Schafer v. Deuel County Bd. of Com'Rs., No. 23798.

• Court: Supreme Court of South Dakota
• Writing for the Court: Severson
• Citation: 725 N.W.2d 241,2006 SD 106
• Parties: Norman SCHAFER and the Deuel County Chapter Of Dakota Rural Action, Petitioners and Appellees, v. DEUEL COUNTY BOARD OF COMMISSIONERS, Ronald Boone, Chairman, Gordon Anderson, Joseph Effling, Donald Hanson, Darold Hunt and Pam Lynde, County Auditor, Respondents and Appellants.
• Docket Number: No. 23798.
• Decision Date: 29 November 2006

725 N.W.2d 241 2006 SD 106 Norman SCHAFER and the Deuel County Chapter Of Dakota Rural Action, Petitioners and Appellees,
v.
DEUEL COUNTY BOARD OF COMMISSIONERS, Ronald Boone, Chairman, Gordon Anderson, Joseph Effling, Donald Hanson, Darold Hunt and Pam Lynde, County Auditor, Respondents and Appellants. No. 23798. Supreme Court of South Dakota. Argued April 26, 2006. Decided November 29, 2006.

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James G. Abourezk, Sioux Falls, South Dakota, Attorney for petitioners and appellees.

John D. Knight, Deuel County Deputy States Attorney, Clear Lake, South Dakota, Attorney for respondents and appellants.

SEVERSON, Circuit Judge.

[¶ 1.] On March 9, 2005, Norman Schafer and the Deuel County Chapter of Dakota Rural Action (Petitioners) filed two initiative petitions with the Deuel County Auditor. The first petition sought to (1) amend the special exceptions provision of Section 278 of the Deuel County zoning ordinance; (2) add a new Section 508 in which Deuel County residents would be granted the right of referendum on legislative decisions of the board of adjustment, zoning board, or county commissioners; and (3) amend the concentrated animal feeding operations set back requirements of Section 1304(6). The second petition proposed changes in the shelterbelt setback requirements of Section 1208.

[¶ 2.] On, March 15, 2005, the Deuel County Board of Commissioners (Deuel County Board) voted to reject both petitions and refused to submit either issue to the voters. Petitioners then filed an application for a writ of mandamus in the circuit court. On July 27, 2005, the circuit court granted the peremptory writ of mandamus. Deuel County Board appeals.

FACTS AND PROCEDURE

[¶ 3.] On, March 9, 2005, Petitioners submitted two county initiative petitions to the Deuel County Auditor. The petitions were submitted pursuant to SDCL 7-18A-11. On March 15, 2005, Deuel County Board voted to reject both petitions and refused to submit either issue to a public vote. Petitioners then filed an application for a writ of mandamus in the circuit court. On July 27, 2005, the circuit court granted the writ stating:

This Court is of the opinion that the zoning procedures (SDCL 11-2-28 and noticed hearings before the planning commission and the board of county commissioners) apply to proposed modifications begun pursuant to zoning statutes (by the board itself or thirty percent of landowners) and that the initiative procedures (SDCL 7-18A-13 and enactment by the board, then submission to the voters) apply to proposed modifications begun pursuant to initiative statutes (by petition of five percent of registered voters).

Deuel County Board appeals arguing that it properly rejected the petitions as they were not submitted in compliance with SDCL 11-2-28.

STANDARD OF REVIEW

[¶ 4.] The standard of review for the grant or denial of a writ of mandamus is abuse of discretion. Atkinson v. City of Pierre, 2005 SD 114, ¶ 10, 706 N.W.2d 791, 795; Lang v. Western Providers Physician Organization, 2004 SD 107, ¶ 7, 688 N.W.2d 403, 405; Black Hills Central Railroad Co. v. Hill City, 2003 SD 152, ¶ 9, 674 N.W.2d 31, 34. "An abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence." Baker v. Atkinson, 2001 SD 49, ¶ 12, 625 N.W.2d 265, 270 (citation omitted). "In

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applying the abuse of discretion standard, we do not determine whether we would have made a like decision, only whether a judicial mind, considering the law and the facts, could have reached a similar decision." Id.

[¶ 5.] This case also involves questions of statutory interpretation and application which "are questions of law" and reviewed "under the de novo standard with no deference afforded to the circuit court's decision." Lewis & Clark Rural Water System, Inc. v. Seeba, 2006 SD 7, ¶ 12, 709 N.W.2d 824, 830 (citations omitted); see also Ernst & Young v. South Dakota Dept. of Revenue, 2004 SD 122, ¶ 4, 689 N.W.2d 449, 450.

ANALYSIS AND DECISION ISSUE

[¶ 6.] Whether the trial court erred in granting a peremptory writ of mandamus pursuant to SDCL ch 7-18A.

