DUANE ABATA, DONALD BURGER, and BARRETT WENDT, Plaintiffs and Appellees, v. PENNINGTON COUNTY BOARD OF COMMISSIONERS, and LLOYD LACROIX, MARK DISANTO, DEB HADCOCK, GEORGE FEREBEE, and RON BUSKERUD, in their capacity as members of the Pennington County Board of Commissioners, and JULIE PEARSON, in her capacity as the Pennington County Auditor, Defendants and Appellants.
#28704-a-DG
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
07/10/19
2019 S.D. 39
THE HONORABLE JANE WIPF PFEIFLE Judge
APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA. CONSIDERED ON BRIEFS ON APRIL 29, 2019
MICHAEL M. HICKEY KELSEY B. PARKER of Bangs, McCullen, Butler, Foye & Simons, LLP Rapid City, South Dakota Attorneys for plaintiffs and appellees.
MATTHEW E. NAASZ of Gunderson, Palmer, Nelson & Ashmore, LLP Rapid City, South Dakota Attorneys for defendants and appellants.
[¶1.] Duane Abata, Donald Burger, and Barrett Wendt (collectively the Citizens) brought a declaratory judgment action challenging the validity of a zoning ordinance amendment passed by the Pennington County Board of Commissioners (Board). The parties filed cross-motions for summary judgment. The circuit court granted the Citizens’ motion, finding the ordinance void for lack of compliance with statutory notice requirements. The Board appeals. We affirm.1
Facts and Procedural History
[¶2.] In April 2016, the Board passed a moratorium on construction permits for alternative energy and mining operations in Pennington County (County). It then formed a committee to review Section 507-B of the Pennington County Zoning Ordinance (PCZO) regulating mining permits. The committee compiled its work into a proposed ordinance amendment, OA 17-02. Notice in the three legal newspapers of the County provided:
NOTICE IS HEREBY GIVEN that the Pennington County Planning Commission and the Pennington County Board of Commissioners will hold a public hearing to consider the following proposed ordinance amendment to the Pennington County Zoning Ordinance adopted as an adjunct to the Pennington County Comprehensive Plan: OA 17-02 — Amendment to Section 103 “Definitions“; Section 205-B-17 “General Agriculture District“; Section 212-B-12 “Heavy Industrial District“; Section 507-B “Mining Permits“; and Section 511 “Fees.”
Said hearing will be held by the Planning Commission on Monday, December 18, 2017, at 9:00 a.m. and the Pennington County Board of Commissioners on Tuesday, January 2, 2018, at 10:30 a.m. in the Commissioners’ Meeting Room at the Pennington County Administration Building, Rapid City, South Dakota. Any interested party may appear and be heard. Copies of the proposed amendments may be viewed at the Planning Department located at 130 Kansas City Street, Suite 200, Rapid City, South Dakota, during regular business hours.
Notice was published on November 29, December 6, and December 13 in the Hill City Prevailer; November 30, December 7, and December 14 in the Pennington County Courant; and December 1, December 8, and December 15 in the Rapid City Journal.
[¶3.] As advertised, the Pennington County Planning Commission (Commission) held a public hearing on December 18, 2017. After concerns were raised regarding OA 17-02, the Commission voted to send the amendment back to the committee and continue discussion to the January 8, 2018 Commission meeting. At the January 2 Board meeting originally noticed for public hearing, no discussion took place and the matter was placed on the consent agenda2 indicating a continuance to the January 16 Board meeting, pending the Commission‘s recommendation. Yet, by January 16, debate continued before the Commission. Thus, the Board‘s consent agenda for its January 16 meeting noted that the matter was again delayed until February 6. Notably, throughout the discussion of OA 17-02, hearing agendas for both the Commission and Board meetings were posted on the County website and bulletin boards 24 hours before the meetings. Meeting attendees were alerted to the dates of continued discussion, which were also recorded in meeting minutes posted on the County website.
[¶4.] At the January 8 Commission meeting, it was brought to the Commission‘s attention that unforeseen circumstances prevented the committee from meeting, but the committee would meet the following day. Therefore, discussion of OA 17-02 was continued until January 17. There were several hours of discussion regarding the amendment before the Commission on January 17. The commissioners then voted to continue the matter to the January 22 meeting. The Commission voted to approve OA 17-02 at the January 22 meeting.
