931 N.W.2d 714
S.D.2019Background
- In late 2017 the Pennington County Planning Commission drafted and considered Ordinance Amendment OA 17-02 to amend mining-related provisions of the county zoning ordinance; notices for initial hearings were published in the county legal newspapers in Nov–Dec 2017.
- The Planning Commission held hearings, continued consideration multiple times, and ultimately recommended the amendment on January 22, 2018.
- The County Board’s first noticed date for a Board hearing was January 2, 2018, but actual Board consideration (first reading and later adoption) did not occur until February 20–27, 2018; the only legal newspaper publication following adoption was a single notice of adoption.
- Citizens (nearby landowners affected by nearby Perli Quarry) sued for declaratory relief, arguing OA 17-02 was void for failure to comply with statutory notice requirements (both for hearings and publication after adoption).
- The circuit court granted summary judgment for the Citizens, finding the ordinance void for failure to provide required legal notice of each continued hearing; the Board appealed.
- The South Dakota Supreme Court affirmed in part: it held the Planning Commission’s initial notice complied with statute, Citizens had standing and did not waive objections, but the Board failed to provide legally required notice of the Board hearing at which the ordinance was actually considered, rendering OA 17-02 void.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to bring declaratory judgment challenge | Citizens contend their property and due‑process rights were threatened by improperly enacted zoning changes affecting their quarry‑adjacent land | Board argued Citizens lacked a unique injury and thus lacked standing (citing prior standing standard) | Citizens have standing under the Declaratory Judgment Act: they alleged an actual/threatened injury, causal link, and redressability |
| Waiver by attending hearings | Citizens: attendance and participation does not waive statutory notice defects; strict compliance required for zoning notice | Board: attendance and participation (and being heard) estops Citizens from challenging notice | No waiver; equitable defenses (estoppel, acquiescence) do not cure statutory notice failures for zoning enactments |
| Adequacy of Planning Commission notice (continued hearings) | Citizens argued multiple continuances required new legal notices | Board: initial published notice sufficed; continued postings and agendas adequately informed public | Planning Commission’s published notice met SDCL 11‑2‑29; continued hearings did not require new legal publication |
| Adequacy of County Board notice (date of actual consideration) | Citizens: Board failed to publish the time/place of the hearing at which it actually considered and changed the amendment (Feb. dates) as required by SDCL 11‑2‑30 | Board: initial January publication and consent‑agenda practice gave sufficient notice; interested parties could have removed item for comment | Board’s legal notice was inadequate because the date on which the Board actually considered and changed the amendment (Feb. 6 and subsequent meetings) was not published as required; OA 17‑02 is void |
Key Cases Cited
- Stern Oil Co. v. Brown, Inc., 817 N.W.2d 395 (S.D. 2012) (appellate standard for affirming summary judgment when any basis supports ruling)
- Cable v. Union County Bd. of Comm’rs, 769 N.W.2d 817 (S.D. 2009) (standing under statute requires unique injury for ‘‘person aggrieved’')
- Croell Redi‑Mix, Inc. v. Pennington Cty. Bd. of Comm’rs, 905 N.W.2d 344 (S.D. 2017) (recognizing landowners near Perli Quarry could be affected by mining operations)
- Pennington Cty. v. Moore, 525 N.W.2d 257 (S.D. 1994) (zoning notice and hearing statutes must be strictly complied with; noncompliant ordinances are unenforceable)
- Benson v. State, 710 N.W.2d 131 (S.D. 2006) (standing in declaratory judgment actions requires actual or threatened injury, causal connection, and redressability)
- Wedel v. Beadle Cty. Comm’n, 884 N.W.2d 755 (S.D. 2016) (due process requires affected landowners an opportunity to voice concerns at noticed hearings)