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City of Deadwood v. M. R. Gustafson Family Trust

January 13, 2010

CITY OF DEADWOOD PLAINTIFF AND APPELLANT,
v.
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]."

Decision

[¶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 ...


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