#28704-a-DG 2019 S.D. 39
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
**** 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.
**** 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. **** CONSIDERED ON BRIEFS ON APRIL 29, 2019 OPINION FILED 07/10/19 #28704
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:
1. The circuit court incorrectly held that the notice of hearing before the Pennington County Planning Commission for the proposed zoning amendment was inadequate. However, because the notice of the hearing before the Board was inadequate, we affirm the circuit court’s determination on summary judgment that the amended ordinance was void. “[O]n appeal this Court will affirm the circuit court’s ruling granting a motion for summary judgment if any basis exists to support the ruling.” Stern Oil Co. v. Brown, Inc., 2012 S.D. 56, ¶ 9, 817 N.W.2d 395, 399 (quoting Discover Bank v. Stanley, 2008 S.D. 111, ¶ 19, 757 N.W.2d 756, 762). -1- #28704
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-
2. Items on consent agendas are noncontroversial and routine. The consent agenda may be acted upon by one motion and vote of the Board. -2- #28704
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
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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. The circuit court found that provisions within SDCL chapter 7-18A cited by the Citizens were general, while SDCL chapter 11-2 provided the more specific, controlling law for amendments to zoning ordinances. This finding by the circuit court is not an issue in this appeal. -4- #28704
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
[¶9.] The Board argues that Citizens do not have standing to bring this
action, citing Cable v. Union County Board of Commissioners, 2009 S.D. 59,
769 N.W.2d 817. 4 Cable involved a challenge under SDCL 7-8-27 to a rezoning
permit issued by Union County to allow for the construction of an oil refinery.
Id. ¶ 1, 769 N.W.2d at 820. SDCL 7-8-27 provides for “appeal to the circuit court by
any person aggrieved” by decisions of boards of county commissioners. We stated
for appeals under SDCL 7-8-27, a plaintiff must demonstrate standing by
establishing an injury in fact, a causal connection between the injury and the
4. The Board raised the first two issues below, although the circuit court did not directly address them in its decision. -5- #28704
defendant’s conduct, and that the injury could be resolved by a favorable decision.
Id. ¶ 21, 769 N.W.2d at 825-26.
[¶10.] We further clarified that as to the “injury in fact” element of standing,
to be a person “aggrieved” under SDCL 7-8-27 requires showing that the person
suffered a unique injury not suffered by the public in general. Id. ¶ 26, 769 N.W.2d
at 827. In that case, we concluded that Cable was not a “person aggrieved” within
the meaning of SDCL 7-8-27 because his injuries were not unique when compared
with the injuries suffered by others living within a mile of a proposed refinery site.
Id. ¶ 32, 769 N.W.2d at 829. Drawing upon this holding, the Board contends that
Citizens have failed to establish a concrete, non-speculative injury different than
the public in general.
[¶11.] However, the statutory basis for this appeal is different than in Cable,
and thus its analysis does not control here. Citizens have instituted a declaratory
judgment action under SDCL chapter 21-24. 5 The Declaratory Judgment Act is
remedial in nature and should be construed liberally, “particularly . . . when the
construction of statutes dealing with zoning, taxation, voting or family relations
presents matters involving the public interest in which timely relief is desirable.”
Kneip v. Herseth, 87 S.D. 642, 648, 214 N.W.2d 93, 96-97 (1974). The philosophy
5. SDCL 21-24-3 provides:
Any person interested under a deed, will, written contract, or other writing constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder. -6- #28704
behind declaratory judgment is to “enable parties to authoritatively settle their
rights in advance of any invasion thereof.” Benson v. State, 2006 S.D. 8, ¶ 21, 710
N.W.2d 131, 141 (quoting Kneip, 87 S.D. at 647, 214 N.W.2d at 96). However, a
court cannot be required to “speculate as to the presence of a real injury.” Boever v.
S.D. Bd. of Accountancy, 526 N.W.2d 747, 750 (S.D. 1995).