[¶5.] With a recommendation from the Commission, the amendment was before the Board at its February 6 meeting for its first reading. Discussion continued to a February 13 special meeting. On February 13, the first reading was continued until February 20 and a special meeting was scheduled for February 23. On February 20, the first reading of OA 17-02 was approved and an additional special meeting
[¶6.] On March 30, 2018, the Citizens filed a complaint for declaratory relief, seeking a judgment that OA 17-02 was “invalid, ineffective, and unenforceable because publication has not been completed” per the provisions of
[¶7.] The parties filed cross-motions for summary judgment. On July 25, 2018, the court issued its order granting the Citizens’ motion for summary judgment. The court found that
- Whether Citizens had standing to challenge OA 17-02.
- Whether Citizens waived their objections to the notice requirements by attending hearings regarding the adoption of OA 17-02.
- Whether OA 17-02 is void for lack of compliance with statutory notice requirements.
Standard of Review
[¶8.] A grant or denial of summary judgment is reviewed de novo. Zochert v. Protective Life Ins. Co., 2018 S.D. 84, ¶ 18, 921 N.W.2d 479, 486. We can affirm the circuit court for any basis which supports the court‘s ultimate determination. BAC Home Loans Servicing, LP v. Trancynger, 2014 S.D. 22, ¶ 8, 847 N.W.2d 137, 140. The facts of this case are undisputed. Thus, we examine the circuit court‘s legal conclusions regarding statutory interpretation with no deference to the court‘s decision. Huston v. Martin, 2018 S.D. 73, ¶ 10, 919 N.W.2d 356, 361.
Analysis and Decision
1. Whether Citizens had standing to challenge OA 17-02.
[¶9.] The Board argues that Citizens do not have standing to bring this action, citing Cable v. Union County Board of Commissioners, 2009 S.D. 59, 769 N.W.2d 817.4 Cable involved a challenge under
[¶10.] We further clarified that as to the “injury in fact” element of standing, to be a person “aggrieved” under
[¶11.] However, the statutory basis for this appeal is different than in Cable, and thus its analysis does not control here. Citizens have instituted a declaratory judgment action under
[¶12.] Thus, to establish standing in a declaratory judgment action the plaintiff must have “personally . . . suffered some actual or threatened injury as the result of the putatively illegal conduct of the defendant.” Benson, 2006 S.D. 8, ¶ 22, 710 N.W.2d at 141 (quoting Parsons v. S.D. Lottery Comm‘n, 504 N.W.2d 593, 595 (S.D. 1993)). Specifically, “a litigant must show: (1) an injury in fact suffered by the plaintiff, (2) a causal connection between the plaintiff‘s injury and the conduct of which the plaintiff complains, and (3) the likelihood that the injury will be redressed by a favorable decision.” Id. We must determine whether the elements for establishing standing in a declaratory judgment action under Benson are met in this case.
[¶13.] Here, Citizens claim an actual or threatened injury resulting from a violation of their due process rights in passing a zoning ordinance affecting their property. A review of the record indicates that the Citizens reside near Perli Quarry, a mining operation owned and operated by Croell Redi-Mix. In fact, Citizens here are the same landowners we considered in Croell Redi-Mix, Inc. v. Pennington County Board of Commissioners, 2017 S.D. 87, 905 N.W.2d 344. In Croell, we determined that the landowners neighboring Perli Quarry could be affected by mining operations by impacting water quality, creating dust, and increasing traffic. Id. ¶¶ 12, 15, 905 N.W.2d at 348, 349.
[¶14.] Furthermore, in the hearings before the Board dealing with OA 17-02, the Citizens expressed a strong concern with how pre-existing mining operations, such as those at Perli Quarry, would be regulated under the zoning ordinance. Specifically, they expressed displeasure with the fact that the pre-existing operations would be “grandfathered in.”6 In a motion to stay before the circuit court in the present action, the Citizens emphasized that due to their proximity to Perli Quarry, the mining operations there would adversely affect them by causing, among other issues, “traffic problems, health issues, environmental concerns, [and] reduced property values[.]” Thus, Citizens have demonstrated an actual or threatened injury affecting their property if OA 17-02 was enacted in violation of Citizen‘s due process rights. The alleged injury is causally connected to the way the Board provided notice of the hearings regarding OA 17-02. Finally, a favorable holding for the Citizens would render OA 17-02 void for violation of the notice provisions within
2. Whether Citizens waived their objections to the notice requirements by attending hearings regarding the adoption of OA 17-02.
