Welsh v. Centerville Tp.

• Decision Date: 23 June 1999
• Docket Number: No. 20593,20593
• Citation: 595 N.W.2d 622,1999 SD 73
• Parties: Jeremiah WELSH, Plaintiff and Appellee, v. CENTERVILLE TOWNSHIP, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 622

595 N.W.2d 622

1999 SD 73

Jeremiah WELSH, Plaintiff and Appellee, v. CENTERVILLE TOWNSHIP, Defendant and Appellant.

No. 20593.

Supreme Court of South Dakota.

Argued March 23, 1999.

Decided June 23, 1999.

Mark V. Meierhenry, Danforth, Meierhenry & Meierhenry, Sioux Falls, for plaintiff and appellee.

James G. Abourezk, Sioux Falls, for defendant and appellant.

John H. Davidson, Vermillion, for Amicus Curiae SD Ass'n of Towns and Townships.

Jerome B. Lammers, Lammers, Lammers & Kleibacker, Madison, for Amicus Curiae South Dakota Pork Producers.

GILBERTSON, Justice

¶1 Landowner brought suit to enjoin Township from enforcing a Township ordinance designed to regulate the construction of commercial feedlots within the Township. Both parties filed cross motions for summary judgment. The circuit court, First Judicial Circuit, granted the landowner's motion for summary judgment finding the Township did not have, pursuant to its general authorization under SDCL 8-2-1(4), the power to zone. The trial court also found the ordinance passed by the Township was void and of no effect upon the landowner. The Township appeals. Based on the facts of this case, we affirm.

FACTS AND PROCEDURE

¶2 Centerville Township (Township) is an organized township located within Turner County, South Dakota. On January 25, 1998, the Township's Board of Supervisors enacted an ordinance regulating, among other things, the size and location of commercial feedlots.

¶3 Jeremiah Welsh (Welsh) announced his intent to establish a concentrated hog feeding operation on his property located within the Township. He wanted to build a 41 foot by 408 foot barn with an eight foot concrete pit with a manure capacity of 848,109 gallons, for the feeding of approximately 5,400 hogs per year. The building would be composed of a wood frame with a steel covering. The hog barn is to be located approximately 1,850 feet from the nearest home. Two other homes are located within 2,240 feet and 3,490 feet from the proposed hog barn. The barn will be located within 1,025 feet of 292nd Avenue and less than 100 feet from 460th Avenue, two Township roads. Under the Township's ordinance, this operation would be considered a commercial feedlot and Welsh would have to apply for a special exception to build and operate the feedlot.

¶4 On February 10, 1998, Welsh applied for and was approved for a conditional use permit from the Turner County Planning and Zoning Commission for this facility. The Turner County approval was conditioned on his compliance with the State's manure plan, an agreement not to spread manure near Centerville and to plant a shelterbelt of trees. Welsh also applied for a General Permit for a large-scale animal-feeding unit from the State of South Dakota Department of Environment and Natural Resources. At oral argument we were informed Welsh has been issued the requisite State permit.

¶5 Although the ordinance required it, Welsh never formally or informally applied for a permit from the Township. After his successful hearing before the Turner County Planning and Zoning Committee, the Township sent Welsh a letter advising him the Township ordinance would be enforced against him. If he failed to follow the ordinance he would be assessed fines in the amount of $10,000 per day. Welsh filed suit for a writ of prohibition to enjoin Centerville Township from prohibiting his commercial feeding operation. Both parties filed motions for summary judgment. The trial court entered judgment in favor of Welsh, finding the Township did not, pursuant to its general authorization under SDCL 8-2-1(4), have the authority to zone. The trial court found the ordinance passed by the Township was void and of no effect upon Welsh.

¶6 The Township appeals raising the following issue:

Whether Centerville Township has the power, under SDCL 8-2-1(4), to regulate a commercial feedlot operation within the boundaries of the Township.

STANDARD OF REVIEW

¶7 Our standard of review for interpretation of a statute is well settled. A question of statutory interpretation is a question of law and as such is reviewed de novo. Maynard v. Heeren, 1997 SD 60, p 5, 563 N.W.2d 830, 833 (citing Weisbeck v. Hess, 524 N.W.2d 363, 364-5 (S.D.1994); see also Delzer v. Penn, 534 N.W.2d 58, 61 (S.D.1995) ("statute construction is question of law fully reviewable")). "We interpret statutes in accord with legislative intent." McIntyre v. Wick, 1996 SD 147, p 51, 558 N.W.2d 347, 362 (citing Fall River County v. South Dakota Dept. of Revenue, 1996 SD 106, p 13, 552 N.W.2d 620, 624.).