[¶12.] Thus, to establish standing in a declaratory judgment action the
plaintiff must have “personally . . . suffered some actual or threatened injury as the
result of the putatively illegal conduct of the defendant.” Benson, 2006 S.D. 8, ¶ 22,
710 N.W.2d at 141 (quoting Parsons v. S.D. Lottery Comm’n, 504 N.W.2d 593, 595
(S.D. 1993)). Specifically, “a litigant must show: (1) an injury in fact suffered by the
plaintiff, (2) a causal connection between the plaintiff’s injury and the conduct of
which the plaintiff complains, and (3) the likelihood that the injury will be
redressed by a favorable decision.” Id. We must determine whether the elements
for establishing standing in a declaratory judgment action under Benson are met in
this case.
[¶13.] Here, Citizens claim an actual or threatened injury resulting from a
violation of their due process rights in passing a zoning ordinance affecting their
property. A review of the record indicates that the Citizens reside near Perli
Quarry, a mining operation owned and operated by Croell Redi-Mix. In fact,
Citizens here are the same landowners we considered in Croell Redi-Mix, Inc. v.
Pennington County Board of Commissioners, 2017 S.D. 87, 905 N.W.2d 344. In
Croell, we determined that the landowners neighboring Perli Quarry could be
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affected by mining operations by impacting water quality, creating dust, and
increasing traffic. Id. ¶¶ 12, 15, 905 N.W.2d at 348, 349.
[¶14.] Furthermore, in the hearings before the Board dealing with OA 17-02,
the Citizens expressed a strong concern with how pre-existing mining operations,
such as those at Perli Quarry, would be regulated under the zoning ordinance.
Specifically, they expressed displeasure with the fact that the pre-existing
operations would be “grandfathered in.” 6 In a motion to stay before the circuit court
in the present action, the Citizens emphasized that due to their proximity to Perli
Quarry, the mining operations there would adversely affect them by causing, among
other issues, “traffic problems, health issues, environmental concerns, [and] reduced
property values[.]” Thus, Citizens have demonstrated an actual or threatened
injury affecting their property if OA 17-02 was enacted in violation of Citizen’s due
process rights. The alleged injury is causally connected to the way the Board
provided notice of the hearings regarding OA 17-02. Finally, a favorable holding for
the Citizens would render OA 17-02 void for violation of the notice provisions within
SDCL chapter 11-2, redressing the Citizens’ rights to due process concerning
ordinances affecting their property. Citizens have standing to bring this action.
2. Whether Citizens waived their objections to the notice requirements by attending hearings regarding the adoption of OA 17-02.
[¶15.] The Board argues that “Citizens waived any argument they may have
to the adequacy of notice by appearing at the public hearings and being heard.”
6. The hearing proceedings were available to the circuit court as videos posted on YouTube. Several of the YouTube links were cited by the court in its decision. -8- #28704
Thus, it contends that any possible error in the publication process did not prejudice
the Citizens. Indeed, the Citizens and their attorneys attended and were heard at
nearly every hearing held regarding OA 17-02, in addition to submitting written
comments to the Board. 7
[¶16.] However, we have stated that statutes setting forth procedural notice
requirements for enacting zoning ordinances must be strictly complied with—
improperly enacted ordinances are unenforceable from inception. Pennington Cty.
v. Moore, 525 N.W.2d 257, 258-59 (S.D. 1994). This is due to the strong due process
interests involved because “zoning ordinances are in derogation of common-law
property rights and find their authority through the state police power; accordingly,
municipalities and other political subdivisions must scrupulously comply with
statutory requirements, including notice and hearing, in order to provide due
process of law.” Id. at 259 (quoting Carter v. City of Salina, 773 F.2d 251, 254 (10th
Cir. 1985)). In the face of noncompliance with procedures for enacting zoning
ordinances, we have rejected defenses such as estoppel and public acquiescence.
Dodds v. Bickle, 77 S.D. 54, 60-61, 85 N.W.2d 284, 287-88 (1957) (rejecting estoppel
defense when city failed to give notice of hearing); Moore, 525 N.W.2d at 258
(rejecting acquiescence defense where challenge was brought over twenty years
after initial attempts to enact ordinance where county failed to comply with
mandatory notice and hearing requirements).
