*1 provided employ- provide remedies as his notice day under the 180 rule set prior judicial contract seeking ment to re- forth in essence, SDCL 3-21-2. he view.” Nemazee v. Mt. Sinai Medical action, seeks the benefit of a tort which Center, 109, 477, 56 Ohio St.3d 564 N.E.2d can brought in circuit court without the (1990). remedies, exhaustion of administrative but also seeks to procedures avoid the under This situation is similar to
[¶ 14.]
the contract
grievances.
See O’Toolev.
facts
this Court’s recent decision in
¶77,
SD
System,
Retirement
2002 SD
Services,
Department
Small v.
Social
347.
attempted
This
case,
2003 SD
would be to the exhaustion of requirement.
remedies
Id. 16.
The circuit court correctly
de-
challenge
termined that
this
to the RIF
burden is on [Chilson] establish that the County Commission, appellees. statute of limitations was tolled.” Witte v. No. 22473. ¶34, 9, Goldey, Instead, 269. argues Chilson that because Supreme Court of South Dakota. seeking money he is damages for breach of Argued Jan. 2003. contract inapplicable. those statutes are Through this route attempts Chilson May Decided statutory avoid both the requirements for
challenging the employment decision and
the school grievance procedures. district’s In framing argument, his Chil- attempts
son characterizing avoid
as a tort action because of his failure to *3 Spearfish. zoning, the City
with For designated was to be as an Agricultural Conservation District with AG designation, a Rural Service District tax except county airport, was to which for its zoned use. Rich- of Richards & Reed C. Richards Law- September Dakota, ards, Deadwood, Attorney South rence Commission authorized its appellants. chairperson annex- sign Lawrence Fitzgerald, John ation to include the Outka, Bruce Attorney, State’s *4 time, airport. At same under SDCL the Attorney, Dead- County Deputy State’s 9-4-5, the Lawrence Commission Dakota, wood, Attorneys appel- for South passed a the an- approving motion County. lee Lawrence nexation of described in unplatted lands Hood, Dardis, Nies & Lester Nies of later, petition. Spearfish A week Dakota, ap- Spearfish, Attorney South for Planning a hearing Commission scheduled al. pellee Krambeck et voluntary petition, on the annexation public published hearing notice of on the KONENKAMP, Justice. later, Approximately matter. one month of a appeal In this from a denial Spearfish Planning Commission held certiorari, circuit we review the writ public Despite objections hearing. its Spearfish City ruling court’s here, territory under a volun- lawfully annexed unanimously Commission recommended tary petition for annexation. We affirm. approve City Council the annex- notices, petition. published ation After
Background City public hearings Council held three on petition A voluntary annex- [If following annexation. The presented under 9-4-1 was ation adopted unanimously: actions Reso- were Spearfish Planning Commission for annexation, lution 2001-33 Ordinance zoning. concurrent for zoning, and Ordinance 905 for the locally known as property involved rural service district. Valley.” It coun- includes the “Centennial ranches, Daryll ty airport, few small Council found Ranch), territory value Propp (formerly Frawley subject land total to vol $1,913,730 peti- untary and the John ranch. The annexation was and that $1,435,298 approximately signed owners tioned consisted value (89.94%)1 2,000 acres shared common border the annexation In cal County Airport Lawrence 440.00 acres no assessed 950,000 (insured value) hanger $ Public structure Airport Private Lessees Custis, 23,030 P. $ Daniel Jr. * 15,940 $ Duane Berke 15,280 Krogstad $ Rich 6,190 $ Bill Povandra 108,280 $ Ted J. Miller culating territory, the total value of the change “The the annexed area Spearfish included the contrary insured val to the initiated ordinance.” County Airport public ue Standard of Review hanger privately and the value of the Our review of certiorari airport hangers ground owned on leases.2 proceedings is limited to whether chal court, officer, To overturn the lenged board, or tribunal applicants filed for a writ of certiorari. had and whether it regularly decision, its the circuit pursued court subtracted authority. Spearfish Peters v. privately airport Comm’n, the value of the 105, 6, ETJ Planning value, hangers from the finding total 883. Certiorari proceed the private owners did not constitute ings “cannot be used to examine evidence of ... the ... territory sought purpose “owners to for the of determining the correct Nevertheless, be annexed.”3 the court finding....” ness of a Willard v. Civil public Falls, held that the insured value of the Service Bd. Sioux 75 S.D. hanger properly (1954). included the total Constru value of the ing and that the a statute entails answering question *5 law; thus, of more owners than three-fourths of the we review the circuit court’s signed total value had petition. statutory The interpretation Ridley de novo. applicants appeal, asserting following Comm’n, Laurrence 2000 SD (1) ¶ 143, 5, (citations errors: “The and county exceeded 619 N.W.2d omitted): their authority accepting the values purpose The statutory con voluntary used in the petition.” struction is to discover the true intention (2) “The authority exceeded since of its the law which pri is be ascertained (3) the annexed area contiguous.” is not marily from the language expressed in the 165,720 Star Aviation $ Other Estate Tracts Real Ranches, Frawley 130,530 Inc. $ 404.77 acres 87,830
William Carlstrom $ 154.57 acres 49,220 Richard Carlstrom $ Family 185,070 Uttke Limited Pt. $ 280.00 acres * 176,640 John H. $ 797.24 acres $1,913,730 Total $1,435,298 of Value 75% $1,721,150 Value of Petitioners Percentage Petitioners of Value 89.94% * non-petitioner Denotes 2. Airport improve- The Lawrence properly total value of the within the boundaries, ments located including $1,595,230. within its without the leased is Of privately hangers ground on leases amount, petitioners accounted for public hanger building. and the The annex- $1,402,650 percent or 87.93 of the total value. signed by ation owners Thus, required value was well over the private hangers, which were assessed for tax statutory minimum amount of not less than purposes property. as real three-fourths of the total value of the seeking annexation.
