Vitek v. Bon Homme County Bd. of Com'rs, 22216.

• Court: Supreme Court of South Dakota
• Writing for the Court: GILBERTSON, Chief Justice.
• Citation: 650 N.W.2d 513,2002 SD 100
• Parties: Duane VITEK, Michael Neth, Sandy Neth, Steven Neth, and Sharon Neth, Petitioners and Appellants, v. BON HOMME COUNTY BOARD OF COMMISSIONERS, Eugene Kokesh, Allen Sternhagen, John Fathke, John Pesek, Russell Jelsma, and Linda Pesek, Bon Homme County Auditor, Respondents and Appellees, Leo PEDERSEN and Linda Pedersen, Intervenors and Appellees.
• Docket Number: No. 22216.,22216.
• Decision Date: 14 August 2002

650 N.W.2d 513
2002 SD 100

Duane VITEK, Michael Neth, Sandy Neth, Steven Neth, and Sharon Neth, Petitioners and Appellants,
v.
BON HOMME COUNTY BOARD OF COMMISSIONERS, Eugene Kokesh, Allen Sternhagen, John Fathke, John Pesek, Russell Jelsma, and Linda Pesek, Bon Homme County Auditor, Respondents and Appellees,
Leo PEDERSEN and Linda Pedersen, Intervenors and Appellees

No. 22216.

Supreme Court of South Dakota.

Considered on Briefs on May 28, 2002.

Decided August 14, 2002.

650 N.W.2d 514

James G. Abourezk, Sioux Falls, for petitioners and appellants

Lisa Z. Rothschadl, Bon Homme County State's Attorney, Tyndall, for respondents and appellees.

James D. Taylor of Taylor & Miskimins, P.C., Mitchell, for intervenors and appellees.

GILBERTSON, Chief Justice.

[¶ 1.] Duane Vitek, Michael Neth, Sandy Neth, Steven Neth and Sharon Neth (collectively Vitek) appealed the decision of the Bon Homme County Board of Commissioners (County) in granting a variance for the construction of a 3300-head hog finishing facility. The circuit court dismissed for failure to timely and properly perfect the appeal. We reverse and remand.

FACTS AND PROCEDURE¹

[¶ 2.] On April 26, 2001, the Bon Homme County Board of Adjustment (Board) granted a variance to Leo and Linda Pedersen

650 N.W.2d 515

(Pedersen), allowing them to construct a hog confinement facility in Bon Homme County. The state's attorney for Bon Homme County prepared findings of fact and conclusions of law, which Board adopted on May 25. On June 28, County held a hearing regarding Board's decision to grant the variance. County affirmed" the decision and adopted Board's findings of fact and conclusions of law, which were later published on July 25. On July 27, Vitek filed a direct appeal to the First Judicial Circuit

[¶ 3.] On August 13, 723 citizens of Bon Homme County signed petitions with the county auditor seeking a referendum vote. On August 21, County voted unanimously to reject the petitions. In doing so, County stated its action of granting the variance was a quasi-judicial administrative decision, as opposed to a legislative decision, and therefore not subject to the referendum process set forth in SDCL 7-18A-15.1

[¶ 4.] On August 29, Vitek filed an application for writ of mandamus with the circuit court while his direct appeal was still pending. Vitek sought to compel County to submit its decision regarding the variance to a vote. The circuit court denied the writ on September 7, reasoning Vitek had an adequate remedy at law, in the form of his direct appeal, pursuant to SDCL 7-8-27. The circuit court further stated that the appeal constituted Vitek's exclusive remedy under SDCL 7-8-32. Vitek appealed the circuit court's denial of the writ to this Court. See Vitek I, 2002 SD 45, 644 N.W.2d 231. This Court recognized the grant of a writ of mandamus is contingent upon whether the petitioner has "a clear legal right to performance of the specific duty sought to be compelled...." Id. at ¶ 8. We also noted the incomplete nature of the record regarding a detailed ruling on the legislative versus administrative portion of the analysis. Therefore, we reversed the circuit court's decision and remanded for a determination of whether Vitek had a clear legal right to referendum without reference to the exclusive remedy provision in SDCL 7-8-32.

