Save Centennial Valley Ass'n, Inc. v. Schultz

• Decision Date: 17 October 1979
• Docket Number: No. 12526,12526
• Citation: 284 N.W.2d 452
• Parties: SAVE CENTENNIAL VALLEY ASSOCIATION, INC., a South Dakota Corporation, Frawley Ranches, Inc., a South Dakota Corporation, and Henry J. Frawley, Jr., Plaintiffs and Appellants, v. R. Earl SCHULTZ, Boyd E. Larson, Henry Lasher, John Cox and Wallace Furze, as Members of the Board of County Commissioners for Lawrence County, South Dakota, and Julian J. Wolff, Fred A. Wolff, John E. Hinker, Clarence Rath and Merle Meier, doing business as Black Hills Forest Acres, a Partnership, Defendants and Respondents.
• Court: South Dakota Supreme Court

Page 452

284 N.W.2d 452

SAVE CENTENNIAL VALLEY ASSOCIATION, INC., a South Dakota

Corporation, Frawley Ranches, Inc., a South Dakota

Corporation, and Henry J. Frawley, Jr., Plaintiffs and Appellants, v. R. Earl SCHULTZ, Boyd E. Larson, Henry Lasher, John Cox and Wallace Furze, as Members of the Board of County

Commissioners for Lawrence County, South Dakota, and Julian

J. Wolff, Fred A. Wolff, John E. Hinker, Clarence Rath and

Merle Meier, doing business as Black Hills Forest Acres, a

Partnership, Defendants and Respondents.

No. 12526.

Supreme Court of South Dakota.

Oct. 17, 1979.

Rehearing Denied Nov. 27, 1979.

Reed C. Richards of Richards & Richards, Deadwood, for plaintiffs and appellants.

Dale L. Morman of Morman, Smit, Shepard & Hughes, Sturgis, for defendants and respondents Black Hills Forest Acres, a partnership.

Craig Grotenhouse, Lawrence County State's Atty., Deadwood, for defendants and respondents the Board of County Commissioners for Lawrence County, South Dakota.

ULRICH, Circuit Judge.

This case involves a zoning determination made by the Lawrence County Board of County Commissioners concerning the approval of a residential subdivision plat which had been submitted to the Commission by Black Hills Forest Acres.

The parties involved in this appeal are the Lawrence County Board of County Commissioners (Commission); Black Hills Forest Acres, a partnership composed of South Dakota residents (Black Hills); Save Centennial Valley, Inc., a South Dakota corporation comprised of farmers, ranchers and other individual taxpayers; Frawley Ranches, Inc., a South Dakota corporation which is an adjoining landowner to land owned by Black Hills Forest Acres; and Henry J. Frawley, Jr., who is chairman of Save Centennial Valley, Inc., president of Frawley Ranches, Inc., and an individual rancher and taxpayer in Lawrence County who also owns real property adjoining that of Black Hills Forest Acres.

In the summer of 1977, Black Hills had prepared and submitted to the Lawrence County Planning and Zoning Commission a proposed plat for a residential subdivision to be located in Lawrence County in an area known as Centennial Valley. The plat provided for the subdivision of approximately 80 acres of land into 36 residential lots. After review of the proposed plat, the Planning and Zoning Commission submitted it to the Commission for approval. The Commission approved the plat over the objections of the appellants. Appellants then commenced proceedings in circuit court seeking remedies in the forms of injunctive relief, declaratory relief, mandamus and certiorari. The trial court, after having determined that appellants were without an adequate and speedy remedy at law, decided to treat the action as one founded in certiorari and dismissed appellants' requests for injunctive relief, mandamus and declaratory relief. No appeal was taken from these orders of dismissal.

Under the writ of certiorari, appellants argued in the circuit court that the Commission, in approving the plat, had failed to regularly pursue its authority and urged the court to vacate and set aside the Commission's actions on five grounds. First, that the Commission neglected to require a change in zoning before approving the plat; second, that no notice of the hearing at which the plat was approved was given to the general public or the adjoining landowners; third, that no environmental impact statement was furnished along with the proposed plat; fourth, that no notice was furnished to the State Board of Cultural Preservation; and fifth, that the plat, as approved, did not meet various requirements of the county's zoning ordinances. The trial court, after review of the record as returned by the Commission, found that the Commission had jurisdiction of the subject matter and had regularly pursued its authority in approving the plat in relation to the first four allegations. The trial court further found that the Commission had failed to regularly pursue its authority in relation to the fifth allegation and, based on this finding, entered judgment setting aside the Commission's action. This appeal is taken from those portions of the judgment denying appellants relief.