3. We need not review the correctness of the circuit court’s decision to exclude the value of private hangars ground. on leased Anderson, only term means City v. “value” SDCL 9-4-1 City Rapid statute. ¶ 7, N.W.2d 291-92 the value” of real 2000 SD “assessed sub- (citations omitted). The intent of a ject statute and there- Legislature fore, upheld from what the is determined the circuit court erred when it think said, than we it should rather what city’s decision include insured phrases Id. in a said. Words public airport hanger have value of the plain meaning their given must be territory. statute total value of the On Guttormson, 1996 SD and effect. Moss v. precise point, the statute is silent. ¶ (citations 76, 10, 551 N.W.2d omit- Accordingly, we must as [¶ ted). statutes, presume we interpreting meaning certain the of the term “value” as not Legislature did intend Statutory used in 9-4-1. wording review a trial result. Id. We absurd given ordinary meaning, unless it clearly fact under the findings of court’s appears from the context another and its erroneous standard conclusions meaning is intended. Douville v. Chris the de standard. law under novo ¶ tensen, 33, 11, 2002 SD ¶ 146, 5, Rapp, SD Marion v. not statutory When term is de 88, 90. N.W.2d fined, according it we construe to its ac cepted usage. Spearfish Planning ETJ
Analysis
Decision
Comm’n,
at
Territory
1. Value
ordinary meaning
at 885. The
of the term
first contend that
price
“value”
“the
monetary
worth
declaring
prop-
court
it
the circuit
erred
services,
something;
goods,
the amount of
city to
insured
er for the
use the
or money
something
will command in
*6
public hanger.
argu-
To address this
the
an exchange.”
Dictionary
Black’s Law
ment,
language of
9-
we review the
SDCL
(7th ed.1999).
1549
Voluntary
that
4-1.
under
[¶
Several courts have declared that
requires
petition
statute
must be
(1)
in voluntary annexations the “assessed val-
by
than
signed:
not less
three-fourths
(2)
voters,
property
ue” of the
must be used. But
registered
by
of the
and
the
those cases all dealt with statutes
owners of not less than three-fourths of
territory sought
the
the word
or some
the value of
to be
included
“assessed”
vari-
State,
The annexed.4 SDCL 9-4-1.
ation of it.
Phoenix
58
of
challenge
8,
(1941);
Ariz.
do not
the first element.5 Rath-
677
(1978).
contrast,
appurtenant
land;
9-4-1 does not which is incidental
SDCL
“value of the terri-
and that which
expressly
by
state that the
is immovable
law.”
value.
If
SDCL
tory”
Accordingly,
must be the assessed
43-1-3.
it
proper
was
to limit
for the
Legislature
city
had intended
“value”
consider
value of the
value,”
certainly
airport
to “assessed
it
could have
land and
value of
airport
specific statutory
hanger
Johnson,
done so.
di-
affixed to
land.
Without
See
therefore,
rection,
think
question
Wash.App.
