NORMAN SCHAFER and the DEUEL COUNTY CHAPTER OF DAKOTA RURAL ACTION, Petitioners and Appellees, v. DEUEL COUNTY BOARD OF COMMISSIONERS, RONALD BOONE, CHAIRMAN, GORDON ANDERSON, JOSEPH EFFLING, DONALD HANSON, DAROLD HUNT and PAM LYNDE, COUNTY AUDITOR, Respondents and Appellants.
#23798-rev-SEVERSON
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
2006 SD 106, OPINION FILED 11/29/06
2006 SD 106
HONORABLE RONALD K. ROEHR, Judge
ARGUED APRIL 26, 2006
Sioux Falls, South Dakota
Attorney for petitioners and appellees.
JOHN D. KNIGHT
Deuel County Deputy States Attorney
Clear Lake, South Dakota
Attorney for respondents and appellants.
SEVERSON, Circuit Judge
[¶1.] On March 9, 2005, Norman Schafer and the Deuel County Chapter of Dakota Rural Action (Petitioners) filed two initiative petitions with the Deuel County Auditor. The first petition sought to (1) amend the special exceptions provision of Section 278 of the Deuel County zoning ordinance; (2) add a new Section 508 in which Deuel County residents would be granted the right of referendum on legislative decisions of the board of adjustment, zoning board, or county commissioners; and (3) amend the concentrated animal feeding operations set back requirements of Section 1304(6). The second petition proposed changes in the shelterbelt setback requirements of Section 1208.
[¶2.] On March 15, 2005, the Deuel County Board of Commissioners (Deuel County Board) voted to reject both petitions and refused to submit either issue to the voters. Petitioners then filed an application for a writ of mandamus in the circuit court. On July 27, 2005, the circuit court granted the peremptory writ of mandamus. Deuel County Board appeals.
FACTS AND PROCEDURE
[¶3.] On March 9, 2005, Petitioners submitted two county initiative petitions to the Deuel County Auditor. The petitions were submitted pursuant to
This Court is of the opinion that the zoning procedures (
SDCL 11-2-28 and noticed hearings before the planning commission and the board of county commissioners) apply to proposed modifications begun pursuant to zoning statutes (by the board itself or thirty percent of landowners) and that the initiative procedures (SDCL 7-18A-13 and enactment by the board, then submission to the voters) apply to proposed modifications begun pursuant to initiative statutes (by petition of five percent of registered voters).
Deuel County Board appeals arguing that it properly rejected the petitions as they were not submitted in compliance with
STANDARD OF REVIEW
[¶4.] The standard of review for the grant or denial of a writ of mandamus is abuse of discretion. Atkinson v. City of Pierre, 2005 SD 114, ¶ 10, 706 NW2d 791, 795; Lang v. Western Providers Physician Organization, 2004 SD 107, ¶ 7, 688 NW2d 403, 405; Black Hills Central Railroad Co. v. Hill City, 2003 SD 152, ¶ 9, 674 NW2d 31, 34. “An abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence.” Baker v. Atkinson, 2001 SD 49, ¶ 12, 625 NW2d 265, 270 (citation omitted). “In
[¶5.] This case also involves questions of statutory interpretation and application which “are questions of law” and reviewed “under the de novo standard with no deference afforded to the circuit court‘s decision.” Lewis & Clark Rural Water System, Inc. v. Seeba, 2006 SD 7, ¶ 12, 709 NW2d 824, 830 (citations omitted); see also Ernst & Young v. South Dakota Dept. of Revenue, 2004 SD 122, ¶ 4, 689 NW2d 449, 450.
ANALYSIS AND DECISION
ISSUE
[¶6.] Whether the trial court erred in granting a peremptory writ of mandamus pursuant to
[¶7.] “Mandamus is a potent, but precise remedy. Its power lies in its expediency; its precision in its narrow application.” Sorrels v. Queen of Peace Hosp., 1998 SD 12, ¶ 6, 575 NW2d 240, 242. “It commands the fulfillment of an existing legal duty, but creates no duty itself, and acts upon no doubtful or unsettled right.” Id. Due to the extraordinary nature of the remedy, mandamus should only be issued when the duty to act is clear. Black Hills Central Railroad Co., 2003 SD 152, ¶ 13, 674 NW2d at 34.
