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Abata v. Pennington County Board of Commissioners

Supreme Court of South Dakota

July 10, 2019

DUANE ABATA, DONALD BURGER, and BARRETT WENDT, Plaintiffs and Appellees,
v.
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

          APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA THE HONORABLE JANE WIPF PFEIFLE Judge

          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 appellants.

          GILBERTSON, CHIEF JUSTICE

         [¶1.] 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 affirm.[1]

         Facts and Procedural History

         [¶2.] 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 provided:

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 Plan:
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 "Fees."
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.

         Notice 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.

         [¶3.] 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[2] 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.

         [¶4.] 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.

         [¶5.] 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.

         [¶6.] 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.

         [¶7.] 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.[3] 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 following issues:

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 OA 17-02.
3. Whether OA 17-02 is void for lack of compliance with statutory notice requirements.

         Standard of Review

         [¶8.] 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.

         Analysis and Decision

         1. Whether Citizens had standing ...


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