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Cable v. Union County Board of County Commissioners

July 15, 2009

ED CABLE, PETITIONER AND APPELLANT,
v.
UNION COUNTY BOARD OF COUNTY COMMISSIONERS, MARVIN SCHEMPP, DOYLE KARPEN, DALE NEELY, MILTON USTAD AND ROSS JORDAN, RESPONDENTS AND APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT UNION COUNTY, SOUTH DAKOTA HONORABLE STEVEN R. JENSEN Judge.

The opinion of the court was delivered by: Gilbertson, Chief Justice

CONSIDERED ON BRIEFS ON APRIL 29, 2009

[¶1.] Ed Cable (Cable) and Save Union County, LLC, (Save Union County) filed an appeal under SDCL 7-8-27 in circuit court seeking an order reversing the issuance by the Union County Board of Commissioners (County) of a rezoning permit to Hyperion, LLC, (Hyperion) for the construction of an oil refinery in Union County, South Dakota. The circuit court found Cable and Save Union County were without standing to file an appeal under SDCL 7-8-27, and that their lack of standing rendered it without subject matter jurisdiction to consider the appeal. The circuit court, notwithstanding its legal conclusion that it lacked subject matter jurisdiction over the appeal, subsequently denied Cable's motion for summary judgment and Union County's motion to dismiss based on the result of a referendum vote that approved the rezoning. We affirm in part and reverse and vacate in part.

FACTS

[¶2.] On March 11, 2008, County rezoned property in rural Union County and granted a rezoning permit to Hyperion. The rezoning made it possible for Hyperion to pursue construction of an oil refinery and housing complex on the property. Construction on the project remained contingent on Hyperion securing all necessary federal and state permits and licenses.

[¶3.] On March 20, 2008, Cable and Save Union County*fn1 filed an appeal in Union County circuit court pursuant to SDCL 7-8-27. SDCL 7-8-27 provides in relevant part:

From all decisions of the board of county commissioners upon matters properly before it, there may be an appeal to the circuit court by any person aggrieved upon filing a bond in the amount of two hundred fifty dollars with one or more sureties to be approved by the county auditor conditioned that the appellant shall prosecute the appeal without delay and pay all costs that he may be adjudged to pay in the circuit court. (Emphasis added). Cable and Save Union County requested relief in the form of an order from the circuit court overturning the county's approval of Hyperion's application for the rezoning permit.

[¶4.] On April 11, 2008, County moved to dismiss Cable and Save Union County's petition for lack of subject matter jurisdiction. County alleged that Cable was not a "person aggrieved" within the meaning of SDCL 7-8-27, as he alleged no personal or individual grievance distinct from that of a general taxpayer and, therefore, lacked standing to bring the claim under SDCL 7-8-27. It also provided evidence that Cable did not own any real property in Union County, as the property on which he resided was titled in the name of Barbara Anderson. County further alleged that Cable's petition should have been filed under the provisions of SDCL 7- 8-28 as a general taxpayer appeal.*fn2 County also sought to have Save Union County dismissed for lack of subject matter jurisdiction due to lack of standing. Save Union County lacked an ownership interest in any real property within Union County, which County argued rendered it a non-taxpaying entity and, therefore, not a "person aggrieved" within the meaning of SDCL 7-8-27.

[¶5.] On April 16, 2008, Cable and Save Union County resisted County's motion to dismiss for lack of subject matter jurisdiction. In support of the resistance, Cable alleged he had pleaded enough facts to show he had standing and establish the circuit court's subject matter jurisdiction. Cable alleged his personal injuries included an injury to his right to live without pollution affecting his living quarters and usual quiet and peaceful rural lifestyle in Union County. Although not disputing that the property on which he resided was titled in the name of Barbara Anderson, Cable claimed an equitable interest in the home in which he resided that was based on his labor in building the home. He further alleged he would be able to show a loss in value on his home. In addition, Cable alleged he would be injured by the increased traffic along county roads that would further damage his health and property value. On April 29, 2008, a hearing was held on the motion to dismiss for lack of subject matter jurisdiction.

[¶6.] On May 2, 2008, Cable and Save Union County filed a motion for an order granting leave to amend the original petition to add Jason Quam (Quam), Dale Harkness (Harkness), Arden Hanson, and Burdette Hanson, each a member of Save Union County, as individual named petitioners. Cable also filed an affidavit in support of his contention that he was a "person aggrieved" within the meaning of SDCL 7-8-27. Cable's property was identified in the affidavit as being approximately one quarter mile from the boundary of the proposed refinery. The affidavit also identified Cable's injuries as a consequence of the issuance of the zoning permit as: 1) a diminution of the quality of his tranquil, rural lifestyle and the threat of air, water, and ground pollution; 2) the nearness of his home to the proposed refinery, its accompanying heavy traffic and the thousands of construction laborers working and driving near his home; 3) an inability to move farm equipment from field to field during certain unspecified times due to heavy construction traffic; 4) thousands of construction laborers living in dormitories might cause trouble in the form of theft, drunkenness, and rowdy behavior; 5) danger from potential explosions and fires; 6) nearness of the refinery would make it impossible for Cable and his wife to live on their property, and that it would be difficult to sell the property; 7) drainage of water from Cable's property to the Hyperion site would no longer be allowed; and 8) Cable's asthma would be exacerbated by the pollution emitted by the refinery.

