Little v. Hanson Cnty. Drainage Bd., 29463-a-SPM

CourtSupreme Court of South Dakota
Writing for the CourtMYREN, Justice
Citation2022 S.D. 63
PartiesJON LITTLE AND SHIRLEY LITTLE AND CLARICE LITTLE, Plaintiffs and Appellants, v. HANSON COUNTY DRAINAGE BOARD, HANSON COUNTY, SOUTH DAKOTA, Defendant and Appellee, and JAMES F. PAULSON, Defendant.
Docket Number29463-a-SPM
Decision Date26 October 2022

2022 S.D. 63

JON LITTLE AND SHIRLEY LITTLE AND CLARICE LITTLE, Plaintiffs and Appellants,
v.

HANSON COUNTY DRAINAGE BOARD, HANSON COUNTY, SOUTH DAKOTA, Defendant and Appellee,

and JAMES F. PAULSON, Defendant.

No. 29463-a-SPM

Supreme Court of South Dakota

October 26, 2022


ARGUED AUGUST 24, 2021

APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT HANSON COUNTY, SOUTH DAKOTA THE HONORABLE CHRIS S. GILES Judge

CHRIS A. NIPE OF LARSON AND NIPE MITCHELL, SOUTH DAKOTA ATTORNEYS FOR PLAINTIFFS AND APPELLANTS.

MIKE C. FINK HANSON COUNTY DEPUTY STATE'S ATTORNEY BRIDGEWATER, SOUTH DAKOTA ATTORNEYS FOR DEFENDANT AND APPELLEE.

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MYREN, Justice

[¶1.] The Littles[1] appealed to the circuit court a decision by the Hanson County Drainage Board (Board) granting a drainage permit to James F. Paulson.[2]The permit application sought to clean out a pre-existing ditch. The Littles claim the Board failed to follow the approval procedures outlined in its ordinances and South Dakota statutes. The circuit court affirmed the Board's decision. The Littles now appeal to this Court, raising the additional issues that the circuit court failed to admit relevant testimony and failed to take judicial notice of a prior proceeding involving the parties. We affirm.

Facts and Procedural History

[¶2.] In May 2020, Paulson applied for a drainage permit (application) with the Board under Hanson County's Drainage Ordinance (ordinances) § 2.01.[3] In the application, Paulson sought to remove approximately 2.5 feet of debris that had collected in a ditch located in a township road's right-of-way. The clean-out of the

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ditch would return it to its pre-existing, natural state. In compliance with § 2.02 of the ordinances, the application identified the land to be drained, the area of drainage, the outlet's location, a description of the project, and included consent from the downstream landowner. It also included two signatures from members of the Spring Lake Township Board of Supervisors (Township), granting the Township's approval of the permit. The Township's approval was necessary because § 2.02 of the ordinances required "written approval of the governing agency for any drainage into a road right-of-way[.]" The Township is the governing agency regarding the right-of-way at issue. Paulson also attached a statement detailing what occurred at the Township's special meeting on May 6, 2020. It stated that the Township discussed Paulson's request to receive the drainage permit at issue here and the separate issue of Paulson's removal of a driveway and culvert without replacement. The statement was signed by the Township's chairman and clerk and indicated that the Township considered the requested permit.

[¶3.] Regarding the permit request for debris removal, the Board published notice of a public meeting in a Hanson County newspaper on May 28, 2020, and June 4, 2020. The notice informed the public that the Board was to hold a hearing on the application on June 16, 2020. Under § 2.07 of the ordinances, "[a]t the County's direction, the applicant shall prominently post the property in a manner most visible to the nearest public right-of-way, giving notice for the permit

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hearing."[4] The Board did not direct Paulson to "post" a notice of the meeting on the property.

[¶4.] The Board considered Paulson's application on June 16, 2020 (June meeting). Paulson, Jon Little, Shirley Little, and the Littles' legal counsel were present. Paulson presented information on the application, and the Littles objected to the application. The Board tabled the application to seek advice from its attorney about whether the application needed additional signatures. The Board did not indicate at that meeting when it would continue its consideration of the application.

