IN RE YANKTON COUNTY COM'N., No. 22681

• Decision Date: 10 September 2003
• Docket Number: No. 22681, No. 22692.
• Citation: 2003 SD 109,670 N.W.2d 34
• Court: South Dakota Supreme Court
• Parties: In re Appeal from Decision of YANKTON COUNTY COMMISSION on, June 25, 2002, Denying the Appeal of Guy Larson, an Aggrieved Person, and Concerning the Issuance of a Building Permit to Larry Ryken, Permit Number 22A, Issued on April 19, 2002.

670 N.W.2d 34

2003 SD 109

In re Appeal from Decision of YANKTON COUNTY COMMISSION on, June 25, 2002, Denying the Appeal of Guy Larson, an Aggrieved Person, and Concerning the Issuance of a Building Permit to Larry Ryken, Permit Number 22A, Issued on April 19, 2002.

Nos. 22681, 22692.

Supreme Court of South Dakota.

Argued May 30, 2003.

Decided September 10, 2003.

Nora M. Kane, David A. Domina of Domina Law, Omaha, Nebraska, James G. Abourezk, Sioux Falls, South Dakota, Attorneys for appellant Yankton Land & Cattle Co.

Robert L. Chavis, Yankton County State's Attorney, Yankton, South Dakota, Attorneys for appellee Guy Larson, et al.

ZINTER, Justice.

[¶ 1.] Larry Ryken, owner of a feedlot and sale barn, applied for a building permit after Yankton County had adopted a temporary zoning ordinance (TZO). Although the permit was granted, Guy Larson, a local taxpayer, unsuccessfully appealed to the Yankton County Board of Adjustment. Larson did not, however, appeal the Board of Adjustment's decision to circuit court in accordance with SDCL 11-2-61 (2000). Instead, he appealed the Board of Adjustment decision to the Yankton County Commission under section 1903 of the TZO. After also losing his appeal with the County Commission, Larson and several other taxpayers (collectively referred to as Taxpayers) successfully petitioned the Yankton County State's Attorney to appeal the County Commissioners' decision to circuit court. The State's Attorney appealed under SDCL 7-8-28, a non-zoning statute allowing appeals of county commission decisions that are of general interest to the public. The circuit court assumed jurisdiction and affirmed issuance of the permit on certain conditions. Ryken's successor in interest (YLC),¹ the State's Attorney, and Taxpayers all appeal to this Court raising various issues. Because we hold that the statutory method of appealing a Board of Adjustment decision in SDCL 11-2-61 preempted the County Commission review under section 1903 of the TZO, we only address the jurisdictional issue. On that issue we hold that because the appeal taken to the County Commission under the TZO was preempted, there was no permit decision before the County Commission that could be appealed to circuit court under SDCL 7-8-28. We further hold that because Taxpayers did not take an appeal from the Board of Adjustment to circuit court as directed by SDCL 11-2-61, the circuit court lacked jurisdiction. We therefore reverse.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] Ryken owned the Yankton Livestock Market since 1978. The facility was used as a salebarn and feedlot for cattle and horses owned by Ryken and his customers. In December 2002, Yankton County adopted the TZO.² Under the TZO, Ryken's facility was a nonconforming use.³ However, because Ryken's facility was in existence at the time the TZO was enacted, his nonconforming use was "grandfathered." [¶ 3.] At some point in these proceedings, the South Dakota Department of Environment and Natural Resources (DENR) determined that the facility's animal waste system did not comply with new state and federal regulations. Ryken's existing holding ponds only had a capacity of 60 to 90 days. The new regulations required Ryken to develop holding ponds that could contain 365 days of waste and storm water runoff in a "zero discharge system." Because of these new requirements, Ryken hired an engineering firm to prepare a plan to bring the facility into compliance. After the engineers completed their plans for the holding pond improvements, Ryken applied to Tom Fiedler, the Yankton County Zoning Administrator, for the necessary building permit.⁴

[¶ 4.] Because the TZO was new and the permit was controversial, Fiedler asked the Yankton County Commissioners and other zoning officials for guidance. On April 16, 2002, the Yankton County Planning Commission and the Yankton County Board of Commissioners, the latter acting as the Yankton County Board of Adjustment, conducted a joint meeting to discuss the permit. Following the meeting, the Planning Commission and the Board of Adjustment "recommended"⁵ that Fiedler issue the building permit subject to a number of conditions that are not relevant to this appeal. On April 19, 2002, Fiedler issued the building permit subject to those conditions.

