Tibbs v. Moody Cnty. Bd. of Comm'rs

• Decision Date: 09 July 2014
• Docket Number: No. 26897.,26897.
• Citation: 851 N.W.2d 208,2014 S.D. 44
• Court: South Dakota Supreme Court
• Parties: Shawn TIBBS, Virgil Stembaugh, Gene Gullickson and Janet Gullickson, Petitioners and Appellants, v. MOODY COUNTY BOARD OF COMMISSIONERS, sitting as The Board of Adjustment, and Mustang Pass, LLC, Respondents and Appellees.

851 N.W.2d 208

2014 S.D. 44

Shawn TIBBS, Virgil Stembaugh, Gene Gullickson and Janet Gullickson, Petitioners and Appellants,

v.MOODY COUNTY BOARD OF COMMISSIONERS, sitting as The Board of Adjustment, and Mustang Pass, LLC, Respondents and Appellees.

No. 26897.

Supreme Court of South Dakota.

Argued May 28, 2014.

Decided July 9, 2014.

Mitchell A. Peterson of Davenport, Evans, Hurwitz & Smith, LLP, Sioux Falls, South Dakota, Attorneys for petitioners and appellants.

Jack H. Hieb, Zachary W. Peterson of Richardson, Wyly, Wise, Sauck & Hieb, LLP, Aberdeen, South Dakota, Attorneys for appellee Moody County Board of Commissioners Sitting as Board of Adjustment.

James S. Simko of Cadwell, Sanford, Deibert & Garry, LLP, Sioux Falls, South Dakota, Attorneys for appellee Mustang Pass, LLC.

KONENKAMP, Justice.

[¶ 1.] The Moody County Board of Adjustment granted a conditional use permit to allow a concentrated animal feeding operation in Moody County. Shawn Tibbs, Virgil Stembaugh, and Gene and Janet Gullickson (the Citizens) petitioned the circuit court for a writ of certiorari challenging the board of adjustment's decision to grant the conditional use permit. The Citizens also argued that the statutory scheme governing appeals to circuit courts from county-level decisions on conditional use permits violated their equal protection rights. The circuit court denied the writ and the Citizens appeal.

Background

[¶ 2.] On January 16, 2013, Mustang Pass, LLC applied for a conditional use permit (CUP) to construct a concentrated animal feeding operation in Moody County. The zoning officer issued a written recommendation to the Moody County Board of Adjustment that the CUP be approved with the addition of six conditions. On January 23, 2013, the Moody County Board of Adjustment published a notice in the local newspaper announcing that a public hearing on Mustang's application would be held on February 5, 2013. At the hearing, the board received evidence, including testimony from Mustang's principals, the engineers who prepared the CUP, and members of the public. At a later meeting in March, the board approved Mustang's CUP. The board issued written findings and conditional use permit requirements, identified the board's jurisdiction to consider Mustang's application, outlined the procedural history on Mustang's CUP, certified Mustang's compliance with the rules governing conditional use requests, and imposed certain “special conditions and safeguards.”

[¶ 3.] The Citizens petitioned the circuit court for a writ of certiorari to invalidate Mustang's CUP. They challenged the board's jurisdiction to consider Mustang's application, asserting that Moody County failed, in 2003, to properly enact its zoning ordinances. These ordinances created the Moody County Board of Adjustment and gave it power to hear and consider CUPs. In the Citizens' view, because the zoning ordinances were not properly enacted, all action taken by the Moody County Board of Adjustment since 2003 was void ab initio, including the decision by the board of adjustment to approve Mustang's CUP. They also asserted that Moody County did not have legislative authority to delegate to the board of adjustment original jurisdiction to consider a CUP application, and therefore, the board's approval of Mustang's CUP was void. Finally, the Citizens argued that SDCL chapter 11–2 and the statutory scheme governing appeals from CUP-related decisions at the circuit court level violates the Equal Protection Clause of the South Dakota Constitution because it gives some aggrieved parties a more favorable de novo review before the circuit court and other aggrieved parties less favorable review by writ of certiorari. SeeS.D. Const. art. VI, § 18.

[¶ 4.] After a hearing in September 2013, the circuit court issued a memorandum decision that was later incorporated into its findings of fact and conclusions of law. The court found “no procedural defects” in Moody County's 2003 adoption of its zoning ordinances and accordingly ruled that the board of adjustment was validly created. The court further concluded that Moody County did not improperly delegate its authority to the board of adjustment, even though SDCL 11–2–17.3 (the statute giving counties the power to designate the approving authority for CUPs) was not in effect at the time Moody County adopted its ordinance. In examining SDCL chapter 11–2, the circuit court concluded that a harmonious and workable reading of the statutes necessitated the conclusion that the Moody County Board of Adjustment had both appellate and original jurisdiction.