7. It appears that the only hearing the Citizens or their attorneys did not attend was the January 22 Commission hearing. -9- #28704
[¶17.] The fact that Citizens were present and heard does not inherently
validate OA 17-02. Notice requirements are set forth to provide notice to all citizens
potentially impacted by the enactment, not just those who later bring legal
challenges. Here, it is the Board’s burden to comply with those statutes, any
violation of which renders a zoning ordinance amendment void. Citizens have not
waived their objections to alleged violations of due process.
3. Whether OA 17-02 is void for lack of compliance with statutory notice requirements.
[¶18.] There are two primary rules of statutory construction. “The first rule
is that the language expressed in the statute is the paramount consideration. The
second rule is that if the words and phrases in the statute have plain meaning and
effect, we should simply declare their meaning and not resort to statutory
construction.” In re W. River Elec. Ass’n, Inc., 2004 S.D. 11, ¶ 15, 675 N.W.2d 222,
226 (quoting Goetz v. State, 2001 S.D. 138, ¶ 15, 636 N.W.2d 675, 681). Only “when
the language is ambiguous, unclear, or if confining ourselves to the express
language would produce an absurd result” do we look beyond the express language
of statutes. MGA Ins. Co., v. Goodsell, 2005 S.D. 118, ¶ 17, 707 N.W.2d 483, 487.
[¶19.] “Statutes of specific application take precedence over statutes of
general application.” Kolda v. City of Yankton, 2014 S.D. 60, ¶ 18, 852 N.W.2d 425,
431 (quoting In re Estate of Hamilton, 2012 S.D. 34, ¶ 12, 814 N.W.2d 141, 144).
Additionally, “[w]e are guided by the principle that a court should construe multiple
statutes covering the same subject matter in such a way as to give effect to all of the
statutes if possible.” Schafer v. Deuel Cty. Bd. of Comm’rs, 2006 S.D. 106, ¶ 10,
725 N.W.2d 241, 245.
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[¶20.] In reaching its determination that OA 17-02 was void, the circuit court
relied upon the provisions of SDCL 11-2-18 and -19. SDCL 11-2-18 provides:
The planning commission shall hold at least one public hearing on the respective comprehensive plan, zoning ordinance, or subdivision ordinance. Notice of the time and place of the hearings shall be given once at least ten days in advance by publication in a legal newspaper of the county. Following the public hearing, the planning commission shall submit its recommendation to the board.
(Emphasis added.) SDCL 11-2-19 provides:
After receiving the recommendation of the planning commission the board shall hold at least one public hearing on the respective comprehensive plan, zoning ordinance, or subdivision ordinance. Notice of the time and place of the hearings shall be given once at least ten days in advance by publication in a legal newspaper of the county.
(Emphasis added.) The circuit court noted the plural “hearings” present in both
SDCL 11-2-18 and -19, finding that because both statutes contemplated multiple
hearings, legal notice of each continued hearing date was required by SDCL 11-2-18
and -19. Because there was no legal notice of the continued hearing dates, the
circuit court found OA 17-02 void.
[¶21.] The Board argues that the statutes that specifically govern notice
procedures for zoning ordinance amendments are SDCL 11-2-29 and -30. SDCL 11-
2-29 provides:
The planning commission shall hold at least one public hearing on any proposed change or modification to the plan or ordinances. Notice of the time and place of the hearing shall be given once at least ten days in advance by publication in a legal newspaper of the county. At the public hearing, any person may appear and request or protest the requested change.
(Emphasis added.) SDCL 11-2-30 provides:
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After the hearing, the board shall by resolution or ordinance, as appropriate, either adopt or reject the amendment, supplement, change, modification, or repeal, with or without changes. Consideration of any changes to the proposed amendment, supplement, change, modification, or repeal may only be done if the time and place of the hearing is published at least ten days in advance in a legal newspaper of the county. If adopted, the board shall publish a notice of the fact of adoption once in a legal newspaper of the county and take effect on the twentieth day after publication. The provisions of § 11-2-22 are applicable to this section.
(Emphasis added.) The Board contends that SDCL 11-2-29 and -30 “require only a
single hearing before the Commission and Board on any proposed amendment and
at least ten days’ notice of the hearing published in a legal newspaper of the
county.”
