Bechen v. MOODY COUNTY BD. OF COM'RS., No. 23372
| Decision Date | 24 August 2005 |
| Docket Number | No. 23388., No. 23372 |
| Citation | 703 N.W.2d 662,2005 SD 93 |
| Parties | John BECHEN and The Moody County Chapter of Dakota Rural Action, Petitioners and Appellants, v. MOODY COUNTY BOARD OF COMMISSIONERS, Alvin Gullickson, Martin May, Kenneth Doyle, Bill Nibbelink and Jean Larson, County Auditor, Respondents and Appellees, and Britannia Dairy, LLP and Rex Nederend Family Trust, Intervenors and Appellees. |
| Court | South Dakota Supreme Court |
James Abourezk and Todd Epp of Abourezk and Epp Law Office, Sioux Falls, South Dakota, Attorneys for petitioners and appellants.
William J. Ellingson, Moody County State's Attorney, Flandreau, South Dakota, Attorney for respondents and appellees.
Mark V. Meierhenry of Danforth, Meierhenry & Meierhenry, Sioux Falls, South Dakota, Attorneys for intervenor and appellee Britannia Dairy.
William G. Beck of Woods, Fuller, Shultz & Smith, Sioux Falls, South Dakota, Attorneys for intervenor and appellee Rex Nederend Family Trust.
[¶ 1.] John Bechen and the Moody County Chapter of Dakota Rural Action (collectively Bechen) appeal from a judgment and order denying an application for a writ of mandamus. Bechen applied for a writ of mandamus to require Moody County to hold a referendum vote on a decision by the Moody County Board of Adjustment (Board) to issue conditional use permits for two proposed concentrated animal feeding operations. Bechen argues the trial court erred when it ruled that the decision to issue the permits was administrative and, therefore, not referable, and when it failed to rule on whether a Board decision granting a conditional use permit can be referred to a vote of the people.
[¶ 2.] The Moody County Commission (Commission) adopted a resolution approving the Moody County Comprehensive Land Use Plan (CLUP) on December 23, 2002. A summary of the CLUP was published on January 1, 2003, and the plan became effective on January 21, 2003. CLUP was intended to be a statement of policy that would guide the land use decisions made by the county's governmental officials.
[¶ 3.] On January 21, 2003, Commission adopted the Moody County Zoning Ordinance. Notice of its adoption was published on January 25, 2003 and February 5, 2003. The zoning ordinance became effective on February 25, 2003. The zoning ordinance is a complete and comprehensive ordinance based on the CLUP guidelines. Both documents recognize the possibility of concentrated animal feeding operations being sited within Moody County, and provide guidelines for their placement, approval and regulation.1
[¶ 4.] In March 2004 Rex Nederend Family Trust (Nederend) and the Britannia Dairy (Britannia) applied for conditional use permits pursuant to the Moody County zoning ordinance. Nederend and Britannia sought to construct separate concentrated animal feeding operations within Moody County. The operations were to feed and house between 2,000 and 3,600 head of dairy cattle. All the necessary publications and notices were made and on April 6, 2004, a public hearing was held regarding the permits. At the end of the hearing, Board announced its decision to grant the permits. The minutes of the Board were filed on that day but were not published.
[¶ 5.] Referendum petitions were submitted to the Moody County Auditor on June 7, 2004 who presented these petitions to Commission. On June 23, 2004, Commission denied the petition for a referendum vote. Commission met to reconsider its decision on June 25, 2003 but again rejected the referendum petitions. Commission based its decision on the belief that the decision to grant the conditional use permits was administrative and therefore not subject to a referendum vote of the county's citizens.
[¶ 6.] Approximately sixty days after Commission rejected the referendum petitions, Bechen applied for a writ of mandamus. Bechen asked the circuit court to compel Moody County to schedule a public vote on the Board's decision to grant the conditional use permits. Commission opposed the writ based on its view that the decision to grant the conditional use permits was administrative in nature. Nederend and Britannia were allowed to intervene in support of Commission. The circuit court upheld Commission's refusal to hold a referendum vote.
[¶ 7.] The circuit court ruled that the decision approving the permits was administrative and not subject to referendum. The circuit court denied Bechen's petition for a writ of mandamus on August 18, 2004. Although the issue was before it, the circuit court did not rule on whether a decision by a county board of adjustment can be referred to a public vote.