[¶ 5.] On the Citizens' equal protection claim, the court detailed the legislative history leading to the inconsistent appellate processes from county CUP decisions. See Armstrong v. Turner Cnty. Bd. of Adjustment, 2009 S.D. 81, ¶¶ 10–11, 772 N.W.2d 643, 647–48. The court noted that in 2003, the Legislature amended SDCL 11–2–53 and gave boards of adjustment the power to consider certain CUP issues. Then, in 2004, the Legislature removed the statutory provision giving boards of adjustment the authority to approve CUPs. But the Legislature enacted SDCL 11–2–17.3 giving counties the power to designate the approving authority for CUPs. The Legislature did not make “any reference to an appeal procedure if the county-designated entity was not a board of adjustment.” See Armstrong, 2009 S.D. 81, ¶ 10, 772 N.W.2d at 648. Therefore, “the same action of approving or denying a conditional use permit may have a different appeal procedure depending on which entity approves the permit.” Id. ¶ 11.

[¶ 6.] The circuit court then applied the traditional two-part test for claims that a statute violates equal protection: (1) does the statute create an arbitrary classification among citizens, and (2) “if the classification does not involve a fundamental right or suspect group,” is there a rational relationship “between a legitimate legislative purpose and the classification created”? See In re Davis, 2004 S.D. 70, ¶ 5, 681 N.W.2d 452, 454. On the first prong, the court concluded that, “[w]hen applied, the statute [SDCL 11–2–17.3] gives every county in South Dakota the same opportunity to choose which entity they would like to place the conditional use authority in.” Thus, the court found that the Legislature did not create a classification. The court ruled alternatively that even if the statute created a classification among citizens, the Citizens “would still fail to prove arbitrariness.” As the court explained, “It makes sense to allow the individual counties the flexibility to determine the mechanism by which zoning issues are considered and appealed.” The court highlighted the “great disparity between counties in this state,” and opined that “[i]t may be appropriate to allow Moody County, or any county, different options when dealing with zoning issues.” The Citizens' recourse, according to the court, “rests primarily in the ballot box.”

[¶ 7.] Although the court found no arbitrary classification, it addressed the second prong—whether there is a rational relationship between a legitimate legislative purpose and the classification. The court determined that a legitimate legislative purpose existed in the allowance of flexibility to each county on zoning issues and that differing standards of review are rationally related to that purpose. It concluded that the Citizens failed to meet their burden that there is no rational relationship between the legitimate legislative purpose and the classification created and denied the Citizens' petition for a writ of certiorari.

[¶ 8.] On appeal, the Citizens assert that the statutory scheme applicable to the appeal procedure from a board of adjustment decision is unconstitutional in violation of the Equal Protection Clause and that the Moody County Board acted in excess of its jurisdiction, failed to pursue its authority in a regular manner, and failed to do an act required by law.

Analysis and Decision

1. Equal Protection

[¶ 9.] The Citizens argue that the writ of certiorari standard of review applied to a board of adjustment's CUP decision violates their right to equal protection of the law. SeeSDCL 11–2–61, –62. They claim an inequality exists because citizens in counties without a board of adjustment receive a more favorable de novo standard of review of CUP decisions at the circuit court level under SDCL 7–8–30, while citizens in counties with a board of adjustment receive a less favorable standard of review by writ of certiorari under SDCL chapter 11–2. The Citizens further contend that these differing standards of reviewat the circuit court level are arbitrary and in no way relate to county flexibility in handling local zoning issues. Although the Citizens insist that this implicates a fundamental right because their property rights are at stake, they claim alternatively that even if a fundamental right is not involved, there is no “legitimate legislative purpose for providing an absolute right to de novo review of CUP decisions to some citizens, while simultaneously restricting the review for other similarly situated citizens located in other counties.”

[¶ 10.] A statute's constitutionality and proper interpretation are questions we review de novo. In re Z.B., 2008 S.D. 108, ¶ 5, 757 N.W.2d 595, 598 (citing Buchholz v. Storsve, 2007 S.D. 101, ¶ 7, 740 N.W.2d 107, 110). “Any legislative act is accorded a presumption in favor of constitutionality and that presumption is not overcome until the unconstitutionality of the act is clearly and unmistakably shown and there is no reasonable doubt that it violates fundamental constitutional principles.” Accounts Mgmt., Inc. v. Williams, 484 N.W.2d 297, 299 (S.D.1992) (citations omitted). The constitutional question here is whether the Equal Protection Clause prohibits the differing standards of review applied to CUP decisions at the circuit court level. SeeSDCL 7–8–30 (appeal from a county decision); SDCL 11–2–61,...