(city
we
679 III). statute, process Substantive due Under the term with an analysis examination begins “contiguous” “territory separated includes ¶ 13, at Id. allegedly “interest violated.” from municipality by reason of inter- 151-52. 641 N.W.2d at Under Tri vening ownership of used golf land as a III, that applicants are unable to show any by or land course the State of they protected property have a interest any South Dakota or subdivisions thereof.” being applicants not annexed. The cannot 9-4-1. Our review of cases other deprived validly they that have been argue jurisdictions “contiguous” reveals that has jurisdiction, they because interpreted “adjacent,” been to mean “ad- in a protected property have no interest or joining,” having a “substantial common Furthermore, particular zoning law. even ¶ Anderson, boundary.” 77 2000 SD at Esling protected proper- if had a applicant (citations omitted). at 293 N.W.2d interest, ty he has not demonstrated that Here, the annexed of assessed for his use adjoins physically The city. public insured value and for the County Airport, land owned a subdivi- ¶ 11, “truly at hanger was irrational.” Id. Dakota, sion of the State South shares a ¶ 20, at a 153. To sustain Spearfish. common border with the process claim founded on a substantive due Further, length SDCL 9-4-1. total zoning dispute, applicants show must territory the annexed from east to west is “government’s that action ‘suffi- miles, more than three the depth and ciently ‘truly or irrational.’” outrageous’ territory ranges north to south from ¶ (citations Id. at N.W.2d at one-half mile to one-half one and miles. omitted). conclude that and We applicants’ This fact defeats the contention the other were full due applicants afforded is the type this of annexation com- process protection equal under the “corridor,” monly “strip,” referred to as a law. lasso,” or “shoestring,” “long disallowed by majority courts, including Contiguous Territory ¶ Anderson, Court. 77 at SD 19.] The con (citations omitted). sum, N.W.2d at finding tend that the circuit court erred in territory contigu- we conclude territory “contigu annexed was city, ous to shares a common border of Voluntary ous.” annexation under SDCL width, length any reasonable lacks 9-4-1 requires be physical or significant irregular barriers “contiguous.” appli annexed must be shapes, unjustified no narrow cor- argue cants question enclaves, ridors, islands unannexed Spearf is not to the “contiguous” City of territory. argument ish. This fails in both law and Next, we whether consider contiguous, fact. To be terri (1) encompasses community tory contiguous city, must: (2) and is interests, interests natural and reasonable. encompass community of (3) city documented in detail consider- a natural constitute and reasonable Anderson, ation of the inclusion. 77 at SD *9 292; finding that annexation encom- Rapid 612 N.W.2d at Krebs v. and its City of (S.D.1985); passed In City, Big community a of interests. addi- N.W.2d Streeter, tion, petitioners Sioux v. that “we Township 272 N.W.2d stated share (S.D.1978). community a common bond and interest n with Zoning Spearfish and wish to be community.” contributing members Finally, applicants [¶ 25.] designa change contend that the Big Township, Sioux Agriculture zoning tion A-l to an from AG at Court wrote: N.W.2d this in the Agricultural Conservation District annexation natural and reasonable [a] contrary initiated annexed area is to the following justifica- may result from the county zoning ordinance. In June orderly from the resulting a need tions: County passed a the voters of Lawrence development and of the munici- growth county zoning ordinance initiative pal corporation; an outflow benefits response Ranch proposed Frawley to the including and facilities to the services development. recognized The ordinance a outlying territory correspond- without portions that of the annexed terri certain monetary inflow of contribution for ing historically tory designated been as have in an resulting uncompen- such benefits Agriculture by A-l the Lawrence municipal corpora- burden to the sated Comprehensive Plan Zoning and Ordi tion; need expressed or an provided nance. The initiated ordinance and outlying territory has services change no of Centennial municipal corporation facilities that the Valley period a approved be allowed for provide. and to willing is able years. of six Krebs, at 130-31. See also 9^4, city Under SDCL ch a has Here, city that the annexation found authority contiguous to annex territo- reasonable, natural since it was and ry. Municipal subject ap- annexation compatible County’s with com- proval county if the by the commissioners Moreover, plan. the annexed prehensive unplatted, in this territory is as it was within territory is the boundaries case. 9-4-5. Lawrence Coun- SDCL protection Spearfish Department Fire fire ty authority ap- had the Commissioners district, 40-2, Spearfish District School Furthermore, prove the annexation. the retail trade and medical service language of the initiated ordinance did not city. area of the The annexation encom- limit authority commissioners’ passes community a of interests and is approve A proposed annexation. natural and reasonable. city comprehensive planning powers corporate within its and can also limits contend that the zone all within miles of its three a improperly long annexation excluded es- corporate concurrently limits with development located tablished residential county zoning commission. ch 11-2 SDCL adjacent airport property. to the This 11-4; ch Lincoln compelling if argument might city (S.D.1977). Johnson, But initiated the annexation. this is a Although and the residents of has never Court development may did not seek to be an- the issue of a addressed whether territory upon contrary nexed. not zone We conclude did ordinance, jurisdic- authority ap- county zoning exceed its other proving petition. The an- tions have. These courts have held it has “contiguous,” territory, nexed once annexes encom- interests, ter- passes zoning jurisdiction is a over that community exclusive Lomond, ritory. natural and inclusion Ben Inc. v. Idaho reasonable Falls, 209, 212 City Spearfish. P.2d 92 Idaho