[¶7.] Quam, Harkness, Arden Hanson, and Burdette Hanson submitted affidavits in which they detailed similar complaints based on the proximity of their property to the proposed refinery. Burdette Hanson's affidavit stated he lived twenty rods from the boundary of the proposed refinery; Arden Hanson's affidavit stated he lived one-quarter of a mile from the boundary; Harkness's affidavit stated he lived 250 feet from the boundary; and Quam's placed him at less than one mile from the boundary.

[¶8.] Testimony was offered from Robert Kessler by affidavit. Kessler indicated he lived twenty-four miles from the boundary. He further testified that he probably would be less impacted than those who lived closer to the proposed refinery.

[¶9.] County resisted the motion to amend the petition to name four members of Save Union County as individual plaintiffs. Another hearing on the matter was held on May 27, 2008, at which the parties argued the motion to amend. The parties also were permitted to offer additional evidence on the issue of standing and the County's motion to dismiss for lack of subject matter jurisdiction.

[¶10.] A referendum election was scheduled shortly after Cable and Save Union County filed their petition. On June 3, 2008, the referendum passed with fifty-eight percent of the votes cast. Prior to the election, Cable and Save Union County did not seek a stay of the referendum vote or subsequently challenge the election procedure.

[¶11.] On July 23, 2008, the circuit court issued a memorandum opinion in which it granted County's motion to dismiss for lack of subject matter jurisdiction as to Save Union County due to lack of standing. The circuit court also denied the motion to amend to add its members as individuals, finding that any amendment would not relate back to the original petition. With regard to the issue of Cable as a "person aggrieved" within the meaning of SDCL 7-8-27, the circuit court determined that it was not able to conclude as a matter of law that Cable lacked standing. It then denied County's motion based on the record as it had been developed to that point. The circuit court determined that a reading of South Dakota law and cases from other jurisdictions on the issue of standing required "that Cable show pecuniary loss and/or that the harm he alleges be significantly greater to him than to the public in general."

[¶12.] On September 9, 2008, County filed a motion to dismiss for failure to state a claim under SDCL 15-6-12(b)(5). County contended that the limited procedural challenges to referendum election results available under South Dakota law did not include the type of petition before the circuit court. It further contended that the separation of powers doctrine precluded a judicial challenge to the substantive results of a referendum election. In its motion to dismiss for failure to state a claim, County asked the circuit court to consider all pleadings on the record and briefs filed with the circuit court.

[¶13.] On October 2, 2008, Cable filed a motion for summary judgment on his petition. As grounds for the motion, Cable asserted that South Dakota law prohibited the Union County Board of Commissioners from forming a special zoning area within Union County. Cable further alleged that Union County had a county- wide comprehensive plan and zoning ordinance*fn3 and that any attempt to establish a special zoning area within the county was in violation of SDCL 11-2-37.*fn4

[¶14.] On October 21, 2008, a hearing was held on Cable's motion for summary judgment and County's motion to dismiss for failure to state a claim upon which relief could be granted. The circuit court also permitted additional testimony and argument on the motion to dismiss for lack of subject matter jurisdiction. In addition to the pleadings on the County's original motion to dismiss, the circuit court heard testimony from Cable and other witnesses and considered affidavits submitted. The circuit court dismissed Cable's petition for lack of subject matter jurisdiction and issued findings of fact and conclusions of law in the matter on November 25, 2008. The circuit court concluded that Cable's personal injuries were not unique to him and not different from those that might be suffered by the general public as a result of the construction of the oil refinery. The circuit court further concluded that Cable's claim that he would be affected more than the general public by the oil refinery because he lived closer to the proposed site was speculative at best. It also concluded that Cable failed to provide any expert testimony as to the effects on his asthma as compared to the effect on members of the general public who might also have asthma. The circuit court also concluded that Cable failed to present any expert testimony regarding the risk of possible contamination of the aquifer under his property, or the air pollution Cable claimed would result from the building of the refinery as being more significant or harmful to him than to the general public. The circuit court further concluded that Cable's claims as to noise, smell, light, and traffic from the proposed refinery were speculative, and that Cable failed to provide any specific evidence that the traffic on the road where he lived would be heavier than in other parts of the county. Finally, the circuit court concluded that Cable failed to meet his burden to show that he would suffer an individual or personal injury distinguishable from an injury suffered by the public in general.

[¶15.] After concluding as a matter of law that Cable lacked standing as a "person aggrieved" within the meaning of SDCL 7-8-27, the circuit court also concluded that it did not have jurisdiction to review the merits of the appeal under SDCL 7-8-27. Notwithstanding the circuit court's finding that it had no subject matter jurisdiction over Cable's appeal, it then ruled on County's motion to dismiss based on the referendum vote and Cable's motion for summary judgment. Both motions were denied by the circuit court. It then dismissed the appeal.

[¶16.] Cable timely filed an appeal to this Court raising the following issues:

1. Whether the circuit court erred when it dismissed Cable's petition due to lack of standing as a "person aggrieved" ...


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