Shawn TIBBS, Virgil Stembaugh, Gene Gullickson and Janet Gullickson, Petitioners and Appellants, v. MOODY COUNTY BOARD OF COMMISSIONERS, sitting as The Board of Adjustment, and Mustang Pass, LLC, Respondents and Appellees.
No. 26897
Supreme Court of South Dakota
Decided July 9, 2014
2014 S.D. 44; 853 N.W.2d 208
Argued May 28, 2014.
Jack H. Hieb, Zachary W. Peterson of Richardson, Wyly, Wise, Sauck & Hieb, LLP, Aberdeen, South Dakota, Attorneys for appellee Moody County Board of Commissioners Sitting as Board of Adjustment.
James S. Simko of Cadwell, Sanford, Deibert & Garry, LLP, Sioux Falls, South Dakota, Attorneys for appellee Mustang Pass, LLC.
[¶ 1.] The Moody County Board of Adjustment granted a conditional use permit to allow a concentrated animal feeding operation in Moody County. Shawn Tibbs, Virgil Stembaugh, and Gene and Janet Gullickson (the Citizens) petitioned the circuit court for a writ of certiorari challenging the board of adjustment‘s decision to grant the conditional use permit. The Citizens also argued that the statutory scheme governing appeals to circuit courts from county-level decisions on conditional use permits violated their equal protection
Background
[¶ 2.] On January 16, 2013, Mustang Pass, LLC applied for a conditional use permit (CUP) to construct a concentrated animal feeding operation in Moody County. The zoning officer issued a written recommendation to the Moody County Board of Adjustment that the CUP be approved with the addition of six conditions. On January 23, 2013, the Moody County Board of Adjustment published a notice in the local newspaper announcing that a public hearing on Mustang‘s application would be held on February 5, 2013. At the hearing, the board received evidence, including testimony from Mustang‘s principals, the engineers who prepared the CUP, and members of the public. At a later meeting in March, the board approved Mustang‘s CUP. The board issued written findings and conditional use permit requirements, identified the board‘s jurisdiction to consider Mustang‘s application, outlined the procedural history on Mustang‘s CUP, certified Mustang‘s compliance with the rules governing conditional use requests, and imposed certain “special conditions and safeguards.”
[¶ 3.] The Citizens petitioned the circuit court for a writ of certiorari to invalidate Mustang‘s CUP. They challenged the board‘s jurisdiction to consider Mustang‘s application, asserting that Moody County failed, in 2003, to properly enact its zoning ordinances. These ordinances created the Moody County Board of Adjustment and gave it power to hear and consider CUPs. In the Citizens’ view, because the zoning ordinances were not properly enacted, all action taken by the Moody County Board of Adjustment since 2003 was void ab initio, including the decision by the board of adjustment to approve Mustang‘s CUP. They also asserted that Moody County did not have legislative authority to delegate to the board of adjustment original jurisdiction to consider a CUP application, and therefore, the board‘s approval of Mustang‘s CUP was void. Finally, the Citizens argued that
[¶ 4.] After a hearing in September 2013, the circuit court issued a memorandum decision that was later incorporated into its findings of fact and conclusions of law. The court found “no procedural defects” in Moody County‘s 2003 adoption of its zoning ordinances and accordingly ruled that the board of adjustment was validly created. The court further concluded that Moody County did not improperly delegate its authority to the board of adjustment, even though
[¶ 5.] On the Citizens’ equal protection claim, the court detailed the legislative history leading to the inconsistent appellate processes from county CUP decisions. See Armstrong v. Turner Cnty. Bd. of Adjustment, 2009 S.D. 81, ¶¶ 10-11, 772 N.W.2d 643, 647-48. The court noted that in 2003, the Legislature amended
[¶ 6.] The circuit court then applied the traditional two-part test for claims that a statute violates equal protection: (1) does the statute create an arbitrary classification among citizens, and (2) “if the classification does not involve a fundamental right or suspect group,” is there a rational relationship “between a legitimate legislative purpose and the classification created“? See In re Davis, 2004 S.D. 70, ¶ 5, 681 N.W.2d 452, 454. On the first prong, the court concluded that, “[w]hen applied, the statute [
[¶ 7.] Although the court found no arbitrary classification, it addressed the second prong—whether there is a rational relationship between a legitimate legislative purpose and the classification. The court determined that a legitimate legislative purpose existed in the allowance of flexibility to each county on zoning issues and that differing standards of review are rationally related to that purpose. It concluded that the Citizens failed to meet their burden that there is no rational relationship between the legitimate legislative purpose and the classification created and denied the Citizens’ petition for a writ of certiorari.
