GARY LIPPOLD and JANE MURPHY, and THE CITY OF STURGIS, a South Dakota Municipal Corporation, Appellees,
MEADE COUNTY BOARD OF COMMISSIONERS, ALAN AKER, ROBERT BERTOLOTTO, ROBERT HEIDGERKEN, GALEN NEIDERWERDER, and LINDA RAUSCH. Appellants, and BUFFALO CHIP CAMPGROUND, LLC. Intervenor and Appellant.
ON APRIL 25, 2017
FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT MEADE
COUNTY, SOUTH DAKOTA THE HONORABLE JEROME A. ECKRICH, III
F. MARSHALL of Bangs, McCullen, Butler, Foye & Simmons,
LLP Rapid City, South Dakota Attorneys for appellees Gary
Lippold and Jane Murphy.
GREGORY J. BARNIER Sturgis City Attorney Sturgis, South
Dakota Attorney for appellee City of Sturgis.
H. HIEB ZACHARY W. PETERSON of Richardson, Wyly, Wise, Sauck
& Hieb, LLP Aberdeen, South Dakota Attorneys for
appellants Meade County Board of Commissioners, Alan Aker,
Robert Bertolotto, Robert Heidgerken, Galen Neiderwerder,
& Linda Rausch.
R. HAGG JOHN STANTON DORSEY of Whiting, Hagg, Hagg, Dorsey
& Hagg, LLP Rapid City, South Dakota Attorneys for
appellant Buffalo Chip Campground, LLC.
H. FRIEBURG Frieburg, Nelson & Ask, LLP Beresford, South
Dakota Attorneys for amicus South Dakota Municipal League.
The City of Sturgis, Gary Lippold, and Jane Murphy appealed
the order of the Meade County Board of County Commissioners
approving incorporation of the proposed municipality of
Buffalo Chip City, South Dakota, and setting an election for
voters to decide whether to assent to incorporation. The
circuit court denied a request to stay the election. After
the election, the court heard the appeal pursuant to SDCL
7-8-27 and issued a judgment declaring that the Board's
order was invalid, that the election was a nullity, and that
consequently, Buffalo Chip City was void. The Board and
Buffalo Chip Campground, LLC (Campground), an intervenor,
appeal the circuit court's judgment. We reverse the
circuit court and vacate its judgment.
and Procedural History
This case began with an attempt by area residents affiliated
with the Campground to incorporate a new city in western
South Dakota near the city of Sturgis, home of the famous
Sturgis Motorcycle Rally. This event draws hundreds of thousands
of motorcycle enthusiasts to Sturgis each year and usually
occurs during the first full week of August. On February 11,
2015, twenty-six Meade County residents submitted a petition
for the municipal incorporation of Buffalo Chip City to the
Board. They withdrew the petition, however, when they
discovered the boundary for the proposed city was
impermissibly close to Sturgis. SDCL 9-3-1.1 requires the
boundary for a proposed city to be no closer than three miles
from the perimeter of any existing city.
[¶3.] On February 20, 2015, seventeen Meade County
residents submitted a new petition for the municipal
incorporation of Buffalo Chip City to the Board. The new
proposed boundary for Buffalo Chip City was more than three
miles away from Sturgis. The petitioners also filed a survey
and map of the proposed city, which were verified by an
affidavit of the surveyor. Additionally, petitioners filed a
census for organization of the new city listing landowners
and voters within the proposed territory. The February 20
petition, however, contained a discrepancy between the
written legal description of the proposed boundary and the
official map depicting the proposed boundary.
A few hours after the February 20 petition was filed, the
Sturgis City Council passed a resolution to annex the Sturgis
Municipal Airport, invoking an emergency provision under SDCL
9-19-13 that allowed the resolution to take effect
immediately. The council based its use of the emergency
provision on the need to preserve the health and welfare of
its citizens. On February 23, 2015, Sturgis filed the airport
annexation resolution with the Board. However, the Board
considered the annexation invalid, concluding that use of the
emergency provision was improper and that the filing lacked
an accurate map of the annexed territory. Further, the Board
determined that the petitions to incorporate Buffalo Chip
City had priority because they were filed first. No party,
however, has challenged the validity of the annexation in a
court of law.
On February 26, 2015, seventeen Meade County residents filed
two documents with the Board: an amended version of the
February 20 petition and a "new" petition for
incorporation of Buffalo Chip City. The petitioners corrected
the discrepancy between the description and the map in both
petitions. On February 27, 2015, the Board held a public
hearing and spent several hours listening to testimony and
discussing the petitions. Concluding the petitioners had
satisfied the requirements of SDCL chapter 9-3, the Board,
voted 3-2 to grant the amended petition. Specifically, the
Board found that the proposed area of incorporation had more
than thirty voters as required by SDCL 9-3-1 and that
more than a quarter of the voters signed the amended petition
in satisfaction of SDCL 9-3-5. Pursuant to SDCL 9-3-6, the
Board ordered the incorporation of Buffalo Chip City and
scheduled an election on May 7, 2015, for voters to decide
whether to assent to incorporation. Petitioners withdrew the
"new" petition in light of the fact that the Board
granted the amended petition.
On March 27, 2015, Lippold, Murphy, and several other Meade
County residents asked the Meade County State's Attorney
to appeal the Board's decision ordering the incorporation
of Buffalo Chip City and setting an election on the matter.
The Meade County State's Attorney declined to appeal.
On March 31, 2015, Lippold and Murphy appealed the
Board's order to the circuit court as persons aggrieved
by the Board's decision under SDCL 7-8-27. Sturgis also
appealed the decision. On April 20, 2015, the Campground
moved to intervene. Shortly thereafter, the circuit court
consolidated the cases.
[¶8.] On April 29, 2015, Sturgis filed a motion to stay
the election and requested a hearing before the circuit
court. On May 1, 2015, the circuit court held a
teleconference with Sturgis's attorney and counsel for
the Board. The circuit court denied the motion for a stay,
believing it could afford complete relief to Sturgis even
after the election and formal incorporation of Buffalo Chip
City if the Board's decision were later reversed. Sturgis
did not cite SDCL 9-3-20 in its motion to stay the election.
SDCL 9-3-20 provides that "[t]he regularity of the
organization of any acting municipality shall be inquired
into only in an action or proceeding instituted by or on
behalf of the state."
On May 7, 2015, the election occurred as scheduled, and a
majority of the voters chose to incorporate Buffalo Chip
City. On May 13, the Board declared Buffalo Chip City
formally incorporated pursuant to SDCL 9-3-12. On May 20, the
Board filed Buffalo Chip ...