[¶22.] In reply, Citizens cite SDCL 11-2-28, which states, in part, that:
The plan, ordinances, restrictions, and boundaries adopted pursuant to this chapter may be amended, supplemented, changed, modified, or repealed by action of the board. Any such modification or repeal shall be proposed in a resolution or ordinance, as appropriate, presented to the board for adoption in the same manner and upon the same notice as required for the adoption of the original resolution or ordinance.
(Emphasis added.) They argue that because legal notice of “hearings” are required
when enacting a zoning ordinance, the same principle applies to zoning ordinance
amendments and legal notice is required before each continued hearing.
[¶23.] Here, the meaning of the statutes is clear and we need not examine
anything beyond the express language of the statutes. See Goetz, 2001 S.D. 138,
¶ 15, 636 N.W.2d at 681. SDCL 11-2-29 and -30 specifically control notice
procedures for hearings on zoning ordinance amendments. The language of SDCL
11-2-29 plainly requires one “hearing” before the planning commission, for which
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there must be legal notice. SDCL 11-2-30 also mandates legal notice before the one
required “hearing” before a county board. There is no language indicating new
notice is required for “each” or “every” hearing held regarding a zoning ordinance
amendment because the statutes only require one hearing.
[¶24.] However, we must address the fact that SDCL 11-2-28 mandates that
notice requirements must be the same for passing both initial enactments and later
amendments. Interpreting the statutes together to give full effect to their
provisions indicates the reason behind the differing uses of the word “hearing” and
“hearings” present in the cited statutes. Both SDCL 11-2-18 and -19 require “one
public hearing on the respective comprehensive plan, zoning ordinance, or
subdivision ordinance.” (Emphasis added.) “Respective” means “[r]elating to two or
more persons or things regarded individually; particular.” The American Heritage
College Dictionary 1162 (3d ed. 1997). Thus, one hearing is statutorily required in
each of these individual enactments. In this regard, the use of the plural
“hearings” in the notice provisions of SDCL 11-2-18 and -19 suggests a reference to
each of the three types of matters addressed in the statutes; it does not set out a
requirement that legal notice is required before continued hearings. Rather, legal
notice is required before a hearing in each of the matters considered in SDCL 11-2-
18, -19, -29 and -30.
[¶25.] Reading the statutes in this manner fulfills the due process
requirements of SDCL chapter 11-2 by “affording the affected landowners with the
opportunity to formally voice their concerns and present evidence in opposition to
opposed measures; and provide an avenue for expression of public opinion.” Wedel
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v. Beadle Cty. Comm’n, 2016 S.D. 59, ¶ 14, 884 N.W.2d 755, 759 (quoting Schafer,
2006 S.D. 106, ¶ 13, 725 N.W.2d at 246). Interested persons will have full legal
notice of the hearing regarding the zoning ordinance amendment and will be given
the opportunity to attend the hearing and voice their opinion. Because only one
hearing is required by statute before each governmental body, those who do not
attend the advertised hearing risk not having their voices heard.
[¶26.] But, through the County’s practice of publicizing the continued hearing
dates by announcing the continuance, recording the continuance in the meeting
minutes, and posting the agenda 24 hours before the continued hearing, interested
persons will be able to attend the continued hearing to have an even greater
opportunity to voice their concerns. 8 Allowing the Commission and the Board
flexibility to continue hearings without the burden of providing legal notice for each
continued hearing allows for greater public debate over contentious issues such as
OA 17-02. Requiring legal notice for each continued hearing would significantly
extend the amount of time to resolve controversial issues to ensure legal notice is
provided at least ten days before each hearing. As such, officials may feel
disinclined to continue hearings if they had to publish notice of each hearing, which
would have the effect of suppressing the time allotted to the expression of public
opinion.
[¶27.] We conclude the notice provided for the Commission meeting on
December 18 was proper as it was “given once at least ten days in advance by
8. These practices are, in part, required by South Dakota’s open meeting laws set forth in SDCL 1-25-1.1. -14- #28704
publication in a legal newspaper of the county[]” per SDCL 11-2-29. The notice
properly informed citizens of the date and place of the hearing. The circuit court
erred in finding OA 17-02 void for lack of notice on the basis that the continued
Commission hearings were not legally noticed.