[¶ 8.] On appeal, the Citizens assert that the statutory scheme applicable to the appeal procedure from a board of adjustment decision is unconstitutional in violation of the Equal Protection Clause and that the Moody County Board acted in excess of its jurisdiction, failed to pursue its authority in a regular manner, and failed to do an act required by law.
Analysis and Decision
1. Equal Protection
[¶ 9.] The Citizens argue that the writ of certiorari standard of review applied to a board of adjustment‘s CUP decision violates their right to equal protection of the law. See
[¶ 10.] A statute‘s constitutionality and proper interpretation are questions we review de novo. In re Z.B., 2008 S.D. 108, ¶ 5, 757 N.W.2d 595, 598 (citing Buchholz v. Storsve, 2007 S.D. 101, ¶ 7, 740 N.W.2d 107, 110). “Any legislative act is accorded a presumption in favor of constitutionality and that presumption is not overcome until the unconstitutionality of the act is clearly and unmistakably shown and there is no reasonable doubt that it violates fundamental constitutional principles.” Accounts Mgmt., Inc. v. Williams, 484 N.W.2d 297, 299 (S.D.1992) (citations omitted). The constitutional question here is whether the Equal Protection Clause prohibits the differing standards of review applied to CUP decisions at the circuit court level. See
[¶ 11.] In deciding whether a statutory scheme comports with the Equal Protection Clause, we apply a two-part test. “First, we determine whether the statute creates arbitrary classifications among citizens.” Davis, 2004 S.D. 70, ¶ 5, 681 N.W.2d at 454 (citing City of Aberdeen v. Meidinger, 89 S.D. 412, 233 N.W.2d 331, 333 (1975)). “Second, if the classification does not involve a fundamental right or suspect group, we determine whether a rational relationship exists between a legitimate legislative purpose and the classifications created.” Id. (citing Accounts Mgmt., Inc., 484 N.W.2d at 300).
[¶ 12.] On the first prong, we look to see whether “the statute applies equally to all people.” Accounts Mgmt., Inc., 484 N.W.2d at 300. While
[¶ 13.] The next inquiry is whether the classification is arbitrary. Equal protection of the law does not deny a state the right to make classifications in law, so long as those classifications are rooted in reason. State v. Krahwinkel, 2002 S.D. 160, ¶ 21, 656 N.W.2d 451, 460-61. Indeed, classification is the essence of legislation and the Legislature is not prohibited “from making classifications based upon difference in ‘terms’ surrounding individuals.” Accounts Mgmt., Inc., 484 N.W.2d at 300; see also Clements v. Fashing, 457 U.S. 957, 964, 102 S.Ct. 2836, 2845, 73 L.Ed.2d 508 (1982). “A statute will not be declared invalid ‘unless it is “patently arbitrary” and bears no rational relationship to a legitimate governmental interest.‘” Accounts Mgmt., Inc., 484 N.W.2d at 300 (citations omitted); see also Davis, 2004 S.D. 70, ¶ 4, 681 N.W.2d at 454. As the United State Supreme Court explained, “When social or economic legislation is at issue, the Equal Protection Clause allows the States wide latitude, and the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985) (internal citations omitted).