[¶ 5.] In the interim, Vitek proceeded with his direct appeal before the circuit court. Publication of County's decision on July 25 triggered the beginning of the 20-day statutory period to appeal under SDCL 7-8-29. Vitek mailed notice of his appeal on July 26 to the Bon Homme County Clerk of Courts.² He also served copies of the notice by mail on the Chairman of the Bon Homme County Board of Commissioners and the Bon Homme County State's Attorney. Pursuant to an agreement of the parties, the circuit court granted a stay of the direct appeal on August 22, 2001. On October 22, Vitek filed a $250 cash bond in the form of a check, which was cashed on October 24. The circuit court lifted the stay of the direct appeal on October 26.

[¶ 6.] Pedersen moved for judgment on the pleadings on November 21. He alleged that Vitek had failed to personally serve at least one member of the Bon Homme County Board of Commissioners and failed to timely file the bond required in SDCL 7-8-27. County joined in the motion. The circuit court granted Pedersen's motion for judgment by order dated December 17, 2001. Vitek now appeals the circuit court's decision, raising the following issues:

1. Whether service by mail of a notice of appeal on the Chairman of the

650 N.W.2d 516

Bon Homme County Board of Commissioners and on the Bon Homme County State's Attorney is sufficient to perfect Vitek's appeal.

2. Whether Vitek's posting of the $250 cash bond, after the 20-day time limit has expired, deprives the circuit court of jurisdiction.

STANDARD OF REVIEW

[¶ 7.] Vitek appeals the circuit court's judgment on the pleadings in favor of County.

A motion to dismiss under SDCL 15-6-12(b) tests the legal sufficiency of the pleading, not the facts which support it. For purposes of the pleading, the court must treat as true all facts properly pled in the complaint and resolve all doubts in favor of the pleader. "Our standard of review of a trial court's grant or denial of a motion to dismiss is the same as our review of a motion for summary judgment—is the pleader entitled to judgment as a matter of law?"

Steiner v. County of Marshall, 1997 SD 109, ¶ 16, 568 N.W.2d 627, 631 (quoting Estate of Billings v. Deadwood Congregation, 506 N.W.2d 138, 140 (S.D.1993)) (internal citations omitted). Thus, all reasonable inferences of fact must be drawn in favor of the non-moving party and we give no deference to the trial court's conclusions of law. Hansen v. Kjellsen, 2002 SD 1, ¶ 6, 638 N.W.2d 548, 549 (citations omitted).

[¶ 8.] This case also involves the statutory interpretation of SDCL 7-8-27 and 7-8-29, which is reviewed de novo. Our rules of statutory construction are as follows:

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 [this] Court's only function is to declare the meaning of the statute as clearly expressed.

Associated Sch. Bds. of S.D., Inc. v. Hughes County, 2002 SD 41, ¶ 9, 643 N.W.2d 417, 420 (quoting Martinmaas v. Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d 600, 611).

ANALYSIS AND DECISION

[¶ 9.] 1. Whether service by mail of a notice of appeal on the Chairman of the Bon Homme County Board of Commissioners and on the Bon Homme County State's Attorney is sufficient to perfect Vitek's appeal.

[¶ 10.] When County granted Pedersen a variance to build the hog finishing facility, Vitek appealed County's decision to the circuit court. An aggrieved party may appeal a county commission's decision pursuant to SDCL 7-8-27, which reads:

From all decisions of the board of county commissioners upon matters properly before it, there may be an appeal to the circuit court by any person aggrieved upon filing a bond in the amount of two hundred fifty dollars with one or more sureties to be approved by the county auditor conditioned that the appellant shall prosecute the appeal without delay and pay all costs that he may be adjudged to pay in the circuit court. Such bond shall be executed to the county and

650 N.W.2d 517

may be sued in the name of the county upon breach of any condition therein.

Additionally, SDCL 7-8-29 states, "Such appeal shall be taken within twenty days after the publication of the decision of the board by serving a written notice on one of the members of the board...." While these statutes direct when and to whom service is made, they do not direct the method of service.

[¶ 11.] We must note at the outset that this type of appeal falls somewhere between an administrative appeal and an appeal to this Court. An appeal from a county commission...