DUANE ABATA, DONALD BURGER, and BARRETT WENDT, Plaintiffs and Appellees,
PENNINGTON COUNTY BOARD OF COMMISSIONERS, and LLOYD LACROIX, MARK DISANTO, DEB HADCOCK, GEORGE FEREBEE, and RON BUSKERUD, in their capacity as members of the Pennington County Board of Commissioners, and JULIE PEARSON, in her capacity as the Pennington County Auditor, Defendants and Appellants.
CONSIDERED ON BRIEFS ON APRIL 29, 2019
FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA THE HONORABLE JANE WIPF
MICHAEL M. HICKEY KELSEY B. PARKER of Bangs, McCullen,
Butler, Foye & Simons, LLP Rapid City, South Dakota
Attorneys for plaintiffs and appellees.
MATTHEW E. NAASZ of Gunderson, Palmer, Nelson & Ashmore,
LLP Rapid City, South Dakota Attorneys for defendants and
GILBERTSON, CHIEF JUSTICE
Duane Abata, Donald Burger, and Barrett Wendt (collectively
the Citizens) brought a declaratory judgment action
challenging the validity of a zoning ordinance amendment
passed by the Pennington County Board of Commissioners
(Board). The parties filed cross-motions for summary
judgment. The circuit court granted the Citizens' motion,
finding the ordinance void for lack of compliance with
statutory notice requirements. The Board appeals. We
and Procedural History
In April 2016, the Board passed a moratorium on construction
permits for alternative energy and mining operations in
Pennington County (County). It then formed a committee to
review Section 507-B of the Pennington County Zoning
Ordinance (PCZO) regulating mining permits. The committee
compiled its work into a proposed ordinance amendment, OA
17-02. Notice in the three legal newspapers of the County
NOTICE IS HEREBY GIVEN that the Pennington County Planning
Commission and the Pennington County Board of Commissioners
will hold a public hearing to consider the following proposed
ordinance amendment to the Pennington County Zoning Ordinance
adopted as an adjunct to the Pennington County Comprehensive
OA 17-02 - Amendment to Section 103 "Definitions";
Section 205-B-17 "General Agriculture District";
Section 212-B-12 "Heavy Industrial District";
Section 507-B "Mining Permits"; and Section 511
Said hearing will be held by the Planning Commission on
Monday, December 18, 2017, at 9:00 a.m. and the Pennington
County Board of Commissioners on Tuesday, January 2, 2018, at
10:30 a.m. in the Commissioners' Meeting Room at the
Pennington County Administration Building, Rapid City, South
Dakota. Any interested party may appear and be heard. Copies
of the proposed amendments may be viewed at the Planning
Department located at 130 Kansas City Street, Suite 200,
Rapid City, South Dakota, during regular business hours.
was published on November 29, December 6, and December 13 in
the Hill City Prevailer; November 30,
December 7, and December 14 in the Pennington
County Courant; and December 1, December 8, and
December 15 in the Rapid City Journal.
As advertised, the Pennington County Planning Commission
(Commission) held a public hearing on December 18, 2017.
After concerns were raised regarding OA 17-02, the Commission
voted to send the amendment back to the committee and
continue discussion to the January 8, 2018 Commission
meeting. At the January 2 Board meeting originally noticed
for public hearing, no discussion took place and the matter
was placed on the consent agenda indicating a continuance to
the January 16 Board meeting, pending the Commission's
recommendation. Yet, by January 16, debate continued before
the Commission. Thus, the Board's consent agenda for its
January 16 meeting noted that the matter was again delayed
until February 6. Notably, throughout the discussion of OA
17-02, hearing agendas for both the Commission and Board
meetings were posted on the County website and bulletin
boards 24 hours before the meetings. Meeting attendees were
alerted to the dates of continued discussion, which were also
recorded in meeting minutes posted on the County website.
At the January 8 Commission meeting, it was brought to the
Commission's attention that unforeseen circumstances
prevented the committee from meeting, but the committee would
meet the following day. Therefore, discussion of OA 17-02 was
continued until January 17. There were several hours of
discussion regarding the amendment before the Commission on
January 17. The commissioners then voted to continue the
matter to the January 22 meeting. The Commission voted to
approve OA 17-02 at the January 22 meeting.
With a recommendation from the Commission, the amendment was
before the Board at its February 6 meeting for its first
reading. Discussion continued to a February 13 special
meeting. On February 13, the first reading was continued
until February 20 and a special meeting was scheduled for
February 23. On February 20, the first reading of OA 17-02
was approved and an additional special meeting was scheduled
for February 27 for the second reading of the amendment. On
February 23, a work session for OA 17-02 was held and further
changes were made to the amendment. The second reading of OA
17-02 was held February 27 and the Board voted to adopt it.
Notice of adoption was published once in each of the three
legal newspapers in the County.
On March 30, 2018, the Citizens filed a complaint for
declaratory relief, seeking a judgment that OA 17-02 was
"invalid, ineffective, and unenforceable because
publication has not been completed" per the provisions
of SDCL chapter 7-18A requiring that adopted zoning
ordinances be published twice in legal county newspapers.
Following the Board's answer and a stipulation to amend
the complaint, Citizens filed an amended complaint on May 25,
2018. They added an additional count to their request for
declaratory relief, alleging that OA 17-02 was void for
"failure to comply with the statutory notice provisions
for the public hearings before the Planning Commission and
the County" pursuant to SDCL 11-2-18 and -19.
The parties filed cross-motions for summary judgment. On July
25, 2018, the court issued its order granting the
Citizens' motion for summary judgment. The court found
that SDCL chapter 11-2 controlled the amendment of zoning
ordinances, and thus the County complied with requirements
set forth in that chapter requiring that adoption of an
ordinance amendment be published once in legal county
newspapers. However, the court found that OA 17-02 was
void because the County failed to comply with notice and
hearing requirements by not providing legal notice of each of
the continued hearings. The Board appeals, raising the
1. Whether Citizens had standing to challenge OA 17-02.
2. Whether Citizens waived their objections to the notice
requirements by attending hearings regarding the adoption of
3. Whether OA 17-02 is void for lack of compliance with
statutory notice requirements.
A grant or denial of summary judgment is reviewed de novo.
Zochert v. Protective Life Ins. Co., 2018 S.D. 84,
¶ 18, 921 N.W.2d 479, 486. We can affirm the circuit
court for any basis which supports the court's ultimate
determination. BAC Home Loans Servicing, LP v.
Trancynger, 2014 S.D. 22, ¶ 8, 847 N.W.2d 137, 140.
The facts of this case are undisputed. Thus, we examine the
circuit court's legal conclusions regarding statutory
interpretation with no deference to the court's decision.
Huston v. Martin, 2018 S.D. 73, ¶ 10, 919
N.W.2d 356, 361.
Whether Citizens had standing ...