[¶ 7.] "Mandamus is a potent, but precise remedy. Its power lies in its expediency; its precision in its narrow application." Sorrels v. Queen of Peace Hosp., 1998 SD 12, ¶ 6, 575 N.W.2d 240, 242. "It commands the fulfillment of an existing legal duty, but creates no duty itself, and acts upon no doubtful or unsettled right." Id. Due to the extraordinary nature of the remedy, mandamus should only be issued when the duty to act is clear. Black Hills Central Railroad Co., 2003 SD 152, ¶ 13, 674 N.W.2d at 34. SDCL 21-29-1 grants circuit courts authority to issue this writ:

The writ of mandamus may be issued by the Supreme and circuit courts, to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station[.]

The writ may be issued "where there is not a plain, speedy, and adequate remedy, in the ordinary course of law." SDCL 21-29-2.

[¶ 8.] In the case at hand, Petitioners sought a writ of mandamus to compel Deuel County Board to enact the two proposed initiatives. Further, Petitioners sought to compel the county auditor to place the proposed initiatives on the county ballot with an election to be held on the initiatives within sixty (60) days of the entry of the writ of mandamus. Petitioners argue that SDCL 7-18A-13 and SDCL 11-2-28 are not inconsistent as they merely provide alternate means of amending zoning ordinances. Petitioners contend that SDCL 11-2-28 is applicable when the proposed modifications have commenced under the zoning statutes. Conversely, Petitioners assert that the procedures outlined in SDCL ch 7-18A apply to proposed initiatives which have begun pursuant to the initiative statutes.

[¶ 9.] SDCL 11-2-28 outlines the procedure that must be followed in order to adopt or amend county zoning ordinances. It provides:

The plan, ordinances, restrictions, and boundaries adopted pursuant to this chapter may be amended, supplemented, changed, modified, or repealed by action of the board. Any such modification or repeal shall be proposed in a resolution or ordinance, as appropriate, presented to the board for adoption in the same manner and upon the same notice as required for the adoption of the original resolution or ordinance. The amendment, supplement, change, modification, or repeal may be requested through a petition by thirty percent of the landowners in the zoning district or districts requesting change.

SDCL 7-18A-9 through 7-18A-14 articulate the general process for proposing and

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adopting initiated measures by counties. SDCL 7-18A-13 provides:

When a petition to initiate is filed with the auditor, he shall present it to the board of county commissioners at its next regular or special meeting. The board shall enact the proposed ordinance or resolution and shall submit it to a vote of the voters in the manner prescribed for a referendum within sixty days after the final enactment. However, if the petition is filed within three months prior to the primary or general election, the ordinance or resolution may be submitted at the primary or general election.

[¶ 10.] "The purpose of statutory construction is to discover the true intention of the law which is to be ascertained primarily from the language expressed in the statute." State v. Jensen, 2003 SD 55, ¶ 15, 662 N.W.2d 643, 648. We are guided by the principle that a court should construe multiple statutes covering the same subject matter in such a way as to give effect to all of the statutes if possible. Kinzler v. Nacey, 296 N.W.2d 725, 728 (S.D.1980) (citations omitted). In addition, the rules of statutory construction dictate that "statutes of specific application take precedence over statutes of general application." Cooperative Agronomy Services v. South Dakota Department of Revenue, 2003 SD 104, ¶ 19, 668 N.W.2d 718, 723. SDCL 11-2-28 is a statute of specific application. SDCL 7-18A-13 is a statute of general application. Kinzler, 296 N.W.2d at 728 ("To the extent that SDCL 11-2-22 does contain provisions that are different from those contained in SDCL 7-18A-15 through 7-18A-23, e.g., number of signers required and time of election, those specific provisions must be given effect.").

[¶ 11.] In the current case, Petitioners sought to amend certain provisions of the Deuel County Zoning Ordinances via the initiative process. Zoning, by its nature, restricts and regulates use of land which would otherwise be lawful and proper. Although it is axiomatic that private property cannot be taken without due process of law, this limitation does not shield private property from regulations, such as zoning, which are implemented under the police power. U.S.Const. amend. XIV, § 1; Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116, 121, 49 S.Ct. 50, 51, 73 L.Ed. 210 (1928) (citing Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926)); Tillo v. City of Sioux Falls, 82 S.D. 411, 415, 147 N.W.2d 128, 130 (S.D.1966) ("Property is always subject to the police power[.]").

[¶ 12.] A significant function of local government is to provide for orderly development by enacting and enforcing zoning ordinances. "The ultimate and general purposes of zoning are those traditionally associated with the police power: the public health, safety, morals and general welfare; peace and order; and public comfort and convenience." McQuillin, The Law of Municipal Corporations, Zoning § 25.17 (3rd ed. 2005); Nectow v. City of Cambridge, 277 U.S. 183, 188, 48 S.Ct. 447, 448, 72 L.Ed. 842...