The writ of mandamus may be issued by the Supreme and circuit courts, to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station[.]
The writ may be issued “where there is not a plain, speedy, and adequate remedy, in the ordinary course of law.”
[¶8.] In the case at hand, Petitioners sought a writ of mandamus to compel Deuel County Board to enact the two proposed initiatives. Further, Petitioners sought to compel the county auditor to place the proposed initiatives on the county ballot with an election to be held on the initiatives within sixty (60) days of the entry of the writ of mandamus. Petitioners argue that
[¶9.]
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. The amendment, supplement, change, modification, or repeal may be requested through a petition by thirty percent of the landowners in the zoning district or districts requesting change.
When a petition to initiate is filed with the auditor, he shall present it to the board of county commissioners at its next regular or special meeting. The board shall enact the proposed ordinance or resolution and shall submit it to a vote of the voters in the manner prescribed for a referendum within sixty days after the final enactment. However, if the petition is filed within three months prior to the primary or general election, the ordinance or resolution may be submitted at the primary or general election.
[¶10.] “The purpose of statutory construction is to discover the true intention of the law which is to be ascertained primarily from the language expressed in the statute.” State v. Jensen, 2003 SD 55, ¶ 15, 662 NW2d 643, 648. We 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. Kinzler v. Nacey, 296 NW2d 725, 728 (SD 1980) (citations omitted). In addition, the rules of statutory construction dictate that “statutes of specific application take precedence over statutes of general application.” Cooperative Agronomy Services v. South Dakota Department of Revenue, 2003 SD 104, ¶ 19, 668 NW2d 718, 723.
[¶11.] In the current case, Petitioners sought to amend certain provisions of the Deuel County Zoning Ordinances via the initiative process. Zoning, by its nature, restricts and regulates use of land which would otherwise be lawful and proper. Although it is axiomatic that private property cannot be taken without due process of law, this limitation does not shield private property from regulations, such as zoning, which are implemented under the police power.
[¶12.] A significant function of local government is to provide for orderly development by enacting and enforcing zoning ordinances. “The ultimate and general purposes of zoning are those traditionally associated with the police power: the public health, safety, morals and general welfare; peace and order; and public comfort and convenience.” McQuillin, The Law of Municipal Corporations, Zoning § 25.17 (3rd ed 2005); Nectow v. City of Cambridge, 277 US 183, 188, 48 SCt 447, 448, 72 LEd 842 (1928) (“The governmental power to interfere by zoning regulations with the general rights of the landowner by restricting the character of his use, is not unlimited, and, other questions aside, such restriction cannot be imposed if it does not bear a substantial relation to the public health, safety, morals, or general welfare.“). More definitively stated:
The essential object or purpose of zoning regulations is to stabilize the use or uses, or the occupancy of property. . . . The ultimate purpose of zoning ordinances is to confine certain classes of
uses and structures to designated areas, and thus bring about the physical development of the community. Furthermore, the purpose of zoning is to conserve, protect, or maintain the value of buildings or other property, and to allow land to be put to the use or uses to which it is best adapted, or the use which is most appropriate. The object of zoning is also to adopt measures to regulate property use in conformance with a comprehensive plan, so as to advance the public welfare. The essence of zoning is to provide a balanced and well-ordered scheme for all activity deemed essential . . . and in an orderly fashion provide for the actual public need for various types of residential, commercial, and industrial structures.
The purpose of zoning is not to provide for the highest or best use of each particular lot or parcel of land within zones or communities, or to permit the maximum possible enrichment of a particular landowner. Rather, zoning is designed to benefit a community generally by sensible planning of land uses, taking into consideration the most appropriate use of land throughout the community.