[¶15.] The Board argues that “Citizens waived any argument they may have to the adequacy of notice by appearing at the public hearings and being heard.” Thus, it contends that any possible error in the publication process did not prejudice the Citizens. Indeed, the Citizens and their attorneys attended and were heard at nearly every hearing held regarding OA 17-02, in addition to submitting written comments to the Board.7
[¶16.] However, we have stated that statutes setting forth procedural notice requirements for enacting zoning ordinances must be strictly complied with—improperly enacted ordinances are unenforceable from inception. Pennington Cty. v. Moore, 525 N.W.2d 257, 258-59 (S.D. 1994). This is due to the strong due process interests involved because “zoning ordinances are in derogation of common-law property rights and find their authority through the state police power; accordingly, municipalities and other political subdivisions must scrupulously comply with statutory requirements, including notice and hearing, in order to provide due process of law.” Id. at 259 (quoting Carter v. City of Salina, 773 F.2d 251, 254 (10th Cir. 1985)). In the face of noncompliance with procedures for enacting zoning ordinances, we have rejected defenses such as estoppel and public acquiescence. Dodds v. Bickle, 77 S.D. 54, 60-61, 85 N.W.2d 284, 287-88 (1957) (rejecting estoppel defense when city failed to give notice of hearing); Moore, 525 N.W.2d at 258 (rejecting acquiescence defense where challenge was brought over twenty years after initial attempts to enact ordinance where county failed to comply with mandatory notice and hearing requirements).
3. Whether OA 17-02 is void for lack of compliance with statutory notice requirements.
[¶18.] There are two primary rules of statutory construction. “The first rule is that the language expressed in the statute is the paramount consideration. The second rule is that if the words and phrases in the statute have plain meaning and effect, we should simply declare their meaning and not resort to statutory construction.” In re W. River Elec. Ass‘n, Inc., 2004 S.D. 11, ¶ 15, 675 N.W.2d 222, 226 (quoting Goetz v. State, 2001 S.D. 138, ¶ 15, 636 N.W.2d 675, 681). Only “when the language is ambiguous, unclear, or if confining ourselves to the express language would produce an absurd result” do we look beyond the express language of statutes. MGA Ins. Co., v. Goodsell, 2005 S.D. 118, ¶ 17, 707 N.W.2d 483, 487.
[¶19.] “Statutes of specific application take precedence over statutes of general application.” Kolda v. City of Yankton, 2014 S.D. 60, ¶ 18, 852 N.W.2d 425, 431 (quoting In re Estate of Hamilton, 2012 S.D. 34, ¶ 12, 814 N.W.2d 141, 144). Additionally, “[w]e are guided by the principle that a court should construe multiple statutes covering the same subject matter in such a way as to give effect to all of the statutes if possible.” Schafer v. Deuel Cty. Bd. of Comm‘rs, 2006 S.D. 106, ¶ 10, 725 N.W.2d 241, 245.
[¶20.] In reaching its determination that OA 17-02 was void, the circuit court relied upon the provisions of
The planning commission shall hold at least one public hearing on the respective comprehensive plan, zoning ordinance, or subdivision ordinance. Notice of the time and place of the hearings shall be given once at least ten days in advance by publication in a legal newspaper of the county. Following the public hearing, the planning commission shall submit its recommendation to the board.
(Emphasis added.)
After receiving the recommendation of the planning commission the board shall hold at least one public hearing on the respective comprehensive plan, zoning ordinance, or subdivision ordinance. Notice of the time and place of the hearings shall be given once at least ten days in advance by publication in a legal newspaper of the county.
(Emphasis added.) The circuit court noted the plural “hearings” present in both
[¶21.] The Board argues that the statutes that specifically govern notice procedures for zoning ordinance amendments are
The planning commission shall hold at least one public hearing on any proposed change or modification to the plan or ordinances. Notice of the time and place of the hearing shall be given once at least ten days in advance by publication
in a legal newspaper of the county. At the public hearing, any person may appear and request or protest the requested change.
(Emphasis added.)
After the hearing, the board shall by resolution or ordinance, as appropriate, either adopt or reject the amendment, supplement, change, modification, or repeal, with or without changes. Consideration of any changes to the proposed amendment, supplement, change, modification, or repeal may only be done if the time and place of the hearing is published at least ten days in advance in a legal newspaper of the county. If adopted, the board shall publish a notice of the fact of adoption once in a legal newspaper of the county and take effect on the twentieth day after publication. The provisions of
§ 11-2-22 are applicable to this section.