ANALYSIS AND DECISION

¶8 Whether Centerville Township has the power, under SDCL 8-2-1(4), to regulate a commercial feedlot operation within the boundaries of the Township.

¶9 This case hinges on whether SDCL 8-2-1(4) expressly authorizes the Township to regulate a commercial feedlot. The statute provides:

Each organized township in the state is a body corporate and has power:

(1) To sue and be sued;

(2) To acquire, by purchase, condemnation, or other lawful means, real property within or without the limits of the township, necessary or convenient for township purposes, or for the exercise of the powers granted to the township;

(3) To make such contracts and purchase and hold such personal property as may be necessary for the exercise of its corporate or administrative powers or for the protection of the property of its inhabitants, including the purchase of or contracting for fire-fighting equipment or protection;

(4) To pass bylaws or ordinances for the government of such township and for the protection of the lives and property of its inhabitants, and to enforce the same in its corporate name before any magistrate;

(5) To make such orders for the disposition, regulation, or use of its corporate property as may be deemed by the board of supervisors conducive to the best interests of the inhabitants.

SDCL 8-2-1. (Emphasis added). We find the Township does not have this power under SDCL 8-2-1(4) for the reasons that follow. ¹

¶10 We have said, a "township is a political subdivision of state government and like counties and municipalities, its right to act is dependent upon a grant from the state." Breckweg v. Knochenmus, 81 S.D. 244, 252, 133 N.W.2d 860, 864 (1965). Townships have no inherent or constitutionally granted police powers. "It only has such powers as are expressly delegated by the state or are necessarily implied from expressly delegated powers." Id. "[Townships] have been denominated 'quasicorporations,' and their whole capacities, powers, and duties are derived from legislative enactments." Van Antwerp v. Dell Rapids Township of Minnehaha County, 5 S.D. 447, 451, 59 N.W. 209, 210 (1894). SDCL 8-2-10 reiterates the precept a township's powers are restricted to those expressly granted or necessary to exercise the granted powers. It provides:

No organized township shall possess or exercise any powers except such as are enumerated in this chapter, or are especially given by law or are necessary to the exercise of the powers so enumerated or granted.

Thus, the authority to zone or regulate in some other manner must be an express grant of authority to a township by the Legislature.

¶11 To determine what statutory power the Township is granted by the Legislature, we must look to the "plain, ordinary and popular meaning of the statutory language." Fall River County, 1996 SD 106 at p 13, 552 N.W.2d at 624. We must assume the Legislature meant what the statute said and give the "words and phrases a plain meaning and effect." McIntyre, 1996 SD 147 at p 51, 558 N.W.2d at 362. A township's powers will be strictly construed. Van Antwerp, 5 S.D. at 451, 59 N.W. at 210.

¶12 The Township argues that SDCL 8-2-1(4) sanctions its ordinance since the ordinance is for "the protection of lives and property of its inhabitants." Welsh claims the Township is attempting to zone by the enactment of this ordinance. He points out that under SDCL ch 11, zoning is the sole province of the counties. Township and the Amici for the South Dakota Association of Towns and Townships, argue Township is not attempting to zone, but instead using police power under SDCL 8-2-1(4) to: 1) abate a nuisance; 2) protect the property value of the surrounding neighbors; or 3) protect the water from potential pollution. They argue this ordinance is in turn "protecting the lives and property of its inhabitants" and therefore permissible.

¶13 SDCL 11-2-1(10) defines a "zoning ordinance" as:

"Zoning ordinance," the ordinance adopted by the board to regulate by districts or zones the location, height, bulk, and size of buildings and other structures, and accessory uses, percentage of lot which may be occupied, the size of lots, courts, and other open spaces, the density and distribution of population, the location and use of buildings, and structures for trade, advertising uses, industry, residence, recreation, public activities, or other purposes, and, the uses of land for trade, industry, recreation, or other purposes.

See also SDCL 11-6-1(11). Based on this definition, the argument that the Township ordinance is not a zoning ordinance, is untenable. Thus, the remaining issue is whether the Township has the authority to enact this "zoning ordinance."

¶14 Townships do have the power to zone in limited instances that are not applicable here. SDCL 8-2-9 grants townships the power to zone only when a municipality of fifty thousand or more is within four miles of the township. Had the Legislature granted all townships the power to zone under SDCL 8-2-1(4), then there would have been no need to enact SDCL 8-2-9 or SDCL 8-2-8. ² The Township argues that SDCL 8-2-9 and 8-2-8 are but limited restrictions on the general authority of a township to zone rather than a limited grant of authority to zone. Given the fact that by statute and case law townships cannot exercise any powers not expressly granted them, this argument of implied...