Garry SCHRANK, Appellee, v. PENNINGTON COUNTY BOARD OF COMMISSIONERS, Appellant, and Alexander Drilling, Appellant.
Nos. 20244, 20269
Supreme Court of South Dakota
Decided Sept. 30, 1998
Rehearing Denied Oct. 29, 1998
1998 SD 108
MILLER, Chief Justice
Considered on Briefs April 28, 1998. Reassigned July 30, 1998.
Ronald D. Buskerud, Pennington County Deputy State‘s Attorney, Rapid City, for appellant Pennington County Board of Commissioners.
Dennis H. Hill of Costello, Porter, Hill, Heisterkamp & Bushnell, Rapid City, for appellant Alexander Drilling.
MILLER, Chief Justice (on reassignment).
[¶ 1.] In this appeal we affirm the circuit court‘s reversal of the county‘s granting of a conditional use permit to a drilling company.
FACTS
[¶ 2.] Alexander Drilling and Garry Schrank are neighbors in an area of Hill City zoned “Highway Service” under the Pennington County Zoning Ordinance. Schrank operates a campground. Alexander, who owns a fourteen-acre parcel of land, operates a drilling service and makes some retail sales of water pumps and pressure tanks. In 1996, Pennington County determined Alexander‘s use of the property was in technical violation of the Highway Service District zoning guidelines. Alexander then applied for a conditional use permit. The Pennington County Planning Commission staff recommended approval of the permit with several
[¶ 3.] On September 4, Alexander moved to intervene and to dismiss the appeal. The circuit judge denied the motion to dismiss, but granted Alexander the right to continue in the lawsuit to protect his interests. On August 25, 1997, the trial court reversed County‘s decision.
[¶ 4.] Alexander and County appeal, raising the following issues:
[¶ 5.] 1. Whether the appeal from the County decision should have been dismissed for failure to make timely service on Alexander.
[¶ 6.] 2. Whether County acted lawfully in granting a conditional use permit to Alexander.
DECISION
[¶ 7.] 1. The trial court did not err in refusing to dismiss the appeal for failure to personally serve Alexander.
[¶ 8.] Alexander and County argue that the trial court lacked jurisdiction in this case because Alexander was not personally served with the notice of appeal. We disagree.
[¶ 9.] This appeal was brought under
[¶ 10.] Because the statute was strictly followed, there was no lack of subject matter jurisdiction. The Supreme Court of Connecticut, when faced with a situation similar to the present one, held:
[I]t is clear that the failure initially to join one whose presence is essential for a complete adjudication of an administrative appeal is a defect not involving subject matter jurisdiction[.] Only when the statute authorizing the appeal requires a designated person to be made a party does the failure to do so constitute noncompliance with its terms and thus involve subject matter jurisdiction.
Fong v. Planning and Zoning Bd. of Appeals, 212 Conn. 628, 563 A.2d 293, 298 (1989) (emphasis added)2 (citing Simko v. Zoning Bd. of Appeals, 205 Conn. 413, 533 A.2d 879 (1987)); see also C.E. Alexander & Sons, Inc. v. DEC Int‘l, Inc., 112 N.M. 89, 811 P.2d 899 (1991) (holding that the test of indispensability of a party is not a jurisdictional one). We agree with the rationale of the Connecticut court, and hold that there could be no lack of subject matter jurisdiction because the notice statute was strictly followed in the present case.
[¶ 11.] Alexander and County principally rely on our decision in Lyman County v. Bd. of Comm‘rs, 14 S.D. 341, 85 N.W. 597 (1901). In that case we were looking at a predecessor statute to
[T]he claimant was not notified of the appeal to the circuit court, and ... he was not notified of the appeal from that court to this, it [therefore] follows that neither the circuit court nor this court ever acquired jurisdiction of the claimant‘s person, or had authority to hear and determine his right to the compensation alleged to be due him from Lyman county.
Id. (emphasis added).
[¶ 12.] Lyman County does not apply. Here, there is no claimed defect in personal jurisdiction. Alexander sought and was permitted to intervene under
[¶ 13.] Alexander and County also raise due process concerns. Their arguments totally lack merit. “[D]ue process requires only reasonable notice and an opportunity to be heard at a ‘meaningful time and in a meaningful manner.‘” S.B. Partnership v. Gogue, 1997 SD 41, ¶ 16, 562 N.W.2d 754, 758-59 (quoting Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18, 32 (1976) (other citation omitted)). Alexander was provided adequate due process as he was allowed to intervene on appeal to the circuit court and present his argument. The purpose of the notice requirement was met and all the parties were given the opportunity to be heard. Alexander has not shown how he was prejudiced by not being served with notice.
