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Lippold v. Meade County Board of Commissioners

Supreme Court of South Dakota

January 24, 2018

GARY LIPPOLD and JANE MURPHY, and THE CITY OF STURGIS, a South Dakota Municipal Corporation, Appellees,
v.
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.

          ARGUED ON APRIL 25, 2017

         APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT MEADE COUNTY, SOUTH DAKOTA THE HONORABLE JEROME A. ECKRICH, III Retired Judge

          MARK 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.

          JACK 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.

          KENT R. HAGG JOHN STANTON DORSEY of Whiting, Hagg, Hagg, Dorsey & Hagg, LLP Rapid City, South Dakota Attorneys for appellant Buffalo Chip Campground, LLC.

          THOMAS H. FRIEBURG Frieburg, Nelson & Ask, LLP Beresford, South Dakota Attorneys for amicus South Dakota Municipal League.

          KERN, Justice

         [¶1.] 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.

         Facts and Procedural History

         [¶2.] 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.[1] 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.

         [¶4.] 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.

         [¶5.] 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[2] 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.

         [¶6.] 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.

         [¶7.] 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.[3] 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."

         [¶9.] 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 ...


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