[¶5.] Paulson's application was placed on the agenda for the July 7, 2020, board meeting (July meeting). The Hanson County auditor emailed the Littles' counsel notifying him of the July meeting more than 24 hours before that meeting. She also posted the meeting's agenda online. Minutes from the July meeting indicate that Paulson presented information on the application, including the nature and the extent of the project. At the meeting, the Littles' counsel appeared

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and opposed the application, but the Littles were not personally present. The meeting minutes do not indicate that Littles' counsel raised concerns about notice for the hearing or that counsel requested a postponement so that his clients could attend.

[¶6.] According to the minutes, "[t]he Board first determined that the application was submitted by the proper party and that the application include[d] the appropriate Township and landowner consent." The minutes indicate that the Board read aloud the factors from § 2.09 of the ordinances and, after considering the input of those in attendance, made specific findings regarding the application. The findings paralleled the factors in § 2.09 of the ordinances. Based on its findings, the Board unanimously approved the application.

[¶7.] Following the approval of the application, the Littles filed a complaint in circuit court, alleging that the Board violated its ordinances and various state statutes. The Littles claimed the Township failed to post notice of its meeting, so its approval of the permit was invalid. They further argued that because the Board failed to publish notice of the July meeting and failed to require Paulson to post a notice on his property, its approval of the permit was invalid. The Littles also argued that the application was incomplete because it did not reference the driveway and culvert that Paulson had previously removed.

[¶8.] The Board responded that the Township, not the Board, controls the ditch where the culvert and driveway were located, and therefore, the removal of the culvert and driveway held no relevance to the current proceeding. Additionally, the Board contended that it had no obligation to investigate whether the Township

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complied with the Township's approval procedures. The Board noted that it satisfied its notice requirements; specifically, it published notice of the June meeting, the Littles' counsel received personal notice of the continued July meeting, and the Board had elected not to require Paulson to post a notice on the property. The circuit court initially determined that the Board committed no procedural errors and that the Board was entitled to rely on the validity of the Township's approval process. It also noted that the Littles should have taken their concerns about the Township's approval process before the Township.

[¶9.] The Littles then made an offer of proof regarding the Township's approval process. The Township's clerk testified that the Township held a meeting to approve the permit, but it did not post any notice about the meeting, and, to his knowledge, the Township did not publish the minutes from the meeting. After hearing the offer of proof, the court again ruled that this testimony was not relevant because the Board could take the Township's authorization at face value.

[¶10.] The circuit court took evidence and heard arguments regarding whether the Board's decision was an abuse of discretion. The Littles asked the court to take judicial notice of a prior court proceeding involving an earlier drainage application filed by Paulson (2019 proceeding) about the driveway and culvert removal and sought to admit a transcript from the court hearing in that prior proceeding.[5] The Board objected, arguing the information from the 2019 proceeding

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was not presented to the Board during its decision-making process on the current application.

[¶11.] The circuit court rejected the judicial notice request, noting that the 2019 proceeding involved a separate application and indicated that "we need to stick to what was presented to them in June, at the June 16th meeting, and matters presented to them at the July 7th meeting." Despite this ruling, the circuit court allowed Jon Little to testify, over the Board's objection, that Paulson had removed the driveway and culvert before he submitted his first drainage application, and the removal of those items affected the ditch's drainage. The Littles then argued that the Board abused its discretion by approving the drainage permit when it had clear knowledge, based upon the 2019 proceeding, that the permit violated its ordinances due to Paulson's prior improper removal of the culvert and driveway. The Board countered, arguing that it did not abuse its discretion because it followed the ordinances and reached its decision based on the evidence presented.

[¶12.] In its findings of fact and conclusions of law, the circuit court determined that because the Board did not direct Paulson to post notice of the meeting on his property, this was not required by the applicable ordinance. The circuit court also found that the Hanson County auditor notified the Littles' counsel more than 24 hours before the continued hearing in July, and the Littles' counsel appeared at the hearing and did not request a postponement. It concluded that the

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Board followed the procedures required in its ordinances and by State statute. The court determined that the Board did not have "an obligation to make further inquiry into whether or not the [T]ownship proceeded properly on giving permission" for the drainage project. The circuit court concluded that the Board did not abuse its discretion by granting the permit. The Littles appeal and raise five issues, which we condense and restate.

Analysis and Decision

1. Whether the Board complied with the proper procedures for approving the permit.

[¶13.] As both parties note, we review a board's decision to grant or deny a drainage permit under an abuse of discretion standard. See Carmody, 2020 S.D. 3, ¶ 29, 938 N.W.2d at 442. "An abuse of discretion 'is a fundamental error of...

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