[¶ 14.] 2. County did not act lawfully in granting a conditional use permit to Alexander.
[¶ 15.] Alexander and County first take issue with the standard of review applied by the circuit court.
[¶ 16.] This was the standard applied by the circuit court. Alexander and County claim that it was incorrect, relying on what we have held a “trial de novo” means in the context of appeals from school boards. See Moran v. Rapid City Area School Dist., 281 N.W.2d 595 (S.D.1979); Dunker v. Brown County Bd. of Educ., 80 S.D. 193, 121 N.W.2d 10 (1963). In those cases we held that a “trial de novo” must be considered differently than an actual de novo review because of the doctrine of separation of powers. We held:
A trial de novo ... is not a trial de novo in the true sense of the phrase. It is a limited type of hearing at which the circuit court takes evidence and hears testimony solely for the purpose of determining the legality, and not the propriety, of the school board‘s decision.... It differs from a true trial de novo in that the court may not substitute its judgment for that of the school board, and the court need not justify the school board‘s decision by a preponderance of the evidence received.
Moran, 281 N.W.2d at 598 (citations omitted).
[¶ 17.] The trial court did not err. Alexander and County strain to twist what was really decided in this case: Did County act unlawfully? That is a question of law. The circuit court took evidence and determined that County did act unlawfully. It was not determining the propriety of County‘s decision, but rather its legality. See id.
[¶ 18.] Alexander and County also cite to our case of Olson v. City of Deadwood, 480 N.W.2d 770, 774-75 (S.D.1992), to show a similar standard of review as between school boards and municipal boards of adjustment. The Olson case adopted a standard that was dicta in Graves v. Johnson, 75 S.D. 261, 63 N.W.2d 341 (1954). In Graves we held:
As to a decision by a board of adjustment made pursuant to the provisions of [
SDCL 11-4-25 through29 ], the question on a review is whether an order of the board is supported by substantial evidence and is reasonable and not arbitrary. No such issue as to the discretion of the board arises under the facts here presented. The board had no power to permit a prohibited use, that being a legislative power vested only in the city commission.
[¶ 19.] Likewise, what was at issue in the present case was the legality of County‘s decision. It was not a question of discretion, but a question of law.
[¶ 20.] “Zoning regulations are generally interpreted according to the rules of statutory construction and they may also be subject to rules of construction included in the regulations themselves.” Cordell v. Codington County, 526 N.W.2d 115, 117 (S.D. 1994) (citing 83 Am.Jur.2d Zoning and Planning § 698 (1992)). In interpreting statutes, we are to give words and phrases their plain meaning and effect. Petition of Famous Brands, Inc., 347 N.W.2d 882, 885 (S.D.1984). County‘s zoning ordinance also provides that the words used in it are “to be understood in their ordinary sense[.]” The meaning of terms in a zoning regulation is a matter of law for the court. Cordell, 526 N.W.2d at 117.
[¶ 21.] Alexander‘s drilling service is located in an area zoned “Highway Service” (HS), as defined in section 210 of the Pennington County Zoning Ordinance. Section 204F of the ordinance discusses conditional uses as follows:
Within each district there are certain uses which are permitted as a conditional use in accordance with the provisions contained in Section 510—Conditional Use Permits. The listed conditional uses under each district are illustrative of those which the Commission and the Board may approve temporarily, permanently, or for a specific time interval. Other uses may be allowed which are not listed provided they are not contrary to the intent of the district in which they are to be located. (Emphasis added.)
[¶ 22.] The intent of an HS district is “to establish areas for highway-oriented business and to provide development standards that will not impair or obstruct the traffic carrying capabilities of abutting roads and highways.” Permitted uses include such things as hotels, restaurants, retail businesses, and commercial recreation and amusement structures. There are also listed examples of conditional uses which include: “(1) Golf driving ranges; (2) drive-in theaters; (3) racetracks; and (4) other highway oriented businesses which are not listed but which the Commission may determine meet the intent of the highway service district. This shall not be construed to include general commercial activities which more appropriately fit the general commercial district.”