Since this matter was submitted on certiorari, our scope of review is confined to questions touching the jurisdiction of inferior courts, officers, boards, and tribunals, and to the question whether such inferior courts, officers, boards, and tribunals have regularly pursued the authority conferred upon them. SDCL 21-31-1, 21-31-8. 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. State v. State Board of Assessment and Equalization, 3 S.D. 338, 53 N.W. 192 (1892). Under certiorari we will not consider matters outside the record. State v. Costello,36 S.D. 76, 153 N.W. 910 (1915).

Certiorari will not as a rule lie to correct mere errors and irregularities in the exercise of jurisdiction by an inferior court or tribunal which had jurisdiction. It will not lie to review technical lack of compliance with law or be granted to correct insubstantial errors which are not shown to have resulted in prejudice or to have caused substantial injustice to the relator.

14 Am.Jur.2d Certiorari § 10, p. 786 (footnotes omitted).

Appellants do not, as we understand their brief, dispute the fact that the Commission had jurisdiction over the subject matter and the parties and was vested with the power to regulate matters of zoning in Lawrence County. Rather, appellants contend that in the exercise of the power the Commission did not regularly pursue the authority with which it was clothed and thereby exceeded its jurisdiction and rendered its action void. Appellants contend that the authority or jurisdiction of the Commission is derived and regulated by statute and the provisions of the county's comprehensive planning and zoning plan and that the Commission must strictly comply with these provisions in regulating matters of zoning. Appellants argue that any deviation from the statutory regulations or the mandates of the comprehensive plan is an act in excess of jurisdiction which renders such act void. The question therefore presented for our decision is whether the Commission exceeded its jurisdiction in approving the plat; or, stated differently, did it fail to regularly pursue its authority?

Before examining the record of this action, we find it necessary to comment on two of respondents' contentions: First, that the matter is moot; and second, that appellants are not entitled to appeal, since they were successful in the trial court in having the plat vacated. We disagree with both contentions.

With respect to the question of mootness, counsel for respondent Commissioners stated during oral argument before this court that since the commencement of this appeal the Commission has approved a subsequent plat for the residential subdivision in question. Counsel's argument seems to be that this subsequent plat met the various zoning ordinance requirements that were absent in the initial proceedings before the Commission. Respondents contend that it would now be impossible to grant appellants effective relief because of this subsequent action by the Commission, even if this court should decide the appeal in favor of appellants. No written motion has been made by respondents on this issue, nor has any record of the Commission's proceedings been offered to us in support of this request.

In response, appellants argue that if the judgment is permitted to stand unreversed they will suffer a loss of substantial rights. Appellants state that a dismissal of this appeal would have the effect of affirming the judgment finally determining that the relief sought cannot be granted. Appellants contend that if those portions of the judgment from which this appeal is taken are reversed and cannot be pleaded as res judicata, the court could then deal with the parties as they stood at the time the action was commenced and compel respondents to rescind that which was wrongfully done.

It is a well-settled rule that an appellate court should not retain an appeal merely to decide a moot question. Zimmerman v. Bohr, 72 S.D. 78, 30 N.W.2d 4 (1947); Dickson v. Lord, 58 S.D. 643, 238 N.W. 21 (1931); Clarke v. Beadle County, 40 S.D. 597, 169 N.W. 23 (1918), Aff'd,41 S.D. 329, 170 N.W. 518 (1919). If, by reason of lapse of time, circumstances have changed so that the appellate court cannot render a judgment which can be made effective, the appeal must be dismissed. Vale Independent School District No. 28 v. Smeenk, 85 S.D. 182, 179 N.W.2d 117 (1970); State v. City of Veblen, 56 S.D. 394, 228 N.W. 802 (1930). When, however, it appears that the judgment, if left unreversed, will prejudice a party against whom it is rendered as to a fact vital to his rights, it cannot properly be called a moot question. Clarke v. Beadle County, supra. Before this court will dismiss an appeal upon the grounds that the questions involved have become moot it must appear clearly and convincingly that actual controversy has ceased; it must appear that the only judgment which could be entered would be ineffectual for any purpose and would be an idle act so far as concerns rights involved in the action. City of Plankinton v. Kieffer, 69 S.D. 597, 13 N.W.2d 298 (1944); City of Brookings v. Martinson, 60 S.D. 127, 243 N.W. 915 (1932); Smith v. Lyle, 54 S.D. 385, 223 N.W. 318 (1929). Absent such a clear and convincing showing, this court will not dismiss an appeal for mootness. Here there has been no showing that the actual controversies have ceased. It further appears to us from an examination of the record that if appellants are correct in their assertions that the trial court erred in its judgment, they would suffer a substantial loss of their rights if the...