[¶ 5.] Larson subsequently appealed the Zoning Administrator's decision to the Planning Commission. When that appeal was denied, Larson appealed to the Board of Adjustment. That appeal was also denied. However, Larson failed to appeal the Board of Adjustment's decision to circuit court in accordance with SDCL 11-2-61. Instead, Larson appealed from the Board of Adjustment to the County Commission under section 1903 of the TZO. The County Commission subsequently heard the appeal and affirmed the Board of Adjustment's decision.

[¶ 6.] One day later, Taxpayers petitioned⁶ the Yankton County State's Attorney to file a "taxpayer appeal" under SDCL 7-8-28⁷ from the County Commissioners' decision affirming the Board of Adjustment. The State's Attorney filed that appeal in circuit court together with an application for a temporary injunction and, in the alternative, a request for a stay. A hearing was held in circuit court the day after the appeal was filed. The circuit court denied the request for an injunction and the stay, and it scheduled a trial.

[¶ 7.] In September 2002, the circuit court conducted a two-day trial on the taxpayer appeal. The circuit court heard testimony concerning the historical use of the facility. After trial, the circuit court affirmed the County Commission, but concluded that the permit should have expressly limited the future use of the facility to its "historical use." The circuit court remanded the matter with orders that the permit limit the use of the property to "6,006 head (animal units) in the indoor livestock auction barn and 2,500 head of feeder cattle (animal units) in the outdoor livestock feeding pens." The court further ordered the permit to indicate "that no expansion of the prior nonconforming use is being permitted."

[¶ 8.] YLC appeals the circuit court's decision, raising three issues. By notice of review, Taxpayers raise three additional issues. Because we conclude that the jurisdictional issue concerning the method of appeal is dispositive, we only consider:

Whether the circuit court had jurisdiction to hear the appeal.

STANDARD OF REVIEW

[¶ 9.] Subject matter jurisdiction to conduct an appeal from a county commission decision presents a question of law. In re Estate of Galada, 1999 SD 21, ¶ 8, 589 N.W.2d 221, 222-23 (citing Kroupa v. Kroupa, 1998 SD 4, ¶ 10, 574 N.W.2d 208, 210). "Accordingly, [that issue is] fully reviewable and we afford no deference to the conclusions reached by the trial court." Id. Furthermore, to resolve this case we must engage in statutory interpretation. "We review statutory interpretation de novo." Maas v. Department of Commerce and Regulation, 2003 SD 48, ¶ 8, 661 N.W.2d 726, 730 (further citations omitted).

DECISION

[¶ 10.] The trial court lacked jurisdiction to hear the appeal.

[¶ 11.] Larson started the appellate process that led to this circuit court appeal. He appealed from the local Zoning Administrator to the Planning Commission, from the Planning Commission to the Board of Adjustment, and from the Board of Adjustment to the Yankton County Commission. These appeals were taken pursuant to section 1903 of the TZO, which provided that the County Commission had the power to review local zoning decisions. It provided:

The County Commission shall have the power to hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by the Zoning Administrator, Planning Commission, or Board of Adjustment based on or made in the enforcement of any zoning regulation or any regulation relating to the location or soundness of structures or to interpret any map.

Id. (emphasis added).

[¶ 12.] After the County Commission affirmed the Board of Adjustment's decision, Taxpayers, through the State's Attorney, appealed the County Commissioner's decision to circuit court under SDCL 7-8-28. Under that statute, a State's Attorney is authorized to appeal a decision of the county commissioners upon demand of at least fifteen taxpayers if a commission decision "relates to the interests or affairs of the county at large or any portion thereof." Id.

[¶ 13.] YLC does not dispute that SDCL 7-8-28 permits general interest appeals to circuit court from county commission decisions. YLC, however, contends such appeals are allowed only if the decision being reviewed was properly before a county commission. In this case, YLC argues that the Board of Adjustment decision was not properly before the County Commission. YLC contends Taxpayers had no right to appeal the Board of Adjustment's decision to the County Commission because SDCL 11-2-61 preempted section 1903 of the TZO. That statute, as it existed at the time of the Board of Adjustment appeal (May 29, 2002), only allowed an appeal to circuit court from a board of adjustment decision. It did not permit an appeal to a county commission. SDCL 11-2-61 (2000) provided:

Any person or persons, jointly or severally, aggrieved by any decision of the board of adjustment, or any taxpayer, or any officer, department, board, or bureau of the county, may present to a court of record a petition duly verified, setting forth that the decision is illegal, in whole or in part, specifying the grounds of the illegality. The petition shall be presented to the court within thirty days after the filing of the decision in the office of the board of adjustment.

Id. (emphasis added). Because this statute did not allow an appeal from the Board of Adjustment to the County Commission, YLC argues that the circuit court did not have jurisdiction under SDCL 7-8-28 to review the decision of the County Commission.

[¶ 14.] SDCL 11-2-61 and section 1903 of the TZO both provide...