[¶28.] However, the notice for the Board hearing on OA 17-02 was
inadequate. The legal notice advertised the Board’s discussion of the amendment
as taking place on January 2, 2018. Yet, the Board did not consider OA 17-02 until
February 6. The Board argues that there was proper legal notice of the February 6
hearing because consent agenda items, although intended to be acted upon quickly
by one vote, may be removed from the agenda by a member of the public for
discussion. This means, according to the Board, that anyone appearing at the
January 2 hearing “could have removed the item from the consent agenda and
provided public comment.” However, the agendas of the January 2 and 16 Board
meetings expressly indicated that consideration of OA 17-02 would be delayed.
Such procedure does not fulfill the notice requirements of SDCL 11-2-30 because
the date of the hearing where the matter was formally considered and given full
opportunity for public comment—February 6—was never advertised in a legal
newspaper.
[¶29.] The Board “may only” consider changes “to the proposed
amendment . . . if the time and place of the hearing is published at least ten days in
advance in a legal newspaper of the county.” Id. Practically speaking, advertising
a date for a hearing and then delaying discussion does not fulfill the requirements
of due process as it becomes increasingly difficult for those interested in the matter
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to determine the date of the hearing at which discussion will occur. Nor does such a
practice comply with the plain language of SDCL 11-2-30 requiring that
consideration “may only” take place after published legal notice of the time and
place of the hearing. Thus, the publications in November and December 2017 failed
to provide the legally required notice of the February 6, 2018 hearing. This failure
to comply with SDCL 11-2-30 renders OA 17-02 void and the circuit court’s ruling is
affirmed.
Conclusion
[¶30.] Citizens have standing to challenge the validity of OA 17-02 and did
not waive their objections to statutory notice requirements. Legal notice was proper
as to the Commission’s consideration of OA 17-02, but insufficient as to the Board.
OA 17-02 is, therefore, void.
[¶31.] JENSEN and SALTER, Justices, and COMER, Circuit Court Judge,
concur.
[¶32.] COMER, Circuit Court Judge, sitting for KERN, Justice, disqualified.
[¶33.] WILBUR, Retired Justice, concurs in part and concurs in result in
part.
WILBUR, Retired Justice (concurring in part and concurring in result in part).
[¶34.] I agree that Citizens have standing. However, on issue 3, I write
specially on why OA 17-02 was invalidly enacted. In my view, it is necessary to
distinguish between actions of the Planning Commission and actions of the Board.
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Indeed, the Legislature enacted separate statutes in setting forth the notice
requirements of boards and commissions within SDCL chapter 11-2.
[¶35.] SDCL 11-2-28 states, in part, that:
The plan, ordinances, restrictions, and boundaries adopted pursuant to this chapter may be amended, supplemented, changed, modified, or repealed by action of the board. Any such modification or repeal shall be proposed in a resolution or ordinance, as appropriate, presented to the board for adoption in the same manner and upon the same notice as required for the adoption of the original resolution or ordinance.
(Emphasis added.) This statute does not apply because the Board did not take
action to amend the ordinance; action commenced with the Planning Commission.
[¶36.] Under SDCL 11-2-29:
The planning commission shall hold at least one public hearing on any proposed change or modification to the plan or ordinances. Notice of the time and place of the hearing shall be given once at least ten days in advance by publication in a legal newspaper of the county. At the public hearing, any person may appear and request or protest the requested change.
(Emphasis added.) Here, the Planning Commission held at least one hearing and
gave notice of the time and place of that hearing; thus, notice was adequate.
[¶37.] After the Planning Commission held its final hearing related to OA 17-
2 and voted to approve it, the proposed amendment was before the Board for
adoption. Under SDCL 11-2-30, the Board was required to “by resolution or
ordinance, as appropriate, either adopt or reject the amendment, supplement,
change, modification, or repeal, with or without changes.” However, if the Board
were to consider “any changes to the proposed amendment,” SDCL 11-2-30 requires
that it “only be done if the time and place of the hearing is published at least ten
days in advance in a legal newspaper of the county.” Because, here, the Board
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changed the proposed amendment without giving notice prior to considering the
changes, I agree with the conference opinion that “[l]egal notice was proper as to
the Commission’s consideration of OA 17-02, but insufficient as to the Board.”
-18-