IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
January 13, 2010
CITY OF DEADWOOD PLAINTIFF AND APPELLANT,
M. R. GUSTAFSON FAMILY TRUST, DEFENDANT AND APPELLEE.
APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT LAWRENCE COUNTY, SOUTH DAKOTA HONORABLE WARREN G. JOHNSON Judge.
The opinion of the court was delivered by: Zinter, Justice
CONSIDERED ON BRIEFS ON NOVEMBER 16, 2009
[¶1.] The M.R. Gustafson Family Trust (Gustafson) sought to demolish a building located in the City of Deadwood (City). The building was included on both the national and state registers of historic places. The City informed Gustafson that, under a City ordinance, review and permitting by the local Historic Preservation Commission (HPC) was necessary to demolish the building. Gustafson contended that such a review was not required under a proper interpretation of the statute authorizing the City ordinance. The City sued, and Gustafson counterclaimed to determine whether HPC review and permitting were required. The circuit court granted declaratory relief allowing Gustafson to demolish the building without HPC review. We reverse.
Facts and Procedural History
[¶2.] Gustafson is the owner of the "Sinclair Station," a former gas station located at 300 Main Street in Deadwood. The building has been unoccupied for years. Although the City had not adopted an ordinance designating the building as a local historic property under SDCL 1-19B-20 through 24,*fn1 the property was listed as a historic property on both the national and state registers of historic places.
[¶3.] SDCL 1-19B-62 authorizes cities to enact ordinances requiring review by local HPCs before any undertaking that may destroy a historic property listed on the national or state registers of historic places. The statute contains no requirement that the property must also have been designated by city ordinance as a local historic property pursuant to SDCL 1-19B-20 through 24. The decision to approve or deny a permit must, however, be based on the U.S. Department of the Interior Standards for Historic Preservation Projects codified in 36 C.F.R. 67 as of January 1, 1994. The statute provides in relevant part:
Any county or municipality may enact an ordinance requiring a county or municipal historic preservation commission to review any undertaking, whether publicly or privately funded, which will encroach upon, damage, or destroy any historic property included in the national register of historic places or the state register of historic places.
The ordinance may require the issuance of a permit before any undertaking which will encroach upon, damage, or destroy historic property may proceed. The decision to approve or deny a permit shall be based on the U.S. Department of the Interior Standards for Historic Preservation Projects codified in 36 C.F.R. 67 as of January 1, 1994.
SDCL 1-19B-62 (emphasis added).
[¶4.] The City adopted an ordinance giving its HPC these powers. Deadwood City Ordinance DCO 17.68.020(C)(11) requires the Deadwood HPC to "review and to issue or deny a permit for any undertaking or project... which will encroach upon, damage, or destroy any historic property included in the National Register of Historic Places or the State Register of Historic Places[.]" (Emphasis added.) Like SDCL 1-19B-62, the ordinance applies to any national or state registered historic property. The ordinance contains no requirement that the property must also be locally designated as a historic property pursuant to SDCL 1- 19B-20 through 24.
[¶5.] Gustafson informed the City of his intent to demolish the Sinclair Station. The City objected to the undertaking absent review and permitting by the HPC. Because the parties disagree whether review and permitting was required, the City commenced this action to enjoin demolition. Gustafson counterclaimed for a declaration that, under the statute and ordinance, the HPC lacked jurisdiction over property that was not locally designated as "historic" by a city ordinance pursuant to SDCL 1-19B-20 through 24. After a bench trial, the circuit court held that "[b]ecause the Sinclair [S]tation has not been designated by local ordinance as 'a historic property,'... City may not require a demolition permit be obtained from the [HPC]."
[¶6.] The issue in this case involves statutory construction. Our standard of review and rules of statutory construction are well settled:
Questions of law such as statutory interpretation are reviewed by the Court de novo.... 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. The intent of a statute is determined from what the legislature said, rather than what the courts think it should have said, and the [C]ourt must confine itself to the language used. Words and phrases in a statute must be given their plain meaning and effect. When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Court's only function is to declare the meaning of the statute as clearly expressed.
