Taylor Properties, Inc. v. Union County, 20157

• Decision Date: 12 August 1998
• Docket Number: No. 20157,20157
• Citation: 583 N.W.2d 638,1998 SD 90
• Parties: TAYLOR PROPERTIES, INC., Plaintiff and Appellant, v. UNION COUNTY, South Dakota, Defendant and Appellee.
• Court: South Dakota Supreme Court

Page 638

583 N.W.2d 638

1998 SD 90

TAYLOR PROPERTIES, INC., Plaintiff and Appellant, v. UNION COUNTY, South Dakota, Defendant and Appellee.

No. 20157.

Supreme Court of South Dakota.

Argued Jan. 15, 1998.

Decided Aug. 12, 1998.

Mark V. Meierhenry and Robin Jacobson Houwman of Danforth, Meierhenry & Meierhenry, Sioux Falls, for plaintiff and appellant.

Thomas J. Welk and Roger A. Sudbeck of Boyce, Murphy, McDowell & Greenfield, Sioux Falls, for defendant and appellee.

AMUNDSON, Justice.

¶1 Taylor Properties, Inc. (Taylor) alleged that Union County (County) violated its due process rights and took its property without just compensation in allowing a referendum vote which denied Taylor a change in the zoning of its property. The trial court granted summary judgment to County and Taylor appeals. We affirm.

FACTS

¶2 Taylor purchased approximately 13.61 acres of land from Maynard Larson on March 18, 1994, for $125,000. Taylor's purchase from Larson was made subject to the ability of Taylor to secure a change in zoning. At the time of purchase, the land in question was zoned "agricultural," pursuant to County's zoning and subdivision ordinances, but Taylor intended to attempt to rezone the property as residential and to build condominiums on the site. Even before any zoning change was made, Taylor hired an architect to make plans for the condominium and began clearing the land and making improvements.

¶3 A special county commission meeting was held in May of 1994 to address the rezoning of the land in question. Several residents of the area attended the meeting and voiced their concerns about the proposed development. Roger Boldenow, chairman of the Union County Board of Commissioners, stated that most of the concerns were expressed by residents from Riverland Estates, a development of residential homes, which borders Taylor's property. Boldenow felt the residents' concerns related to Taylor's plans for "the disposal of sewage, [potable] water, access, [and] adequacy of water for fire protection."

¶4 During 1994, Taylor contacted several governmental entities to get approval for the project. Taylor received approval of his plan for the septic system of the development based on his assurance that the wastewater would be treated. Also, Taylor secured a water permit for the project. The Deputy Fire Marshall of South Dakota indicated that changes would have to be made to the tank storage system or an increased number of fire hydrants would have to be included to meet fire protection requirements. The Union County Highway Superintendent informed Taylor about changes that would need to be made to the roads leading into the proposed project.

¶5 On November 16, 1994, Taylor submitted a petition requesting a zoning change of the property from agricultural to residential. On December 6, 1994, the Union County Planning and Zoning Board recommended the requested rezoning. The first reading of the zoning amendment was made at a meeting on December 20, 1994. The second reading occurred at a meeting on December 30, 1994. Finally, a notice of the adoption of the amendment was published on January 5, 1995, with an effective date of January 25, 1995.

¶6 On January 24, 1995, the Union County Auditor received a petition referring the amendment to the zoning ordinances to a public vote. In response, Taylor filed an application for a writ of mandamus and a complaint for damages in the alternative. On March 15, 1995, the trial court denied the writ, allowing the referendum vote on March 21. The ordinance that would have allowed Taylor's development to proceed failed by a vote of 425 to 407. Only 832(12%) of the 6,916 registered voters in Union County voted on the referendum issue.

¶7 As a result of the referendum, Taylor filed an amended complaint in August of 1995, alleging an unconstitutional taking without just compensation. County filed a motion for summary judgment, which was granted on May 21, 1997.

¶8 Taylor appeals, raising the following issues:

1. Whether the trial court erred in finding that County did not violate Taylor's due process rights.

2. Whether the South Dakota zoning ordinances violate the South Dakota Constitution.

STANDARD OF REVIEW

¶9 "Summary judgment is proper only where 'there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.' " Trammell v. Prairie States Ins. Co., 473 N.W.2d 460, 462 (S.D.1991) (quoting Breen v. Dakota Gear & Joint Co., 433 N.W.2d 221, 223 (S.D.1988)). "The evidence must be viewed most favorably to the non-moving party and reasonable doubts should be resolved against the moving party." Groseth Intern., Inc. v. Tenneco, Inc., 410 N.W.2d 159, 164 (S.D.1987) (citations omitted). 'Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the trial court, affirmance of a summary judgment is proper.'

Garrett v. BankWest, Inc., 459 N.W.2d 833, 836-37 (S.D.1990) (quoting Pickering v. Pickering, 434 N.W.2d 758, 760 (S.D.1989)).

¶10 "This court will uphold legislative enactments unless they are clearly and unmistakably unconstitutional." State v. Baker, 440 N.W.2d 284, 287 (S.D.1989) (citations omitted). "All presumptions are in favor of the constitutionality of a statute and continue so until the contrary is shown beyond a reasonable doubt." Id. (citing State v. Bonrud, 393 N.W.2d 785, 788 (S.D.1986)) (other citations omitted). "Statutory interpretation involves questions of law for the circuit court and, as such, our review of such matters is de novo." In re Estate of Gossman, 1996 SD 124, p 6, 555 N.W.2d 102, 104 (citing Sioux Valley Hosp. Ass'n. v. State, 519 N.W.2d 334, 335 (S.D.1994); King v. John Hancock Mut. Life Ins. Co., 500 N.W.2d 619, 621 (S.D.1993)).

DECISION

¶11 1. Taylor's due process rights.

¶12 Taylor first argues that South Dakota law does not allow a referendum vote on rezoning ordinances and, therefore, Taylor's due process rights have been violated. Taylor contends there is an inherent conflict between any interpretation that SDCL 11-2-22 allows a referendum vote on rezoning issues and SDCL 7-18A-15.1, which states that there can be no referendum on matters which are purely administrative. Thus, Taylor contends that rezoning is merely an administrative matter.

¶13 SDCL 11-2-30 outlines the procedure followed after a petition for rezoning has been filed:

The board of county commissioners shall thereafter by resolution or ordinance, as appropriate, either adopt or reject such amendment, supplement, change, modification or repeal, and if it is adopted by the board of county commissioners, a summary of the same shall be prepared by the county planning commission, reviewed by the state's attorney, and published once in the official newspaper in such county and take effect on the twentieth day after its publication. The provisions of § 11-2-22 shall be applicable hereto.

In turn, SDCL 11-2-22 provides:

The county comprehensive plan or any adjunct thereto may be referred to a vote of the qualified voters of the county pursuant to §§ 7-18A-15 to 7-18A-24, inclusive. The effective date of a county comprehensive plan or adjunct thereto on which a referendum is to be held shall be suspended by the filing of a referendum petition until the referendum process is completed. However, when a comprehensive plan or adjunct thereto is referred to a referendum vote, no land uses that are inconsistent with the county comprehensive plan or adjunct thereto may be established between the time of adoption of the plan by the county commission, as provided in § 11-2-20, and the time of the referendum vote. (Emphasis added.)

SDCL 7-18A-15.1 provides a statutory distinction between legislative and administrative acts and which may be referred to a public vote:

Any legislative decision of a board of county commissioners is subject to the referendum process. A legislative decision is one that enacts a permanent law or lays down a rule of conduct or course of policy for the guidance of citizens or their officers. Any matter of a permanent or general character is a legislative decision.

No administrative decision of a governing body is subject to the referendum process, unless specifically authorized by this code. An administrative decision is one that merely puts into execution a plan already adopted by the governing body itself or by the Legislature. Supervision of a program is an administrative decision. Hiring, disciplining and setting the salaries of employees are administrative decisions.

¶14 This Court must look at the wording of the statutes in question and interpret them according to their plain meaning. To that end, we have stated:

'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. The intent of a statute is determined from what the legislature said, rather than what the courts think it should have said, and the court must confine itself to the language used. Words and phrases in a statute must be given their plain meaning and effect. When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Court's only function is to declare the meaning of the statute as clearly expressed. Since statutes must be construed according to their intent, the intent must be determined from the statute as a whole, as well as enactments relating to the same subject.'

Moss v. Guttormson, 1996 SD 76, p 10, 551 N.W.2d 14, 17 (quoting U.S. West Communications, Inc. v. Public Utilities Comm'n, 505 N.W.2d 115, 122-23 (S.D.1993)).

¶15 Taylor contends a comprehensive reading of these statutes indicates that the comprehensive plan is subject to a referendum, but the rezoning of an already approved plan is merely an administrative function. However,...