[¶ 23.] The circuit court did not err in determining that Alexander‘s business was not a permissible conditional use for an HS district. It appears that Alexander‘s business is one that meets the criteria for a Light Industrial District (LI). An LI district includes things such as manufacturing, wholesaling, distributing, warehousing, bulk storage, building materials sales yard, contractor‘s equipment storage yard, and a freight or truck yard, etc.
[¶ 24.] Alexander operates an off-site well drilling business in which heavy equipment is used. While it does involve some retail sales, such activity constitutes ten percent or less of his business. His property‘s main use is as a terminal for heavy equipment, a bulk storage yard for pipe, a warehouse for equipment and materials, and a truck and equipment yard. On two separate occasions Alexander sought to have the district rezoned to an LI district. County refused to rezone the district and even indicated that Alexander‘s use of the property is such as would normally be permitted in an LI district. By looking at the listed permitted uses and conditional uses, the intent of an HS district can be seen. Not only does Alexander‘s operation not meet the intent of an HS district, it appears to be repugnant thereto.
[¶ 25.] The residents of Pennington County have a right to rely on the protections provided them by the zoning ordinance. See
[¶ 26.] Affirmed.
[¶ 27.] KONENAMP and GILBERTSON, JJ., concur.
[¶ 28.] AMUNDSON, J., and MARTIN, Circuit Judge, dissent.
[¶ 29.] MARTIN, Circuit Judge, sitting for SABERS, J., disqualified.
MARTIN, Circuit Judge (dissenting).
[¶ 30.] I dissent from the majority‘s decision that the trial court did not err in refusing to dismiss the appeal for failure to personally serve Alexander.
[¶ 31.] On August 1, 1996, the conditional use permit granted to Alexander was published. Schrank, on August 2, 1996, appealed this decision to circuit court. Service of the appeal was made on one of the members of the board of county commissions on August 2, 1996. No notice of appeal was ever served on Alexander. I repeat, no notice of appeal was ever served on Alexander.
[¶ 32.] On September 4, 1996, which was past the twenty-day limit for service, Alexander made two motions, to wit: motion to intervene to move to dismiss and intervenor‘s motion to dismiss. The majority states that Alexander moved to intervene and to dismiss the appeal. (Copies of these motions are attached to this opinion for incorporation and review.) It is crystal clear from the attached motions and the record that Alexander moved to intervene in the first instance to challenge the jurisdiction of the court and dismiss the action because of the failure of Schrank to make timely service on Alexander of the notice of appeal. When the circuit court denied the motion to dismiss, Alexander then asked to continue in the lawsuit to protect its interests, which the trial court allowed.
DECISION
[¶ 33.] The trial court should have dismissed this lawsuit pursuant to Alexander‘s motion to dismiss because Alexander was not timely served with a notice of appeal.
[¶ 34.] According to
[¶ 35.] It is conceded that Shrank fulfilled the statutory requirement. However, he did not timely serve Alexander with notice of the appeal and this requirement is not confined to statute. The South Dakota Constitution, Article VI, § 2, provides that “[n]o person shall be deprived of life, liberty or property without due process of law.” “It is rudimentary that a statute must serve and cannot abrogate the Constitution.” Kane v. Kundert, 371 N.W.2d 172, 175 (S.D.1985).
[¶ 36.] Even though
How [claimant‘s] claim against the county can be lawfully adjudicated in a proceeding to which he is not a party, and of which he has no notice, is beyond our comprehension. It is absurd to say that his claim could be reduced by the circuit court without his having any opportunity to be heard. The legislature could not have intended any such ridiculous result, and if it did the procedure would be clearly unconstitutional, as depriving the claimant
of his property without due process of law. Const. Art. 6, §§ 2, 20.”
14 S.D. at 345-46, 85 N.W. at 598. (Emphasis added.)
[¶ 37.] If the reversal or modification of the judgment or order appealed from cannot be accomplished without adversely affecting the interest of the party not served with notice, failure to make such service must be held fatal to the entire appeal. City of Sioux Falls v. Naused, 88 S.D. 14, 214 N.W.2d 74 (1974); Morrell Livestock Co. v. Stockman‘s Commission Co., 77 S.D. 114, 86 N.W.2d 533 (1958); Millard v. Baker, 76 S.D. 529, 81 N.W.2d 892 (1957); Union Bond & Mortgage Co. v. Brown, 64 S.D. 596, 269 N.W. 472 (1936).