CJS Zoning and Land Planning § 3 (2005). This Court has recognized that allowing “the use of a person‘s property to be held hostage by the will and whims of neighboring landowners without adherence or application of any standards or guidelines” is repugnant to the due process clause of the Fourteenth Amendment. Cary v. Rapid City, 1997 SD 18, ¶¶ 19-22, 559 NW2d 891, 895. “As a basic instrument of democratic government, the referendum process does not, in itself, violate the due process clause of the Fourteenth Amendment when applied to a rezoning ordinance.” City of Eastlake v. Forest City Enterprises, Inc., 426 US 668, 679, 96 SCt 2358, 2364-65, 49 LEd2d 132, 141 (1976). Nor does it violate the provisions of the South Dakota Constitution. Taylor Properties, Inc. v. Union County, 1998 SD 90, 583 NW2d 638. However, this does not exempt zoning issues from due process issues. The Supreme Court in Eastlake in particular stated:
In basing its claim on federal due process requirements, respondent also invokes Euclid v. Ambler Realty Co., 272 US 365 (1926), but it does not rely on the direct teaching of that case. Under Euclid, a property owner can challenge a zoning restriction if the measure is “clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.” Id. at 395. If the substantive result of the referendum is arbitrary and capricious, bearing no relation to the police power, then the fact that the voters of Eastlake wish it so would not save the restriction. As this Court held in invalidating a charter amendment enacted by referendum:
“The sovereignty of the people is itself subject to those constitutional limitations which have been duly adopted and remain unrepealed.” Hunter v. Erickson, 393 US 385, 392, 89 SCt 557, 561, 21 LE2d 616 (1969).”
[¶13.] In this case, the due process requirements (i.e. the right to notice and a hearing) granted in
[¶14.] In addition, the purpose of a comprehensive county plan in South Dakota is set forth in
The comprehensive plan shall be for the purpose of protecting and guiding the physical, social, economic, and environmental development of the county; to protect the tax base; to encourage a distribution of population or mode of land utilization that will facilitate the economical and adequate provisions of transportation, roads, water supply, drainage, sanitation, education, recreation, or other public requirements; to lessen governmental expenditure; and to conserve and develop natural resources.
From this statute it is clear that counties adopting zoning ordinances implement a long term comprehensive plan for future development in those counties. Zoning regulations when enacted or when amended, under the proper exercise of the police power, cannot exceed the constitutional limitations on governmental restrictions of private property. The differences between
[¶15.] Further, portions of the initiated measures advanced by Petitioners
The legislative power of the state shall be vested in a Legislature which shall consist of a senate and house of representatives. However, the people expressly reserve to themselves the right to propose measures, which shall be submitted to a vote of the electors of the state, and also the right to require that any laws which the Legislature may have enacted shall be submitted to a vote of the electors of the state before going into effect, except such laws as may be necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions. Not more than five percent of the qualified electors of the state shall be required to invoke either the initiative or the referendum.
This section shall not be construed so as to deprive the Legislature or any member thereof of the right to propose any measure. The veto power of the Executive shall not be exercised as to measures referred to a vote of the people. This section shall apply to municipalities. The enacting clause of all laws approved by vote of the electors of the state shall be: “Be it enacted by the people of South Dakota.” The Legislature
shall make suitable provisions for carrying into effect the provisions of this section.
(emphasis added). This section applies only to the legislature and municipalities. Bechen v. Moody County Board of Commissioners, 2005 SD 93, ¶ 13, 703 NW2d 662, 665. There is not a corresponding constitutional right to refer the county government‘s actions to a public vote. Id. However, pursuant to
[¶16.] In this case, Petitioners seek to enact legislation which would amend the special exceptions provision of Section 278 by eliminating the current requirement that special exceptions are subject to approval by the Board of Adjustment and are quasi-judicial administrative in nature. Furthermore, Petitioners proposed legislation would add a new section 508 which would grant Deuel County residents the right of referendum on legislative decisions of the board of adjustment, zoning board, or county commissioners. Currently, the law does not provide for the right of referendum on decisions made by the board of adjustment which are quasi-judicial administrative decisions.
[¶17.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and MEIERHENRY, Justices, concur.
[¶18.] SEVERSON, Circuit Judge, for SABERS, Justice, disqualified.
SEVERSON
Circuit Judge