Jensen v. Turner County Board of Adjustment, No. 24134.

CourtSupreme Court of South Dakota
Writing for the CourtZinter
Citation730 N.W.2d 411,2007 SD 28
PartiesJace 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.
Decision Date14 March 2007
Docket NumberNo. 24134.
730 N.W.2d 411
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.
Considered on Briefs January 8, 2007.
Decided March 14, 2007.
Rehearing Denied April 17, 2007.

[730 N.W.2d 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

730 N.W.2d 413

under writs of certiorari, and therefore, judicial review is limited. Elliott v. Board of County Commissioners of Lake County, 2005 SD 92, ¶¶ 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

730 N.W.2d 414

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 applicable, we must next determine the meaning of the phrase the concurring vote of two-thirds "of the members of the board." Jensen contends that this language required a two-thirds vote of all members of the Board. The Board argues that the language only required a two-thirds vote of the members of the Board who were present and voting.

[¶ 8.] We believe the language "the members of the board" required a two-thirds vote of all members of the Board. The Legislature, in other contexts, has clearly revealed its ability to allow a specified vote of the "members present" when it so intended.7 Therefore, had the Legislature intended in SDCL 11-2-59 to only require a two-thirds concurrence of the members present and voting, it would have said so. Furthermore, the Board's contrary interpretation would require us to read the additional language "members present" into the statute, something we cannot do:

While it is fundamental that we must strive to ascertain the real intention of the lawmakers, it is equally fundamental that we must confine ourselves to the intention as expressed in the language used. Ex parte Brown, 21 S.D. 515, 519, 114 N.W. 303, 305 (1907). To violate the rule against supplying omitted language would be to add voluntarily unlimited hazard to the already inexact and uncertain business of searching for legislative intent. Boehrs v. Dewey County, 74 S.D. 75, 79, 48 N.W.2d 831, 834 (1951).

Petition of Famous Brands, 347 N.W.2d at 885. We therefore conclude that SDCL 11-2-59 required a two-thirds vote of the entire membership of the Board.

[¶ 9.] We must finally determine whether there was a concurring vote of "two-thirds" of the membership. Because the Board was composed of five members, a two-thirds concurrence required four votes.8 Although this vote was unanimous, only three affirmative votes were cast. This leaves the question of the legal effect of the abstention.9

730 N.W.2d 415

[¶ 10.] The Board argues that we should adopt the common-law rule that abstentions are counted as an acquiescence to the majority of votes actually cast. Many cases describe the origin of this rule:

The common-law rule regarding abstentions evolved from a rule pertaining to elections announced by Lord Mansfield in Rex v. Foxcroft, 2 Burr 1017, 1021, 97 Eng.Rep. 683 (1760): "Whenever electors are present, and don't vote at all, (as they have done here,) `They virtually acquiesce...