[¶ 38.] Alexander was entitled to timely notice of the appeal pursuant to our constitution requiring due process, and pursuant to well-established case law.
A. There is no subject matter jurisdiction.
[¶ 39.] Alexander was not only entitled to be served with proper notice but also that the service be timely made.
1. Proper Notice.
[¶ 40.] The South Dakota Constitution requiring due process entitled Alexander to be served with notice of the appeal. Without service there is no jurisdiction. In Lyman, 14 S.D. at 346, 85 N.W. at 598, it was stated: “We therefore construe the statute to mean that written notice required to be served must in such cases be served upon the claimant. Such notice not having been served upon the claimant, the circuit court was without jurisdiction, this court is without jurisdiction, and the appeal is dismissed.” (Emphasis added.)
[¶ 41.] This lack of jurisdiction included subject matter jurisdiction. Subject matter jurisdiction is defined as “.. the power to hear and determine cases of the general class to which the proceedings in question belong. 21 CJS Courts § 23.” Mellette County v. Arnold, 76 S.D. 210, 215-16, 75 N.W.2d 641, 644 (1956). The majority states that Lyman, supra, dealt with a lack of personal jurisdiction only. I disagree. Lyman dealt with a lack of personal jurisdiction and subject matter jurisdiction, to wit:
[T]he claimant was not notified of the appeal to the circuit court, and ... he was not notified of the appeal from that court to this, it [therefore] follows that neither the circuit court nor this court ever acquired jurisdiction of the claimant‘s person, or had authority to hear and determine his right to the compensation alleged to be due him from Lyman county.
14 S.D. at 346, 85 N.W. at 598. (Emphasis added.) The “[authority] to hear and determine” is subject-matter jurisdiction. Because there was no proper service made the circuit court could not exercise its authority to hear and determine the matter before it.
[¶ 42.] Let me clarify. “In order to act in a case, a court must be vested with both jurisdiction over the subject matter and jurisdiction over the parties.” 20 Am.Jur.2d Courts § 70 at 383. Subject-matter jurisdiction cannot be exercised until there is proper and timely service. 21 CJS Courts § 10, fn. 51; Lyman, supra. The circuit court in this case certainly had the power and/or authority to hear and determine this type of case, but until there was proper and timely service upon Alexander (personal jurisdiction), it cannot exercise that power.
[¶ 43.] When the circuit court is without jurisdiction of the subject matter in litigation, the Supreme Court does not acquire jurisdiction by appeal to it from a judgment of the circuit court. In Re Mackrill‘s Addition, 85 S.D. 196, 201, 179 N.W.2d 268, 270 (S.D. 1970).
2. Timely Service.
[¶ 44.]
[¶ 45.] In other words, a valid notice of appeal must have been taken within twenty days and Alexander must have been served. When the twenty days passed the court no longer had any subject matter jurisdiction. Alexander‘s appearance cannot give jurisdiction of an untimely appeal. Subject-matter jurisdiction cannot be waived. Application of Koch Exploration Co., 387 N.W.2d 530 (S.D.1986).
[¶ 46.] The trial court did not have nor does this Court have subject-matter jurisdiction.
B. There is no personal jurisdiction.
[¶ 47.] The majority states “here, there is no claimed defect in personal jurisdiction.” This is not accurate for the following reasons:
- Early in the majority opinion they state just the opposite, to wit: “Alexander and County argue that the trial court lacked jurisdiction in this case because Alexander was not personally served with the notice of appeal.”
- Alexander‘s court papers read as follows: “‘Motion to Intervene the defense stated in the accompanying ‘Intervenor‘s Motion to Dismiss’ may be presented. Copies of these court documents are attached hereto and incorporated herein by this reference. Alexander clearly intervened in the first instance to move for dismissal because of a lack of timely service of the notice of appeal asserting the court was without personal jurisdiction. Further, that the time for appeal had expired.”
- Contained within the Intervenor‘s Motion to Dismiss, and in support thereof is cited the Lyman case with quotes therefrom and the argument that the court has no jurisdiction, including personal jurisdiction, over Alexander.
The majority states that the Lyman case only dealt with a lack of personal jurisdiction and yet notwithstanding the fact that Alexander cites this case as support for its motion to dismiss, the majority states that in this case Alexander makes no claim of a lack of personal jurisdiction. Further, the record is replete with argument by Alexander of the necessity of its being personally and timely served and citing the Lyman case as supporting authority.