(Emphasis added.) The Board contends that
[¶22.] In reply, Citizens cite
The plan, ordinances, restrictions, and boundaries adopted pursuant to this chapter may be amended, supplemented, changed, modified, or repealed by action of the board. Any such modification or repeal shall be proposed in a resolution or ordinance, as appropriate, presented to the board for adoption in the same manner and upon the same notice as required for the adoption of the original resolution or ordinance.
(Emphasis added.) They argue that because legal notice of “hearings” are required when enacting a zoning ordinance, the same principle applies to zoning ordinance amendments and legal notice is required before each continued hearing.
[¶23.] Here, the meaning of the statutes is clear and we need not examine anything beyond the express language of the statutes. See Goetz, 2001 S.D. 138, ¶ 15, 636 N.W.2d at 681.
[¶24.] However, we must address the fact that
[¶25.] Reading the statutes in this manner fulfills the due process requirements of
[¶26.] But, through the County‘s practice of publicizing the continued hearing dates by announcing the continuance, recording the continuance in the meeting minutes, and posting the agenda 24 hours before the continued hearing, interested persons will be able to attend the continued hearing to have an even greater opportunity to voice their concerns.8 Allowing the Commission and the Board flexibility to continue hearings without the burden of providing legal notice for each continued hearing allows for greater public debate over contentious issues such as OA 17-02. Requiring legal notice for each continued hearing would significantly extend the amount of time to resolve controversial issues to ensure legal notice is provided at least ten days before each hearing. As such, officials may feel disinclined to continue hearings if they had to publish notice of each hearing, which would have the effect of suppressing the time allotted to the expression of public opinion.
[¶27.] We conclude the notice provided for the Commission meeting on December 18 was proper as it was “given once at least ten days in advance by publication in a legal newspaper of the county[]” per
[¶28.] However, the notice for the Board hearing on OA 17-02 was inadequate. The legal notice advertised the Board‘s discussion of the amendment as taking place on January 2, 2018. Yet, the Board did not consider OA 17-02 until February 6. The Board argues that there was proper legal notice of the February 6 hearing because consent agenda items, although intended to be acted upon quickly by one vote, may be removed from the agenda by a member of the public for discussion. This means, according to the Board, that anyone appearing at the January 2 hearing “could have removed the item from the consent agenda and provided public comment.” However, the agendas of the January 2 and 16 Board meetings expressly indicated that consideration of OA 17-02 would be delayed. Such procedure does not fulfill the notice requirements of
[¶29.] The Board “may only” consider changes “to the proposed amendment . . . if the time and place of the hearing is
Conclusion
[¶30.] Citizens have standing to challenge the validity of OA 17-02 and did not waive their objections to statutory notice requirements. Legal notice was proper as to the Commission‘s consideration of OA 17-02, but insufficient as to the Board. OA 17-02 is, therefore, void.
[¶31.] JENSEN and SALTER, Justices, and COMER, Circuit Court Judge, concur.
[¶32.] COMER, Circuit Court Judge, sitting for KERN, Justice, disqualified.
[¶33.] WILBUR, Retired Justice, concurs in part and concurs in result in part.
WILBUR, Retired Justice (concurring in part and concurring in result in part).
[¶34.] I agree that Citizens have standing. However, on issue 3, I write specially on why OA 17-02 was invalidly enacted. In my view, it is necessary to distinguish between actions of the Planning Commission and actions of the Board. Indeed, the Legislature enacted separate statutes in setting forth the notice requirements of boards and commissions within
[¶35.]
The plan, ordinances, restrictions, and boundaries adopted pursuant to this chapter may be amended, supplemented, changed, modified, or repealed by action of the board. Any such modification or repeal shall be proposed in a resolution or ordinance, as appropriate, presented to the board for adoption in the same manner and upon the same notice as required for the adoption of the original resolution or ordinance.
(Emphasis added.) This statute does not apply because the Board did not take action to amend the ordinance; action commenced with the Planning Commission.
[¶36.] Under
The planning commission shall hold at least one public hearing on any proposed change or modification to the plan or ordinances. Notice of the time and place of the hearing shall be given once at least ten days in advance by publication in a legal newspaper of the county. At the public hearing, any person may appear and request or protest the requested change.
(Emphasis added.) Here, the Planning Commission held at least one hearing and gave notice of the time and place of that hearing; thus, notice was adequate.
[¶37.] After the Planning Commission held its final hearing related to OA 17-02 and voted to approve it, the proposed amendment was before the Board for adoption. Under
Notes
Any person interested under a deed, will, written contract, or other writing constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.