APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT GRANT COUNTY, SOUTH DAKOTA HONORABLE ROBERT L. TIMM Judge
The opinion of the court was delivered by: Gilbertson, Chief Justice
CONSIDERED ON BRIEFS ON JANUARY 10, 2011 OPINION FILED 02/02/11
[¶1.] Grant County Concerned Citizens submitted a proposed amendment to a zoning ordinance to the Grant County Board of Commissioners. After proceeding through the proper procedures, the Board of Commissioners rejected the amendment. The Board of Commissioners then denied a referendum petition by Concerned Citizens to refer the proposed amendment to qualified county voters. The circuit court denied the Concerned Citizens' petition for a writ of mandamus to compel the Board of Commissioners to refer the proposed amendment. Concerned Citizens appeals the denial of the writ of mandamus.
[¶2.] The parties stipulated to the facts. Grant County Concerned Citizens (Petitioner) submitted, under SDCL 11-2-28, a proposed amendment to a zoning ordinance that would increase the setbacks for Class A, B, C, and D Concentrated Animal Feeding Operations.* The Grant County Board of Commissioners (Board) referred the proposed amendment to the Grant County Planning and Zoning Board for a recommendation. The Planning and Zoning Board held a public hearing on the proposed amendment, received public testimony, deliberated, and unanimously voted to recommend that the proposed amendment be rejected. At the next County Commissioners' meeting, the recommendation was presented and additional public comments were received from both proponents and opponents of the proposed amendment. Board Chairman Paul Dummann moved to adopt the proposed amendment and called for a second three times. The motion died for lack of a second. After more discussion, Commissioner Clayton Tucholke moved to accept the recommendation to reject the proposed amendment. The motion received a second and carried 3-2. [¶3.] Petitioner filed a petition with the Board under SDCL 11-2-22 and SDCL §§ 7-18A-15 to -24 to refer the proposed amendment to a public vote. The referral petition was signed by more than five percent of the registered voters, as required by SDCL 7-18A-15. At the Board's next meeting, the Board rejected the referendum petition on the grounds that the matter was not referable. The Board's decision was published in the Grant County Review. [¶4.] Petitioner filed for a writ of mandamus in circuit court. After the parties stipulated to the facts and a hearing was held, the circuit court issued a letter decision agreeing with the Board. The court later issued its findings of fact and conclusions of law, denying the petition for a writ of mandamus and dismissing the matter on its merits with prejudice. It held that the proposed amendment rejected by the Board was not a legislative decision and was therefore not referable to a referendum vote. [¶5.] On appeal, Petitioner raises one issue:
* Petitioner also submitted a proposed amendment to include barns and manure lagoons within the setback requirements. This amendment was accepted by the Board and is not an issue on appeal.
Whether a proposed amendment to a zoning ordinance that is rejected by a county commission is referable to the qualified voters of the county.
STANDARD OF REVIEW [¶6.] This Court reviews the decision to grant or deny a writ of mandamus under an abuse of discretion standard. Vitek v. Bon Homme Cnty. Bd. of Comm'rs
2002 S.D. 45, ¶ 5, 644 N.W.2d 231, 233. This Court reviews questions of statutory interpretation de novo. Discover Bank v. Stanley, 2008 S.D. 111, ¶ 15, 757 N.W.2d 756, 761 (citing Martinmaas v. Engelmann, 2000 S.D. 85, ¶ 49, 612 N.W.2d 600, 611).
[¶7.] We begin by briefly discussing the remedy of a writ of mandamus. South Dakota law provides:
The writ of mandamus may be issued by the Supreme and circuit courts, to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station; or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal, corporation, board, or person.
SDCL 21-29-1. In addition, the "writ of mandamus must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law." SDCL 21-29-2. Generally, mandamus is available to compel performance of ministerial duties. Black Hills Cent. R.R. Co. v. City of Hill City 2003 S.D. 152, ¶ 14, 674 N.W.2d 31, 34. In order to prevail, Petitioner must show a clear legal right to submit the rejected amendment to the referendum process. See Bechen v. Moody Cnty. Bd. of Comm'rs, 2005 S.D. 93, ¶ 9, 703 N.W.2d 662, 664; Vitek, 2002 S.D. 45, ¶ 12, 644 N.W.2d at 235. Petitioner must also show that the Board has a definite legal obligation to submit the rejected amendment to the referendum process. The Board asserts, and the circuit court agreed, that the Board's action of rejecting Petitioner's proposed amendment was not a legislative decision. Because it was not a legislative decision, it cannot be submitted to the referendum process. [¶8.] As noted in Vitek , "South Dakota, through its ...