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In re Application of B.Y. Development

IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA


July 7, 2010

IN THE MATTER OF THE APPLICATION OF B.Y. DEVELOPMENT, INC., A SOUTH DAKOTA CORPORATION, FOR PROJECT APPROVAL DEADWOOD HISTORIC PRESERVATION OFFICE NO. 07050

APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT LAWRENCE COUNTY, SOUTH DAKOTA HONORABLE RANDALL L. MACY Judge.

The opinion of the court was delivered by: Konenkamp, Justice

CONSIDERED ON BRIEFS ON APRIL 26, 2010

[¶1.] A business sought approval from the local historic preservation commission to expand its building in a historic landmark district. In denying the application, the commission relied on city ordinances to conclude, in the words of the enabling statute, that the project would "encroach upon, damage, or destroy" certain historic properties. In reversing the commission's ruling, the circuit court interpreted the enabling statute without reference to the city ordinances the statute empowered the city to enact. We reverse and remand for the circuit court to examine both the statute and the ordinances to determine whether the commission properly denied the application.

Background

[¶2.] B.Y. Development sought approval from the City of Deadwood Historic Preservation Commission to expand Cadillac Jack's Gaming Resort located in the Deadwood National Historic Landmark District. On November 1, 2007, after three hearings, the Commission denied B.Y.'s application. The Commission found that B.Y.'s project would encroach upon, damage, or destroy historic properties in the National Register of Historic Places and the State Register of Historic Places. See SDCL 1-19B-62; Deadwood City Ordinance (DCO) 17.68.020(11); DCO 17.68.050. Further, the Commission denied the permit for noncompliance with 36 CFR 67. See SDCL 1-19B-62.

[¶3.] B.Y. appealed the denial to the circuit court. Following a hearing, the court issued a memorandum decision remanding the case to the Commission. The Commission was ordered to identify the specific historic properties encroached upon, damaged, or destroyed by B.Y.'s project. After two additional public hearings, the Commission again denied B.Y.'s application. Using, among other things, the criteria in DCO 17.68.050, the Commission identified the Sinclair Station, Auer Garage, Auer House, and Ferris House as specific protected properties affected.*fn1

[¶4.] B.Y. again appealed the Commission's decision to the circuit court. At the hearing, the City argued that in deciding whether an undertaking encroaches upon, damages, or destroys a protected historic property, the Commission must consider the guidelines adopted under DCO 17.68.050. In particular, counsel for the City argued that the Commission "went through [the criteria of DCO 17.68.050] and explained that very carefully and in great detail, how they believed in that fashion, with those criteria, how this project would either encroach upon, damage, or destroy specific historic properties that they listed." The court asked counsel for the City, "How can a property owner be on notice as to what guidelines the [Commission] is going to use to make a determination as to whether a project is going to damage, destroy, or encroach upon historic property?" Counsel for the City directed the court to DCO 17.68.020(11), which provides that adopted guidelines will be considered in determining whether a project will encroach upon, damage, or destroy a historic property, and DCO 17.68.050, where it states that "the Historic Preservation Commission shall use the following criteria and established design review guidelines." The court questioned whether those guidelines only come into effect after it is determined that the project will damage, destroy, or encroach upon district property. Counsel for the City responded, "But I think there needs to be some criteria to look at in some cases, especially when you're talking about buildings either being within the District or immediately adjacent to specific historic buildings, like the Ferris House." Counsel for B.Y. remarked that "there has been no official set of guidelines that delineate what would encroach upon, damage, or destroy. . . . Even if [the City has], Your Honor, they don't have the authority to do so. We believe that the [Commission] and the City of Deadwood are creatures of statute, and, as such, they are required to go back to SDCL 1-19B-62."

[¶5.] The court issued its second memorandum decision and an amended order of remand, reversing the Commission's ruling. Citing the plain meaning of the words in SDCL 1-19B-62, the court found no facts to support the conclusion that B.Y.'s project would "encroach upon, damage, or destroy" any specific protected property. On appeal, the City of Deadwood asserts that the circuit court erred in ruling that the Deadwood National Landmark District was not a "property" under SDCL 1-19B-62 and erred when it reversed the Commission's decision to deny B.Y.'s application for project approval.*fn2

Analysis and Decision

[¶6.] The City first argues that the use of the phrase "any historic property" in SDCL 1-19B-62 means that the Commission can also protect historic districts. The Deadwood National Historic Landmark District is not a locally designated historic district under SDCL ch 1-19B. Nonetheless, because B.Y.'s project is within the Deadwood National Historic Landmark District, the City maintains that it was entitled to consider whether B.Y.'s project would encroach upon, damage, or destroy the Deadwood National Historic Landmark District , in addition to specific historic properties.