[¶ 8.] On August 24, 2004, Bechen filed notice of appeal to this Court pursuant to SDCL 15-26A-3(4). On September 10, 2004, Commission, along with Nederend and Brittania, filed a notice of review pursuant to SDCL 15-26A-22. On appeal both parties raised several issues for review. The Court recognizes the dispositive issue in this case is whether the actions of a county board of adjustment can be referred to a vote of the citizens of that county.
[¶ 9.] The grant or denial of a writ of mandamus is discretionary, and reviewed under an abuse of discretion standard. Vitek v. Bon Homme County Bd. of Com'rs, 2002 SD 45, 644 N.W.2d 231. An abuse of discretion refers to the use of discretion that is clearly against reason and evidence. State v. Almond, 511 N.W.2d 572 (S.D.1994). "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. at 574. In order to compel Commission to submit the issue to referendum, Bechen must have "a clear legal right to performance of the specific duty sought," and the Commission "must have a definite legal obligation to perform that duty." Vitek, 2002 SD 45 at ¶ 8, 644 N.W.2d at 234.
[¶ 10.] In 2000 the South Dakota Legislature provided for the creation of county boards of adjustment and empowered these boards to grant variances from the terms of county zoning ordinances. This power was to be exercised in appropriate cases and subject to appropriate conditions and safeguards. SDCL 11-2-49. The legislature also provided that a county commission could either appoint a separate board of adjustment or the county commission could itself sit as the board of adjustment. SDCL 11-2-49 and 11-2-60. The county board of adjustment was created by and received its powers from the legislature through SDCL 11-2-49 through 11-2-65, and not from any act of the county government itself.
[¶ 11.] We note that when a county commission decides not to appoint a separate board of adjustment, but elects to sit as the board of adjustment, this does not mean that the county commission and the board of adjustment become a single entity. While the members of each board may be identical, each board remains a separate legal entity with its own distinct powers and responsibilities under state law. In Kirschenman v. Hutchinson County Bd., 2003 SD 4, 656 N.W.2d 330, the Court did not carefully draw this distinction and was not precise in the terminology it used. To the extent that Kirschenman can be read to treat a board of county commissioners as identical to a county board of adjustment, Kirschenman is overruled.
[¶ 12.] Are the decisions of a county board of adjustment subject to the referendum?
[¶ 13.] In 1898 Article III, § 1 of the South Dakota Constitution was amended to grant the people of this state the power to refer the actions of the state legislature and municipalities to a public vote.2 However, the text of the constitutional provision covered only the legislature and municipalities. No corresponding right to refer the actions of county government, or other local units of government, was provided for in the constitutional amendment.
[¶ 14.] In 1975 the South Dakota Legislature extended the right of referendum to ordinances or resolutions adopted by a board of county commissioners. SDCL 7-18A-15.3See Lowe, Restrictions on Initiative and Referendum Powers in South Dakota, 28 SDLRev 53 (1982). This Court upheld the constitutionality of SDCL 7-18A-15 in Hofer v. Bd. of Cty. Com'rs of McCook Cty., 334 N.W.2d 507 (S.D.1983).
[¶ 15.] We have described the people's power of referral as a right that is to be interpreted liberally and in such a way as to permit the exercise of the people's referendum powers. Kirschenman, 2003 SD 4 at ¶ 7, 656 N.W.2d at 333; Taylor Properties v. Union County, 1998 SD 90, 583 N.W.2d 638. We have long upheld the people's right to refer acts of the state legislature, local municipalities, and county commissions to a public vote. However, the question whether the actions of a county board of adjustment may be referred to a public vote is one of first impression for this Court.
[¶ 16.] Commission argues that the provisions of SDCL 7-18A-15 did not create a broad right to refer the actions of "county government" like Article III, § 1 of the South Dakota Constitution created the right to refer actions of municipalities. Rather SDCL 7-18A-15 limited the right to refer actions of county government to ordinances and resolutions adopted by a board of county commissioners. Commission argues that there is no statutory right to refer the actions of a county board of adjustment. We agree.
[¶ 17.] We first note 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." When the language of a statute is clear and unambiguous on its face, words and phrases must be given their plain meaning. Esling v. Krambeck, 2003 SD 59, ¶ 6, 663 N.W.2d 671, 676. Textually, there can be no interpretation that SDCL 7-18A-15 applies the power of referendum to a county board of adjustment.
[¶ 18.] Next we note that when the legislature decided to extend the referendum to...
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