STEVE HYDE, KATHY HYDE, CLARK GUTHMILLER, LISA GUTHMILLER, WARREN WILSON, SHERRI WILSON, JIM THIBODEAU, DAN LEONARD, LARRY WILCOX, RICHARD HYDE and CHERYL HYDE, Plaintiffs and Appellants,
SULLY COUNTY BOARD OF ADJUSTMENT, Defendant and Appellee, and RING-NECK ENERGY & FEED, LLC, a South Dakota Limited Liability Company, Intervenor and Appellee.
CONSIDERED ON BRIEFS ON AUGUST 29, 2016
FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT SULLY
COUNTY, SOUTH DAKOTA THE HONORABLE JOHN L. BROWN Judge.
ALTMAN Aberdeen, South Dakota Attorney for plaintiffs and
H. HIEB ZACHARY W. PETERSON of Richardson, Wyly, Wise, Sauck
& Hieb, LLP Aberdeen, South Dakota Attorneys for
defendant and appellee Sully Cty. Bd. of Adjustment.
E. SMITH Neumayr & Smith Gettysburg, South Dakota
Attorneys for intervenor and appellee.
Petitioners appealed the decision of the Sully County Board
of Adjustment to grant a conditional use permit to Ring-Neck
Energy & Feed, LLC, for an ethanol plant. Petitioners
appeal from the circuit court's dismissal of the appeal
as untimely. We affirm.
On July 20, 2015, the Sully County Board of Adjustment (the
Board) considered an application by Ring-Neck Energy &
Feed, LLC, for a conditional use permit (CUP) that would
allow construction and operation of an ethanol plant. The
Board granted the CUP and adopted findings of fact and
conclusions of law to that effect. Ring-Neck Energy's
application was marked approved, and the Board's chairman
signed and dated it on July 20, 2015. The approved permit was
filed that same day in the Sully County Planning and Zoning
office. When the Board next met, on August 4, 2015, it
approved the minutes from the July 20th meeting. When doing
so, it approved additional language to be added to the
conditions of the CUP. After the addition, which is
underlined below, condition f (1) reads:
Applicant shall remain responsible either individually or
through cooperation with the County in any combination of the
funding sources set forth in Exhibit 2, Section 10, so as to
ensure the Sully County budget is protected from the
estimated $1.2 million cost for road paving and/or
restructuring and rebuilding to account for the truck
traffic of 186th Street from U.S. Highway 83 east to 305th
Avenue, and then south to Applicant's site entrance (apx.
1.2 miles); In the event that funding sources described in
Exhibit 2, Section 10, are insufficient or unobtainable,
Applicant shall bear that responsibility . . . .
On August 20, 2015, Petitioners filed a petition for writ of
certiorari with the circuit court. Petitioners alleged that
the Board's decision granting the CUP was illegal. In
their petition, Petitioners claimed that the Board's
decision was ultra vires because the meeting violated
open-meetings laws, the Board failed to adopt rules in
accordance with SDCL 11-2-54, and it failed to adopt criteria
pursuant to SDCL 11-2-17.3 for evaluating each conditional
use. Petitioners also alleged that an ethanol plant is not
allowed in the zoning district where Ring-Neck Energy plans
to build and that various aspects of the ethanol plant did
not meet zoning ordinance requirements or were not allowed
under the ordinances. The court granted the writ on August
25, 2015, and ordered the Board to produce a transcript of
the record and proceedings for the court's review.
Ring-Neck Energy moved to intervene, and the circuit court
granted its motion. Ring-Neck Energy subsequently moved to
quash the writ and dismiss the petition as untimely. The
court decided to defer the motions hearing until the entire
matter could be heard on the merits on October 26, 2015. The
court issued its decision on November 10, 2015. The court
determined that it lacked subject-matter jurisdiction because
the petition was untimely under SDCL 11-2-61. On appeal to
this Court, Petitioners assert that their petition was
timely. They also contend that the Board failed to follow the
State's open-meetings laws, that it did not act within
its authority when it allowed uses that did not comply with
the zoning ordinances, and that the Board's failure to
follow procedural rules voids the Board's decision.
We first address the timeliness of the petition for writ of
certiorari. "This [C]ourt has consistently recognized
that the right to an appeal is purely statutory and no appeal
may be taken absent statutory authorization. An attempted
appeal from which no appeal lies is a nullity and confers no
jurisdiction on the court except to dismiss it."
Elliott v. Bd. of Cty. Comm'rs of Lake Cty.,
2005 S.D. 92, ¶ 15, 703 N.W.2d 361, 368 (quoting
Appeal of Lawrence Cty., 499 N.W.2d 626, 628 (S.D.
1993)). "We review issues regarding a [c]ourt's
jurisdiction as questions of ...