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20 practice notes
  • Fin-Ag v. Pipestone Livestock Auction, No. 23982.
    • United States
    • Supreme Court of South Dakota
    • June 18, 2008
    ...882, 885 (S.D.1984))); see also In re Estate of Olson, 2008 SD 4, ¶ 38, 744 N.W.2d 555, 566; Jensen v. Turner County Bd. of Adjustment, 2007 SD 28, ¶ 5, 730 N.W.2d 411, 413; Goetz v. State, 2001 SD 138, ¶ 16, 636 N.W.2d 675, 681; Reider v. Schmidt, 2000 SD 118, ¶ 9, 616 N.W.2d 476, 479. As ......
  • Discover Bank v. Stanley, No. 24822.
    • United States
    • Supreme Court of South Dakota
    • November 12, 2008
    ...so directed." SDCL 2-14-2.1. Statutes and court rules must be construed in their entirety. Jensen v. Turner County Bd. of Adjustment, 2007 SD 28, ¶ 12, 730 N.W.2d 411, 415 (citing Peterson ex rel. Peterson v. Burns, 2001 SD 126, ¶ 32, 635 N.W.2d 556, 568 (quoting Maynard, 1997 SD 60, ¶......
  • Armstrong v. Turner County Bd. of Adj., No. 25008.
    • United States
    • Supreme Court of South Dakota
    • August 26, 2009
    ...directly to circuit court by way of a writ of certiorari. See id. ¶ 20, 764 N.W.2d at 711 (citing Jensen v. Turner Cty. Bd. of Adjustment, 2007 SD 28, ¶ 4, 730 N.W.2d 411, 412-13); see also Elliott v. Board of County Comm'rs of Lake County, 2005 SD 92, ¶ 14, 703 N.W.2d 361, 367. In 2004, th......
  • Fin-Ag, Inc. v. Cimpl's, Inc., No. 24172.
    • United States
    • Supreme Court of South Dakota
    • June 18, 2008
    ...882, 885 (S.D.1984))); see also In re Estate of Olson, 2008 SD 4, ¶ 38, 744 N.W.2d 555, 566; Jensen v. Turner County Bd. of Adjustment, 2007 SD 28, ¶ 5, 730 N.W.2d 411, 413; Goetz v. State, 2001 SD 138, ¶ 16, 636 N.W.2d 675, 681; Reider v. Schmidt, 2000 SD 118, ¶ 9, 616 N.W.2d 476, 479. As ......
  • Request a trial to view additional results
20 cases
  • Fin-Ag v. Pipestone Livestock Auction, No. 23982.
    • United States
    • Supreme Court of South Dakota
    • June 18, 2008
    ...882, 885 (S.D.1984))); see also In re Estate of Olson, 2008 SD 4, ¶ 38, 744 N.W.2d 555, 566; Jensen v. Turner County Bd. of Adjustment, 2007 SD 28, ¶ 5, 730 N.W.2d 411, 413; Goetz v. State, 2001 SD 138, ¶ 16, 636 N.W.2d 675, 681; Reider v. Schmidt, 2000 SD 118, ¶ 9, 616 N.W.2d 476, 479. As ......
  • Discover Bank v. Stanley, No. 24822.
    • United States
    • Supreme Court of South Dakota
    • November 12, 2008
    ...so directed." SDCL 2-14-2.1. Statutes and court rules must be construed in their entirety. Jensen v. Turner County Bd. of Adjustment, 2007 SD 28, ¶ 12, 730 N.W.2d 411, 415 (citing Peterson ex rel. Peterson v. Burns, 2001 SD 126, ¶ 32, 635 N.W.2d 556, 568 (quoting Maynard, 1997 SD 60, ¶......
  • Armstrong v. Turner County Bd. of Adj., No. 25008.
    • United States
    • Supreme Court of South Dakota
    • August 26, 2009
    ...directly to circuit court by way of a writ of certiorari. See id. ¶ 20, 764 N.W.2d at 711 (citing Jensen v. Turner Cty. Bd. of Adjustment, 2007 SD 28, ¶ 4, 730 N.W.2d 411, 412-13); see also Elliott v. Board of County Comm'rs of Lake County, 2005 SD 92, ¶ 14, 703 N.W.2d 361, 367. In 2004, th......
  • Fin-Ag, Inc. v. Cimpl's, Inc., No. 24172.
    • United States
    • Supreme Court of South Dakota
    • June 18, 2008
    ...882, 885 (S.D.1984))); see also In re Estate of Olson, 2008 SD 4, ¶ 38, 744 N.W.2d 555, 566; Jensen v. Turner County Bd. of Adjustment, 2007 SD 28, ¶ 5, 730 N.W.2d 411, 413; Goetz v. State, 2001 SD 138, ¶ 16, 636 N.W.2d 675, 681; Reider v. Schmidt, 2000 SD 118, ¶ 9, 616 N.W.2d 476, 479. As ......
  • Request a trial to view additional results

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