Jensen v. Lincoln County Bd. of Com'Rs, 23865.

Citation2006 SD 61,718 N.W.2d 606
Decision Date05 July 2006
Docket NumberNo. 23887.,No. 23865.,23865.,23887.
PartiesKirk JENSEN, Petitioner and Appellant, v. LINCOLN COUNTY BOARD OF COMMISSIONERS and the Lincoln County Planning and Zoning Commission, Respondents and Appellees.
CourtSouth Dakota Supreme Court

James G. Abourezk of Abourezk Law Offices, P.C., Sioux Falls, South Dakota, Attorney for petitioner and appellant.

Thomas R. Wollman, Lincoln County State's Attorney, Michael F. Nadolski, Lincoln County Deputy State's Attorney, Sioux Falls, South Dakota, Attorneys for respondents and appellees.

MEIERHENRY, Justice.

[¶ 1.] Kirk Jensen (Jensen) sought a writ of mandamus against the Lincoln County Planning and Zoning Commission (Planning Commission) and Lincoln County Board of County Commissioners (Board) to compel enforcement of a zoning ordinance. The circuit court denied Jensen's petition. Jensen appeals. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

[¶ 2.] Jensen's family farm and residence abuts the feedlot of his neighbor, Darwin Hazel (Hazel). Jensen and Hazel have been farming side by side since 1987. Hazel has been farming and feeding cattle with his father at the site since 1972. The distance between Jensen's residence and Hazel's feedlot is approximately 150 feet. Hazel has operated the feedlot at this location for the last thirty years.

[¶ 3.] In May of 2005, Hazel applied for a conditional use permit for a Class D concentrated animal feeding operation (CAFO) from the Planning Commission. The Planning Commission approved the application and granted Hazel a conditional use permit for the feedlot. Because of the close proximity of the feedlot to Jensen's residence, Jensen challenged the permit by appealing to the Board. Jensen claimed that the feedlot did not meet the zoning setback requirements. The Board rejected Jensen's challenge and affirmed the Planning Commission's decision.

[¶ 4.] Subsequent to the Board's decision, Jensen sought a writ of mandamus in circuit court. The application for the writ named as respondents both the Planning Commission and the Board (collectively County). Jensen sought to compel the County to enforce the zoning setback provisions for the feedlot. Jensen claimed that Hazel's proposed feedlot use constituted an expansion of a nonconforming use and that it did not meet the CAFO setback requirement. He asked the circuit court to compel the County either to enforce the setback ordinance or to deny Hazel's conditional use permit. After a hearing on the matter, the circuit court denied the writ of mandamus. Jensen appeals and presents two issues for our review: (1) whether the circuit court abused its discretion in denying Jensen's application for a writ of mandamus, and (2) whether the circuit court erred in denying Jensen's motion for rehearing. The County also presents one issue for our review: whether the availability of a plain, speedy, and adequate remedy in the ordinary course of the law precludes issuance of a writ of mandamus.

DECISION
Plain, Speedy, and Adequate Remedy at Law

[¶ 5.] A writ of mandamus is appropriate only when there is not a plain, speedy, and adequate remedy in the ordinary course of law. Black Hills Cent. R.R. v. City of Hill City, 2003 SD 152, ¶ 12, 674 N.W.2d 31, 34; see also SDCL 21-29-2. Consequently, the threshold question, raised by the County, is whether a mandamus action was available to Jensen. The County claims that he had a plain, speedy, and adequate remedy at law which precluded mandamus relief. Jensen's remedy, the County contends, is limited to an appeal to circuit court under the procedures set forth in SDCL 7-8-27, 7-8-29, and 7-8-30. The County points to the language of SDCL 7-8-32, which provides as follows:

Appeal to the circuit court from decisions of the board of county commissioners, as provided in this chapter, is an exclusive remedy. Judicial review of county commission action shall be allowed only as provided in §§ 7-8-27, 7-8-28, 7-8-29, 7-8-30, and 7-8-31.

Citing Kirschenman v. Hutchinson County Board of Commissioners and Vitek v. Bon Homme County Board of Commissioners, the County urges the Court to limit the mandamus remedy against a County to the referendum process. See Kirschenman, 2003 SD 4, 656 N.W.2d 330 (finding that mandamus was appropriate to compel the submission of a conditional use permit to a referendum despite the exclusive remedy provisions of SDCL ch. 7-8); Vitek, 2002 SD 45, 644 N.W.2d 231 (holding that the exclusive remedy provisions of SDCL ch. 7-8 did not preclude the submission of a zoning decision to a referendum).

[¶ 6.] An examination of the statutory provisions, however, does not lead us to the conclusion advanced by the County. In fact, in both Chapter 7-8 and Chapter 11-2, the Legislature recognized mandamus as a remedy when appealing from a decision of a board of county commission. In Chapter 11-2 (County Zoning), the Legislature specifically gave a taxpayer the right to bring a mandamus proceeding against "the proper official or officials" in order "to compel specific performance ... of any duty required by" the state zoning laws or county ordinances. SDCL 11-2-35. In its entirety, the statute specifies:

Any taxpayer of the county may institute mandamus proceedings in circuit court to compel specific performance by the proper official or officials of any duty required by this chapter and by any ordinance adopted thereunder.