Martinmaas v. Engelmann, 2000 SD 85, ¶ 49, 612 NW2d 600, 611.
[¶7.] We must determine whether SDCL 1-19B-62, the statute authorizing DCO 17.68.020(C)(11), limits the HPC's power to review national and state historic properties to only those that have also been locally designated a historic property.*fn2
Although Gustafson's local designation requirement is not within the text of the statute, the circuit court incorporated SDCL 1-19B-21 through 24's local designation requirements into SDCL 1-19B-62. The circuit court believed that the Legislature intended SDCL 1-19B-62 to "supplement" the local designation statutes.*fn3 The plain language of the statute does not support the circuit court's conclusion.
[¶8.] The language of SDCL 1-19B-62 is clear, certain, and unambiguous. It provides that the HPC may review "any" historic property "included in the national register of historic places or the state register of historic places." There is nothing in the text of the statute, or any other provision of SDCL ch 1-19B, requiring a local designation before a HPC may exercise the permitting power granted by the statute. Consequently, as we have said many times, we do not utilize statutory construction aids to ascertain what the Legislature may have intended. In these circumstances, "the Court's only function is to declare the meaning of the statute as clearly expressed." Martinmaas, 2000 SD 85, ¶ 49, 612 NW2d at 611.*fn4
[¶9.] In this case, the circuit court's incorporation of statutes not mentioned in the text of SDCL 1-19B-62 would add an additional requirement that is not found in the statute. Had the Legislature intended to include a local designation requirement, it would have included that requirement in SDCL 1-19B-62. After all, SDCL 1-19B-20 through 24 were in existence at the time the Legislature enacted SDCL 1-19B-62. "A court is not at liberty to read into the statute provisions which the [L]egislature did not incorporate[.]" In re Adams, 329 NW2d 882, 884 (SD 1983) (quoting Red Bird v. Meierhenry, 314 NW2d 95, 96-97 (SD 1982)). "[F]or us to [add a statutory requirement] by judicial decree, as urged by [Gustafson], would require that we assume a role the [C]onstitution forbids. 'In interpreting legislation, this [C]ourt cannot add language that simply is not there.'" See In re Estate of Gossman, 1996 SD, 124, ¶ 11, 555 NW2d 102, 106 (quoting Helmbolt v. LeMars Mut. Ins. Co., 404 NW2d 55, 59 (SD 1987) (additional citations omitted)). We therefore conclude that if SDCL 1-19B-62 (the state and national designation requirement) should "supplement" the local designation statutes, that is a function for the Legislature, not the courts.
[¶10.] Reversed and remanded for further proceedings consistent with this opinion.
[¶11.] GILBERTSON, Chief Justice, and KONENKAMP and SEVERSON, Justices, concur.
[¶12.] MEIERHENRY, Justice, concurs with a writing.
MEIERHENRY, Justice (concurring).
[¶13.] I concur with the majority opinion. I write specifically to emphasize that the result of this opinion is that Gustafson is required under the city ordinance to come before the HPC for a demolition permit. The Deadwood City Ordinance requires the HPC to review a permit to demolish as follows:
In addition to any review by the city's planning and zoning commission and/or building official, to review and to issue or deny a permit for any undertaking or project, whether publicly or privately funded, which will encroach upon, damage or destroy any historic property included in the National Register of Historic Places or the State Register of Historic Places, which decision to approve or deny shall be based upon the United States Department of the Interior Standards for Historic Preservation Projects codified in 36 CFR 67 as of January 1, 1994. Properties owned by the state of South Dakota are exempt from this review. This section shall not apply to any project or undertaking which the historic preservation commission or its staff determines will not encroach upon, damage or destroy any historic property. Such determination shall be based upon the guidelines adopted by the Deadwood historic preservation and district commission(s) [.]*fn5
DCO 17.68.020(C)(11) (emphasis added). This language provides Gustafson with the same procedural protections that an owner of locally designated historic property would receive. Therefore, Gustafson still has the right to a hearing on the permit request, and the HPC must consider his permit request under the same criteria as other local, state, or national historically designated property.