[¶ 14.] Here, although the classes of citizens appear to be arbitrarily classified—differing standards of review of CUP decisions based on whether the county has a board of adjustment or not—our review of the constitutionality of the statutory scheme is not isolated to a simple comparison of standards of review at the circuit court level. See Sedlacek v. S.D. Teener Baseball Program, 437 N.W.2d 866, 869 (S.D.1989). On the contrary, we must examine the CUP processes as a whole to determine if the two classes of citizens are “postured in the same stance.” See Accounts Mgmt., Inc., 484 N.W.2d at 300. This is because “[e]qual protection of law requires that the rights of every person be governed by the same rule of law, under similar circumstances.” Krahwinkel, 2002 S.D. 160, ¶ 21, 656 N.W.2d at 460 (citation omitted).
[¶ 15.] In probing the circumstances surrounding a CUP decision by a board of adjustment compared to a CUP decision by a county commission, we note one procedural difference. In a county that designated a board of adjustment as the approving authority,
[¶ 16.] Nonetheless, the Citizens contend that Aberdeen, 89 S.D. 412, 233 N.W.2d 331 and Metropolitan Associates v. City of Milwaukee, 332 Wis.2d 85, 796 N.W.2d 717 (2011) support proof of arbitrary classifications. In Meidinger, the challenged statutory scheme created a classification affecting similarly situated citizens: a city with a municipal court could impose a greater penalty for the same municipal ordinance violation as compared to a city without a municipal court. The classification meant that a person convicted of the same infraction could be subjected to a greater penalty depending on whether the city had a municipal court. 89 S.D. at 415, 233 N.W.2d at 333. Here, however, the classification created by the statutory scheme does not involve the same circumstances. Rather, the classification can be related to a “difference in ‘terms’ surrounding individuals,” see Accounts Mgmt., Inc., 484 N.W.2d at 300, based upon the fact an applicant seeking a CUP must obtain a super-majority vote of a board of adjustment versus a simple-majority vote of a county commission.
[¶ 17.] Likewise, the statutory scheme in Metropolitan Associates created a classification affecting similarly situated citizens: appellant taxpayers living in a municipality opting out of de novo review and appellant taxpayers living in a municipality
[¶ 18.] “In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect.” Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491 (1970); see also Heller v. Doe, 509 U.S. 312, 321, 113 S.Ct. 2637, 2643, 125 L.Ed.2d 257 (1993). The Legislature need not “‘actually articulate at any time the purpose or rationale supporting its classification.‘” Z.B., 2008 S.D. 108, ¶ 9, 757 N.W.2d at 600 (quoting Heller, 509 U.S. at 320, 113 S.Ct. at 2642). Rather, “[i]n an equal protection challenge, ‘[t]he burden is on the one attacking the legislative arrangement to negate every conceivable basis which might support it.‘” Id. ¶ 5 (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364, 93 S.Ct. 1001, 1006, 35 L.Ed.2d 351 (1973) (citations omitted)). Here, the Citizens have failed to negate the conceivable set of facts providing the rational basis for the classification—the different procedural means by which a CUP decision reaches the circuit court. Although this classification might not be “made with mathematical nicety” and “in practice [may result] in some inequality,” see Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369 (1911), there is a plausible reason for the differing standards of review and thus “our inquiry is at an end.” See United States R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179, 101 S.Ct. 453, 461, 66 L.Ed.2d 368 (1980); see also In re Certain Territorial Elec. Boundaries (Mitchell Area) F-3105, 281 N.W.2d 65, 71 (S.D. 1979).