SDCL 11-2-35.

[¶ 7.] Likewise, in Chapter 7-8, the Legislature recognized mandamus as a remedy when decisions are appealed to circuit court. See SDCL 7-8-31. The Legislature generally provided that "all decisions of the board of county commissioners upon matters properly before it" can be appealed to circuit court. SDCL 7-8-27.1 The Legislature also specified in SDCL 7-8-31 that when considering an appeal from a board of county commissioners, the circuit court may grant a mandamus. The statute provides:

The circuit court may make a final judgment and cause the same to be executed or may send the same back to the board of county commissioners with an order how to proceed, and require such board to comply therewith by mandamus or attachment as for contempt.

SDCL 7-8-31 (emphasis added).

[¶ 8.] Additionally, the legislative history of SDCL 11-2-35 indicates the Legislature intended mandamus as an available remedy in appeals from county zoning decisions. When enacted, the mandamus provision found in SDCL 11-2-35 was part of a larger reenactment bill "to establish County Planning Commissions, providing for their operation, the preparation of a comprehensive plan and the implementation thereof" which was passed by the South Dakota Legislature in 1967. See 1967 SD Laws ch 20. The provision now codified as SDCL 11-2-35 appeared as the last paragraph of the bill's final section entitled, "Enforcement."2 Id. This provision remains unchanged from its original version.

[¶ 9.] Consequently, the County's claim that a writ of mandamus cannot be used to challenge a county commission zoning decision is without merit. The Legislature in SDCL 11-2-35 clearly gave taxpayers the right to seek mandamus relief against county officials when the officials fail to perform duties required by the zoning ordinances. Jensen's application for a writ of mandamus conformed to the language of SDCL 11-2-35. He asserted that the Planning Commission failed to enforce the mandates of the Lincoln County Zoning Ordinances. He further sought to compel the Planning Commission to perform its duties as established by the ordinances. Therefore, the circuit court did not err by considering the application on its merits and we proceed to review that decision.

Mandamus
Clear Duty to Act

[¶ 10.] We have repeatedly reiterated the narrow application of a writ of mandamus. Mandamus is appropriate only if the petitioner can demonstrate a "`clear legal right to performance of the specific duty sought to be compelled'" and the respondent has "`a definite legal obligation'" to perform that duty. Sorensen v. Sommervold, 2005 SD 33, ¶ 6, 694 N.W.2d 266, 268 (citation omitted). We have stated,

Mandamus is a potent, but precise remedy. Its power lies in its expediency; its precision in its narrow application. It commands the fulfillment of an existing legal duty, but creates no duty itself, and acts upon no doubtful or unsettled right.

Sorrels v. Queen of Peace Hosp., 1998 SD 12, ¶ 6, 575 N.W.2d 240, 242. Therefore, mandamus is appropriate only when the duty to act is unequivocal. Because a writ of mandamus is an extraordinary remedy granted only under exceptional circumstances, "entitlement must also be indisputable and clear." Id. ¶ 7, 575 N.W.2d at 243; see also Black Hills C. R.R., 2003 SD 152, ¶ 13, 674 N.W.2d 31 at 34 ("a writ [of mandamus] will be issued only where the duty to act is clear"). We review a circuit court's grant or denial of an application for writ of mandamus under the abuse of discretion standard. Bechen v. Moody County Bd. of Comm'rs, 2005 SD 93, ¶ 9, 703 N.W.2d 662, 664. A circuit court abuses its discretion if its decision is clearly against reason and evidence. Id.

County's Duty under the Zoning Ordinances

[¶ 11.] If the County has a specific duty to act, that duty must be apparent in state law and/or local zoning ordinances. Consequently, whether the County had a duty to deny Hazel's conditional use permit is controlled by the provisions in the zoning laws and ordinances. The Legislature, with restrictions, has delegated zoning authority to counties. See generally SDCL ch. 11-2. Pursuant to that authority, Lincoln County enacted a comprehensive zoning plan in 1995. In 2002, the County revised the section dealing with livestock confinement facilities and feedlots, effective March 2003. Pursuant to state law, the County has a duty to administer and enforce its own zoning ordinances. See SDCL 11-2-25 ("The board [of county commissioners] shall provide for the enforcement of the...

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  • Leader v. Hagen
    • United States
    • South Dakota Supreme Court
    • 11 d2 Setembro d2 2007
    ...the fulfillment of an existing legal duty, but creates no duty itself, and acts upon no doubtful or unsettled right. Jensen v. Lincoln Co. Bd. of Com'rs, 2006 SD 61, ¶ 10, 718 N.W.2d 606, 610 (quoting Sorrels, 1998 SD 12, ¶ 6, 575 N.W.2d at 242). "[M]andamus is appropriate only when the dut......
  • Krsnak v. S.D. Dep't of Env't & Natural Resources
    • United States
    • South Dakota Supreme Court
    • 12 d3 Dezembro d3 2012
    ...statutes or administrative rules. If DENR had “a specific duty to act, that duty must be apparent in state law[.]” See Jensen v. Lincoln Cnty. Bd. of Comm'rs, 2006 S.D. 61, ¶ 11, 718 N.W.2d 606, 610–11. Further, the titles of the documents themselves suggest that they are “Recommended Stand......

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