681 City (1968) County cease to 1. The and im- (county zoning [¶ 33.] ordinances properly Taylor diluted the city); land annexed to v. value of Es- apply to 837, by 726, ling’s property Bowen, including air- 272 N.C. 158 S.E.2d (after port property (N.C.1968) county in the lost valuation. zone); City South San jurisdiction is fundamentally It unfair to Berry, Cal.App.2d Francisco sweep up unwilling in a landowner “vol- (1953) (same); P.2d untary” expedi- the simple Planning & & County Louisville Jefferson using ent county-owned value of Fortner, 243 Zoning Comm’n v. S.W.2d dilute property to the value of unwill- (same). (Ky.App.1951) ing property. landowner’s owns Here, then, the initiated [¶ 28.] total area 38% of the of the real in estate once the zoning apply ordinance ceased this annexation. Absent value as- county’s territory was removed from the signed airport Esling’s property, this rea- jurisdiction by annexation.7 For property constitutes 30.5% of the total val- son, it matters not whether the zoned property.8 ue of the There could not have agricultural as residential. the land as “voluntary” been a annexation of this land authority. city properly exercised its including county- without the value of the respect, the cir- disagree In one we with property Esling’s because refusal to prema- cuit issue was court sign petition would have been fatal hold, instead, has Spearfísh ture. We pro- the annexation effort. SDCL 9-4-1 exclusive to zone the petition part vides long- and that the no territory is signed by annexation must be “the owners subject county zoning to the initiated er of not less than three value fourths of the ordinance. territory sought to be annexed!.]” Affirmed. It was unreasonable to include the [¶ 29.] airport property determining Justice, GILBERTSON, Chief peti- value of the annexation MEIERHENRY, and ZINTER generally tion. exclud- Public Justices, concur. determining ed in value for annexation. public streets, example, alleys, park- For SABERS, Justice, dissents. ways e.g. are sidewalks excluded. See .SABERS, Justice, (dissenting). Holmes, County City Denver v. (1965). I dissent actions of P.2d because the Colo. 902-3 right case were annex- ation, illegal. unreasonable and should not to do right but it have the properties review of the record 8. A reveals that The amount and value of the Spearfish immediately zoned the involved are: upon annexation. 440 Acres No assessed value $950,000
Hangar: Appraised Value: Real Estate Ranches, $130,530
Frawley Inc: 404.77 acres 87,830 $ Carlstrom: 154.57 acres $185,070 Family Uttke LP: 280 acres $176,640. Esling: 797.24 acres *11 Second, surrounding [¶ of landown- there is no “outflow of expense 39.] so at the County that will be liable properties jus- ers. It is not the to the services” annexed to taxation, it is and the municipal tify for corresponding the need inflow of not be property fact, of should diluted his compensation. by annexing In not by the purposes entity for annexation adjacent airport, the to the the subdivision of will not bear the burden annex- which the annexing received the benefits ation. pro- the other without burden The annexed was viding 35.] 2. services.
[¶
natural or reasonable inclu-
not a
Third,
expressed
[¶
there is
40.]
no
only
therefore is
artificial-
sion and
need for
for this
services
annexed territo-
ly contiguous.
ry. Finally,
City
if
willing
the
City
The land annexed
provide
able to
and facilities for
services
inclusion and
not a natural or reasonable
developed
this
subdivision
only artificially contiguous.
therefore is
should have been included in the annex-
an-
support of
determination
ation.
natural
in-
and reasonable
nexation was
stated,
Simply
County
the City,
clusion,
majority
“the
opinion
states
developer
Propp
land to be
wanted
was natural
City found that
mind,
annexed. With this ultimate
in
goal
reasonable,
it was compatible
since
they
only
property necessary
annexed
comprehensive
County’s
with Lawrence
contigu-
to
the Propp
physically
make
land
by
finding
simply
plan.” This
City.
ous to the
This is not a
reasonable
rezoning
led to
untrue. The annexation
extension,
merely
legal ploy
natural
it is
area in direct contravention of the
get
developer,
to
what
and Coun-
prohibited
which
initiated ordinance
such
ty
get
voters;
not
rezoning
could
from the
Furthermore,
zoning changes.
annex-
land
Exit 17 so
around
that it could
excluded the residential subdivision
ation
in
developed
piecemeal
fashion.
adjacent
airport property
which is
County
[¶
3. The
acted unrea-
strip
in a
into
extends
sonably
ignoring
the initiated or-
Exhibit A attached
property. See
hereto
dinance.
Voluntary
Map.
Annexation
as
annexation meets
37.] This
none of
County’s
disregard
[¶
blatant
majority opinion
the criteria cited
of the voter’s initiated
un-
ordinance was
Big
Township Sioux
from
determine
Propp
Spearf-
reasonable.
and the
whether the annexation is reasonable and
years
change
ish
been
battling
have
(S.D.1978).
natural.