[¶ 19.] We nonetheless address the second prong: whether a rational relationship exists between the legitimate legislative purpose and the classifications. The Citizens insist that a fundamental right is at stake because the board‘s decision implicated a property right and a right to access the courts. On the contrary, the issue before us is the statutory scheme governing CUP decisions, and therefore, the Citizens’ constitutional question does not involve a fundamental right. See Lindsey v. Normet, 405 U.S. 56, 77, 92 S.Ct. 862, 876, 31 L.Ed.2d 36 (1972) (no constitutional right to appellate review). Because a fundamental right is not involved, we need only determine “whether a rational relationship exists between a legitimate legislative purpose and the classifications created.” See Davis, 2004 S.D. 70, ¶ 5, 681 N.W.2d at 454. It is a legitimate legislative purpose to create different procedural means by which certain county authorities manage proceedings before them. This is not a case like Metropolitan Associates where Wisconsin enacted a statute giving counties the authority to decide what standard of review would be applied to landowner challenges of CUP decisions. 796 N.W.2d at 724. Rather, our case involves separate and distinct county procedures before different county government bodies, where dissimilar circumstances result in different standards of
2. Validity of Zoning Ordinance Creating the Board of Adjustment
[¶ 20.] The Citizens contend that Moody County did not properly establish its board of adjustment because the county failed to validly enact its zoning ordinances in 2003, when it did not hold two separate hearings as required by
[¶ 21.] Moody County responds that it complied with
[¶ 22.] We will sustain Moody County‘s actions “unless it did some act forbidden by law or neglected to do some act required by law.” See Armstrong, 2009 S.D. 81, ¶ 12, 772 N.W.2d at 648 (citations omitted).
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.
Then,
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.
[¶ 23.] Here, it is undisputed that the planning commission held a public hearing on the proposed ordinances, before which it gave ten-days’ notice and after which it submitted its recommendation to the board of commissioners. It is further undisputed that after receiving the recommendation from the planning commission, the board of commissioners held a hearing on the respective zoning ordinances. Although the board of commissioners gave notice of its hearing before receiving the planning commission‘s recommendation, nothing in
[¶ 24.] Nonetheless, the Citizens argue that even if the zoning ordinances were validly enacted in 2003, the zoning ordinances giving the board of adjustment the power to hear and consider CUPs were adopted prematurely, because Moody County did not have specific legislative authority in February 2003 to give a board of adjustment power to hear and consider CUP applications. They point out that it was not until July 1, 2003, after the Legis-
[¶ 25.] A county is a creature of statute and has “only such powers as are expressly conferred upon it by statute and such as may be reasonably implied from those expressly granted.” State v. Quinn, 2001 S.D. 25, ¶ 10, 623 N.W.2d 36, 38 (quoting State v. Hansen, 75 S.D. 476, 68 N.W.2d 480, 481 (1955)).
[¶ 26.] From our review of Moody County‘s 2003 ordinances and the statutory scheme governing boards of adjustment, we conclude that Moody County‘s ordinance was not void ab initio. The Citizens have not established that the ordinance prohibited an act forbidden by state law, created a conflict between state law and the ordinance, or encroached upon a field occupied by state law to the exclusion of all local regulation. See id. In enacting the ordinance, Moody County deemed it necessary to create a board of adjustment to hear and consider CUPs. See
3. Original Jurisdiction
[¶ 27.] The Citizens next contend that although
A county zoning ordinance adopted pursuant to this chapter that authorizes a conditional use of real property shall specify the approving authority, each category of conditional use requiring such approval, the zoning districts in which a conditional use is available, and the criteria for evaluating each conditional use. The approving authority shall consider the stated criteria, the objectives of the comprehensive plan, and the purpose of the zoning ordinance and its relevant zoning districts when making a decision to approve or disapprove a conditional use request.
This statute directed Moody County to specify the approving authority for allowing conditional uses of real property. Here, Moody County adopted an ordinance that created a board of adjustment and empowered the board of adjustment to hear and consider CUPs as the approving authority. The Citizens’ claim is without merit and neither Moody County nor the board acted in excess of its authority when the board exercised original jurisdiction over Mustang‘s CUP application.
4. Regularity of the Board‘s Procedures
[¶ 28.] “Our consideration of a matter presented on certiorari is limited to whether the board of adjustment had jurisdiction over the matter and whether it pursued in a regular manner the authority conferred upon it. A board‘s actions will be sustained unless it did some act forbid-den by law or neglected to do some act required by law.” Armstrong, 2009 S.D. 81, ¶ 12, 772 N.W.2d at 648 (citations omitted). The Citizens seek reversal of the board of adjustment‘s decision to grant Mustang‘s CUP because they allege that the board failed to adopt rules as required by
[¶ 29.] Affirmed.
[¶ 30.] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and WILBUR, Justices, concur.