no duty itself, and acts upon no doubtful ......
  • Request a trial to view additional results
1 books & journal articles
    • United States
    • South Dakota Law Review Vol. 67 No. 3, September 2022
    • September 22, 2022
    ...Baker involved a referendum petition, not a constitutional amendment. Id. [paragraph] 42, 967 N.W.2d at 275 (quoting Baker v. Atkinson. 2001 SD 49, [paragraph] 25, 625 N.W.2d 265, 273-74). The court stated the single-subject and separate vote were more demanding of constitutional amendments......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT