Lamar Outdoor Adv. V. City of Rapid City
| Decision Date | 04 April 2007 |
| Docket Number | No. 24015.,24015. |
| Citation | 731 N.W.2d 199,2007 SD 35 |
| Parties | LAMAR OUTDOOR ADVERTISING OF SOUTH DAKOTA, INC., Petitioner and Appellant, v. CITY OF RAPID CITY, a municipality, The Rapid City Council and Tom Johnson, Mike Schumacher, Sam Kooiker, Deb Hadcock, Karen Gunderson Olson, Bill Okrepkie, Ray Hadley, Ron Kroeger, Malcom Chapman, and Bob Hurlbut, in their capacity as members of the Rapid City Council and Brad Solon, in his official capacity as Building Official for the City of Rapid City, Respondents and Appellees, and Epic Outdoor Advertising, LLP, Intervenor and Appellee. |
| Court | South Dakota Supreme Court |
Robert L. Morris of Day, Morris Law Firm, Belle Fourche, South Dakota, Attorneys for petitioner and appellant.
Joel P. Landeen, City Attorney's Office, Rapid City, South Dakota, Attorneys for respondent and appellee.
Michael P. Reynolds of Barker and Reynolds, Rapid City, South Dakota, Attorneys for intervenor and appellee.
[¶ 1.] Lamar Outdoor Advertising of South Dakota, Inc. (Lamar) petitioned the circuit court for a writ of certiorari to annul the action taken by the Rapid City Common Council (City Council) and a writ of mandamus to compel City Building Official Brad Solon (Building Official) to issue a stop work order to Epic Outdoor Advertising (Epic). The circuit court found the City Council had jurisdiction to hear the matter. The circuit court ended its inquiry there, finding Lamar failed to make the required showing that the City Council acted fraudulently, arbitrarily or with willful disregard of undisputed or indisputable proof. We affirm.
[¶ 2.] In 2002 the City Council made considerable revisions to Chapter 15.28 of the Rapid City Municipal Code (RCMC) in order to better regulate signs within Rapid City, South Dakota. Chapter 15.28, referred to as the sign code, was a response to the City Council's findings that off premise signs adversely affect the scenic beauty of the city and that the previous regulations adopted by the city were inadequate to protect the scenic beauty of the Black Hills. Preamble to RCMC § 15.28, Ord. 3813.
[¶ 3.] From 2002 until 2004 few exemptions existed in the revised sign code. In 2004 the City Council broadened an exemption for signs constructed for a public purpose. The original 2002 building permit exemption stated:
The following types of signs and activities are exempt from the provisions 15.28.040(A) [sic]1:
* * *
10. Signs required or specifically authorized for a public purpose by any law, statute or ordinance; which may be of any type, number, area, height above grade, location, illumination, or animation, required by law, statute or ordinance under which the signs are erected. In no event, however, shall such sign or part thereof contain an advertising message.
RCMC § 15.28.080(B)(10), Ord. 3813. In 2004 it was changed to:
The following types of signs and activities are exempt from provisions 15.28.080(A):
* * *
10. Signs required or specifically authorized for a public purpose, which may be of any type, number, area, height above grade, location, illumination, or animation.
RCMC § 15.28.080(B)(10), Ord. 4030.
[¶ 4.] In March 2005, relying on the public purpose exemption of the ordinance, Epic began construction of four electronic reader boards in four different locations, all in railroad right-of-ways in Rapid City. Epic did not obtain a permit before beginning construction. Shortly after construction began, the Building Official red tagged the signs and issued a stop work order because Epic had not obtained a sign permit.2
[¶ 5.] On April 20, 2005, Epic appealed the Building Official's decision to the Sign Code Board of Appeals (Board), pursuant to RCMC § 15.28.270.3 In its appeal, Epic argued that it did not need a sign building permit because it was utilizing the public purpose exemption of the sign code. After deliberations, the Board voted to continue Epic's appeal to May 18, 2005, so that notice of the hearing could be sent to all adjacent landowners. At the conclusion of the May hearing, the Board upheld the Building Official's decision that Epic did not fit within the public purpose exemption. Epic appealed the decision of the Board to the City Council on May 24, 2005.
[¶ 6.] Around that same time the City Council amended the sign building permit exemption that Epic was attempting to utilize. The new language of the exemption provided:
The following types of signs and activities are exempt from the provisions 15.28.080(A):
* * *
10. Signs for a public purpose, as declared by the City Council, which may be of any type, number, area, height above grade, location, illumination, or animation; provided that any request for such a declaration can only be made by a public body exercising governmental authority.
RCMC § 15.28.080(B), Ord. 5067. The City Council sought to change the exemption, in part, because the Council found it was in the best interest of the public to amend the language of the section for the purpose of clarifying both the language and the original intent of the Council and for insuring that all future uses of this exemption would be approved by the Council. Preamble to Ord. 5067. The ordinance also contained a section that specifically stated that it would be retroactive and apply to all signs that are currently proposed or under construction. Ord. 5067. The ordinance was first read May 16, 2005, and became effective July 5, 2005.
[¶ 7.] Epic's appeal of the Board's decision was heard during a July 18, 2005, City Council meeting. Epic strenuously disputed the City Attorney's argument that only signs approved by a governing body or a body exercising governmental authority could use the public purpose exemption. Epic relied on the plain language of the ordinance effective at the time it began construction, which did not identify what body was required to specifically authorize signs for a public purpose. Epic also disputed the City Attorney's contention that the signs would not serve a public purpose, highlighting all of the civic and charitable organizations that would be allowed to use the signs at no cost. These groups included, but were not limited to, the Journey Museum, the Dahl Fine Arts Center, the Convention and Visitors Bureau and the Rapid City Area Hospitality Association.
[¶ 8.] After considering the arguments, the City Council voted 9-1 to overturn the decision of the Board and allow the signs to be finished under the public purpose exemption to the sign code as it existed when construction began.
[¶ 9.] On October 3, 2005, Lamar filed a petition for writ of certiorari challenging the jurisdiction of the City Council's decision to overturn the Board and a writ of mandamus seeking to compel the Building Official to reinstate the stop work order on all four of Epic's signs. On October 14, 2005, Epic filed a motion for leave to intervene, which was granted after a hearing on the motion held October 28, 2005. The parties stipulated to the certified record of all proceedings that were presented to the Board and the City Council on November 15, 2005.
[¶ 10.] On December 2, 2005, a hearing was held on Lamar's petitions for writ of certiorari and writ of mandamus. No additional evidence was offered at the hearing. The Honorable Judge A.P. Fuller issued a memorandum opinion denying Lamar's requests on December 21, 2005, relying on the certified record and the arguments of counsel. In his decision, Judge Fuller found that the City Council had jurisdiction to hear the appeal of the Board and that Lamar failed to show that the City Council exceeded its jurisdiction by acting fraudulently, arbitrarily or with willful disregard of undisputed or indisputable proof.
[¶ 11.] Lamar filed a motion for reconsideration on December 27, 2005. On January 11, 2006, Judge Fuller signed the findings of fact and conclusions of law denying Lamar's petitions and their motion for reconsideration. Lamar filed its notice of appeal on February 17, 2006.
[¶ 12.] "In certiorari proceedings, the initial scope of review is limited to determining whether the inferior courts, officers, boards or tribunals had jurisdiction to take the action under review, and whether they properly utilized their authority." In re Writ of Certiorari as to Wrongful Payments of Attorney Fees Made by Brookings Sch. Dist. Sch. Bd., 2003 SD 101, ¶ 9, 668 N.W.2d 538, 542. Our review is also limited:
Because this matter was presented to the trial court on certiorari, our scope of review is limited to the questions of whether the inferior courts, officers, boards, and tribunals had jurisdiction and whether they have regularly pursued the authority conferred upon them. "When such courts, officers, boards, or tribunals have jurisdiction over the subject matter and of the party, their action will be sustained unless in their proceedings they did some act forbidden by law or neglected to do some act required by law."
Id. (quoting Peters v. Spearfish ETJ Planning Comm'n, 1997 SD 105, ¶ 6, 567 N.W.2d 880, 883). In addition, because the facts in this case are undisputed,4 we are left with only questions of law. We review questions of law de novo. Hamerly v. City of Lennox Bd. of Adjustment, 1998 SD 43, ¶ 10, 578 N.W.2d 566, 568.
[¶ 13.] Did the City Council have jurisdiction to consider Epic's appeal of the Board's interpretation of the city sign code?
[¶ 14.] Lamar filed a writ of certiorari, contending that the City Council exceeded its jurisdiction when it overturned the decision of the Board. SDCL 21-31-1 provides:
A writ of certiorari may be granted by the Supreme and circuit courts, when inferior courts, officers, boards, or tribunals have exceeded their jurisdiction, and there is no writ of error or appeal nor, in the judgment of the court, any other plain, speedy, and adequate remedy.
[¶ 15.] Chapter 15.28 of the RCMC regulates the construction of...
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