931 N.W.2d 714
S.D.2019Background
- Pennington County proposed OA 17-02, an amendment to mining- and zoning-related provisions; notices were published in three county legal newspapers in late Nov/Dec 2017.
- The Planning Commission held a December 18 public hearing and continued consideration through multiple meetings before approving OA 17-02 on January 22.
- The County Board was noticed to hear OA 17-02 on January 2, 2018, but postponed formal consideration until February; the Board ultimately adopted OA 17-02 on February 27, 2018, with adoption notice published once.
- Nearby landowners (Citizens), who previously litigated mining impacts, sued for declaratory relief claiming statutory notice violations under SDCL chapter 11-2 (and related statutes), arguing defective notice for continued hearings and inadequate publication of adoption.
- The circuit court granted summary judgment for Citizens, holding the amendment void for failure to legally notice each continued hearing. The County Board appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to bring declaratory action | Citizens: they suffered actual/threatened injury to property and due process from invalidly enacted zoning affecting Perli Quarry | Board: plaintiffs lack unique injury; Cable standard for "person aggrieved" should bar suit | Court: Citizens have standing under Declaratory Judgment standards (Benson); injury, causal link, and redressability satisfied |
| Waiver of notice objections by attendance | Citizens: attendance and participation did not waive statutory notice rights | Board: Citizens and counsel attended hearings and thus waived defects; no prejudice | Court: No waiver; statutory notice for zoning must be strictly complied with and defenses like estoppel/acquiescence rejected |
| Whether legal notice to Planning Commission was sufficient | Citizens: continued hearings required fresh legal notice under SDCL 11-2-18/-19 | Board: SDCL 11-2-29 controls amendments and requires only one legally noticed hearing before the Commission | Court: Notice to Commission was adequate under SDCL 11-2-29; continued hearings may be advertised by agenda/minutes and need not be re-published legally |
| Whether legal notice to County Board was sufficient | Citizens: Board never legally published the date (Feb 6) when it actually considered and altered the amendment, violating SDCL 11-2-30 | Board: initial January notice and agenda practices (consent agenda) sufficed; item could have been removed for comment | Court: Board failed to provide legally required notice of the hearing actually held where it considered/changed the amendment; OA 17-02 is void |
Key Cases Cited
- Cable v. Union County Bd. of Comm'rs, 769 N.W.2d 817 (S.D. 2009) (standing under SDCL 7-8-27 requires a unique injury to be a person "aggrieved")
- Croell Redi-Mix, Inc. v. Pennington County Bd. of Comm'rs, 905 N.W.2d 344 (S.D. 2017) (local landowners can be affected by mining operations; background on parties' interests)
- Benson v. State, 710 N.W.2d 131 (S.D. 2006) (standards for standing in declaratory judgment actions: injury, causation, redressability)
- Pennington County v. Moore, 525 N.W.2d 257 (S.D. 1994) (zoning notice/hearing statutes must be strictly complied with; failure renders ordinances unenforceable)
- Wedel v. Beadle County Comm'n, 884 N.W.2d 755 (S.D. 2016) (due process purpose of chapter 11-2: afford affected landowners opportunity to be heard)
- Schafer v. Deuel County Bd. of Comm'rs, 725 N.W.2d 241 (S.D. 2006) (statutes covering same subject should be construed to give effect to all provisions)