[¶ 48.] Alexander had the right to intervene, pursuant to
[¶ 49.] The case of Ruden v. Dalkin & Dalkin, 62 S.D. 66, 251 N.W. 807 (1934) cited by the majority in support of personal jurisdiction over Alexander, is totally inapplicable. In that case, the defendant intervened because of an interest in the litigation and did so without reservation of any question of jurisdiction. In other words the intervenor did not raise any jurisdictional (personal or subject matter) issue with the court. The case is not authority for the factual situation at present.
[¶ 50.] The majority also say that Alexander‘s due process concerns totally lack merit, apparently because it had the opportunity to present its case after its motion to dismiss was denied. However, in addition to the opportunity to be heard, a person is entitled to reasonable notice, which includes proper
[¶ 51.] The procedure set out in
[¶ 52.] The majority has converted an appearance by Alexander to challenge jurisdiction into a waiver of personal jurisdiction and a waiver of due process. I believe this is not supported by the facts in this case and sets a very dangerous precedent.
[¶ 53.] I am authorized to state that Justice AMUNDSON joins in this dissent.
ATTACHMENT
STATE OF SOUTH DAKOTA
SS.
COUNTY OF PENNINGTON
Appellant, GARRY SCHRANK, vs. PENNINGTON COUNTY BOARD OF COMMISSIONERS, Respondent, and ALEXANDER DRILLING, Hill City, South Dakota, Intervenor/Appellee.
IN CIRCUIT COURT SEVENTH JUDICIAL CIRCUIT
MOTION TO INTERVENE TO MOVE TO DISMISS
Comes now Intervenor/Appellee and moves this Court, pursuant to
Dated this 4th day of September, 1996.
STATE OF SOUTH DAKOTA
SS.
COUNTY OF PENNINGTON
GARRY SCHRANK, Appellant, vs. PENNINGTON COUNTY BOARD OF COMMISSIONERS, Respondent, and ALEXANDER DRILLING, Hill City, South Dakota, Intervenor/Appellee.
IN CIRCUIT COURT SEVENTH JUDICIAL CIRCUIT
INTERVENOR‘S MOTION TO DISMISS
Intervenor/Appellee [hereinafter Alexander] moves this Court to dismiss this appeal for failure to timely join an indispensable party. This action is an appeal, brought by the Appellant [hereinafter Schrank] from an action of the Board of the Pennington County Commissioners, taken July 16, 1996, approv-
It has been settled law in South Dakota, ever since Lyman County v. Board of Com‘rs., 14 S.D. 341, 85 N.W. 597, 598 (1901), that even though
the county can be lawfully adjudicated in a proceeding to which he is not a party, and of which he has no notice, is beyond our comprehension. It is absurd to say that his claim could be [decided] by the circuit court ... without his having any opportunity to be heard. The legislature could not have intended any such ridiculous result, and if it did the procedure would be clearly unconstitutional, as depriving the claimant of his property without due process of law.... As it appears from the record before us that the claimant was not notified of the appeal to the circuit court, and that he was not notified of the appeal, from that court to this, it follows that neither the circuit court nor this court ever acquired jurisdiction of the claimant‘s person, or had authority to hear and determine his [rights].
(Emphasis supplied).
While Lyman County involved a claim for payment for services rendered, the rule is the same when the appeal involves a successful application for a zoning change. See, e.g., Spanish Wells Prop. Owners v. Bd. of Adj., 295 S.C. 67, 367 S.E.2d 160, 161 (1988); Schroeder v. Burleigh Cty. Bd. of Com‘rs., 252 N.W.2d 893, 897 (N.D.1977) (“a successful applicant for a zoning change should be joined as a party to an appeal from that decision by an aggrieved person, and any judgment rendered on appeal in his absence is invalid.“) And, because the time for appeal has now expired, Alexander cannot be properly joined, and this action must be dismissed. Veradale Valley, Etc. v. Board of Cty. Com‘rs., 22 Wash.App. 229, 588 P.2d 750 (1978); Westlund v. Carter, 193 Colo. 129, 565 P.2d 920 (1977); Hidden Lake Development Co. v. District Court, 183 Colo. 168, 515 P.2d 632 (1973).
Dated this 4th day of September, 1996.