[¶7.] Statutory interpretation is a question of law reviewed de novo. In re Certification of a Question of Law from United States District Court, District of South Dakota, Southern Division, 2010 SD 16, ¶10, 779 NW2d 158, 162 (citation omitted). When interpreting the words of a statute, we give its language paramount consideration, with emphasis toward the plain meaning. Esling v. Krambeck, 2003 SD 59, ¶6, 663 NW2d 671, 675-76 (citing City of Rapid City v. Anderson, 2000 SD 77, ¶7, 612 NW2d 289, 291-92 (citations omitted)). Only when the language of a statute is unclear or ambiguous do we apply our rules of construction. See Certification of a Question of Law from United States District Court, District of South Dakota, Southern Division , 2010 16, ¶10, 779 NW2d at 162 (citing Wiersma , 1996 SD 16, ¶6, 543 NW2d at 790 (citation omitted)).

[¶8.] SDCL 1-19B-62 provides:

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.

Properties owned by the State of South Dakota are exempt from local review. (Emphasis added.) From a plain reading of the statute, the phrase "any historic property" does not include historic districts. The Legislature used the word "property" and by that use we deduce that the Legislature intended to include only those specific properties in the national or state registries of historic places. We discern a difference between historic properties and historic districts, which are made up of buildings, structures, sites, or surroundings that are of historical, architectural, archaeological, paleontological, and cultural significance. See SDCL 1-19B-34. To construe "any historic property" to encompass historic districts as the City insists would force into the statute a word that is simply not there. The circuit court did not err when it excluded the Deadwood National Historic Landmark District from consideration under SDCL 1-19B-62.

[¶9.] The parties next dispute the meaning of "encroach upon, damage, or destroy" as used in SDCL 1-19B-62 and as applied by the Commission against B.Y.'s application. The City maintains that the Commission was required to use the standards in DCO 17.68.050. B.Y., on the other hand, contends that "encroach upon, damage, or destroy" must be defined using a dictionary or caselaw usage.*fn3

Although the City argued the applicability of the ordinances to the circuit court, the court did not consider either DCO 17.68.020(11) or DCO 17.68.050 in its decision. Rather, it limited its analysis to the terms of SDCL 1-19B-62.

[¶10.] SDCL 1-19B-62 is an enabling statute. It gives "any county or municipality" the authority to "enact an ordinance " to review projects that will "encroach upon, damage, or destroy" certain properties. Id. (emphasis added).

Therefore, the statutory language alone does not control whether the Commission's ruling was proper, and thus the court erred when it did not consider the ordinances enacted by the City. Here, the City enacted DCO 17.68.020(11), giving the Commission the power "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, 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[.]" The ordinance further provides that "[t]his 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)[.]" DCO 17.68.020(11). DCO 17.68.050 then sets forth the "criteria and established design review guidelines" the Commission "shall use[.]"*fn4 The Commission also adopted the Downtown Design Guidelines to provide standards in reviewing project applications.*fn5

[¶11.] Because DCO 17.68.020(11) indicates that the section will apply only if the undertaking will encroach upon, damage, or destroy protected historic properties, and to make such determination, the Commission shall use certain adopted standards, the Commission was empowered to consider the standards in DCO 17.68.050 when it evaluated B.Y.'s project application. But the propriety of the Commission's decision that such encroachment, damage, or destruction would occur based on those guidelines has not yet been reviewed.*fn6 Therefore, we remand for the court to review the Commission's decision under DCO 17.68.020(11) and DCO 17.68.050, as well as SDCL 1-19B-62.

[¶12.] Reversed and remanded.

[¶13.] GILBERTSON, Chief Justice, and ZINTER, MEIERHENRY, and SEVERSON, Justices, concur.


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