McLAEN v. WHITE TOWNSHIP

974 N.W.2d 714, 2022 S.D. 26

• Court: South Dakota Supreme Court
• Decided: May 11, 2022
• Docket: 29599, 29600
• Status: Published

Opinion

#29599, #29600-a-PJD 2022 S.D. 26

IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA

****

STEVEN D. McLAEN AND MATTHEW McLAEN, Appellants,

v.

WHITE TOWNSHIP, a public corporation in Marshall County, South Dakota; DuWAYNE BOSSE, DOUG CHAPIN, and BRYAN HAWKINSON, in their capacities as members of the White Township Board of Supervisors, Appellees. ****

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT MARSHALL COUNTY, SOUTH DAKOTA

THE HONORABLE RICHARD A. SOMMERS Judge

ALEX T. MASTELLAR JAYNE E. ESCH of Rinke Noonan, LTD St. Cloud, Minnesota Attorneys for appellants.

ZACHARY W. PETERSON JOSHUA K. FINER of Richardson, Wyly, Wise Sauck & Hieb, LLP Aberdeen, South Dakota Attorneys for appellees.

CONSIDERED ON BRIEFS OCTOBER 4, 2021 OPINION FILED 05/11/22 #29599 #29600

DEVANEY, Justice

[¶1.] Steven and Matthew McLaen obtained a drainage permit from the

Marshall County Drainage Board. Thereafter, they sought approval of their project

from the White Township Board of Supervisors because their drainage project could

impact roads or rights-of-way in the Township. Ultimately, the Township denied

the McLaens’ request, and the McLaens filed an administrative appeal and a

separate declaratory action, both of which challenged the Township’s authority to

regulate their drainage project and the merits of the Township’s decision. The

circuit court issued one memorandum decision addressing both actions and

upholding the Township’s decision. The McLaens filed a separate appeal in each

action, asserting multiple issues related to the Township’s denial of their requested

project. We consolidate the appeals and affirm.

Factual and Procedural Background

[¶2.] Steven McLaen owns agricultural property in White Township within

Marshall County, South Dakota. He farms the property with his son Matthew

McLaen. In 2014, the McLaens requested a drainage permit from the Marshall

County Drainage Board for a drainage project in portions of Sections 16, 22, and 23

within White Township. The permit application is not in the record, but Steven

related in an affidavit that the project would drain into a portion of the right-of-way

along 103rd Street, a Township road, and would require the installation of culverts

under the Township’s roads. The County granted the permit “contingent on the

applicant acquiring signed approval from the township for the drainage to run

through a township ditch.”

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[¶3.] According to Steven, the standard practice in White Township when

seeking approval for engaging in drainage projects that involve road crossings,

draining in ditches, and lift stations, was to have an in-person or telephone

conversation with a supervisor on the White Township Board of Supervisors.

Steven claimed that he followed this practice in 2015 and discussed the drainage

project with David Seibel, who at the time was a supervisor on the board. In an

affidavit, Steven alleged that Seibel gave him verbal permission to make road

crossings and install culverts as part of the drainage project. In an affidavit, Seibel

confirmed that he had this 2015 discussion with Steven. Seibel further indicated he

“had no problem with the drainage project and informed [Steven] of that.” Seibel

also related that he mentioned the McLaens’ drainage project to the Township

Board of Supervisors at its March 2016 annual meeting and that he did “not recall

any opposition or other discussion.”

[¶4.] From 2015 to July 2019, the McLaens performed some work on the

drainage project. However, it is not clear from the record exactly what work has

been done. It is undisputed that the McLaens experienced delays on the project due

to their attempt to obtain a certified wetlands determination to ensure their project

would not impact wetlands, and they did not begin the drain tile and lift station

portions of the project until late July 2019. Steven claimed that when they began

these portions of the project, the Marshall County drainage administrator informed

him that the Township was concerned about what the McLaens were doing. The

McLaens ceased work on their project, and on August 2, 2019, Matthew attended a

meeting with the Township Board to discuss the intended project. He informed the

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supervisors that both the County and the Township had previously approved the

project. Then, using a large Township map, Matthew explained how the proposed

project would drain water into a Township right-of-way and where culverts would

be installed under Township roads.

[¶5.] Seibel was no longer a supervisor on the Township Board because he

was replaced by DuWayne Bosse after the 2016 annual meeting. None of the

current supervisors (Bosse, Douglas Chapin, and Bryan Hawkinson) recalled

approving the McLaens’ project in the past and informed Matthew of their concern

that it had not in fact been approved by the Township. They asked Matthew to

provide the documents reflecting the project’s approval. Around August 7, Steven

provided the supervisors certain documents related to the project; however, those

documents are not in the record. The supervisors testified in their depositions that

the documents included the McLaens’ application to Marshall County for a drainage

permit, an estimate for the project, a site map of the tiling grid, some letters, and

waivers from landowners.

[¶6.] The supervisors met again to discuss the McLaens’ project at a special

meeting on August 17, 2019, at Bosse’s place of business, Bolt Marketing. Twenty-

four hours prior to the meeting, Bosse posted notice of the meeting on the front door

of Bolt Marketing. Bosse could not recall telling the McLaens about the August 17

meeting, and it is undisputed that the McLaens did not have knowledge of the

meeting prior to it occurring.

[¶7.] Bosse testified that during the meeting, the supervisors discussed the

project as proposed by the McLaens. Bosse and Chapin testified that they were

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under the impression from Matthew that the McLaens’ project involved

manipulating the ditch on the south side of 103rd Street such that the depth of the

ditch would be deeper. This concerned Bosse because it “would cause a larger slope

to the ditch and [could] possibly [be] harmful for a car, if a car would drive in it.”

Bosse was also concerned that the McLaens’ proposal would change the natural flow

of the water in the ditch and that there was not, in his view, a guarantee that the

water would flow all the way to Wild Rice Creek. He explained that based on his

experience it would hurt the roadbed to have water sitting in the right-of-way

because when water sits next to a road, it could permeate through and cause the

road to become soft. Chapin and Hawkinson testified in their depositions to having

similar concerns.

[¶8.] The August 17 meeting minutes reflect that the supervisors passed a

motion “to allow the drainage proposal” under six conditions, as follows:

1. A solid pipe would be used to run water from section 16 all the way to the Wild Rice Crick [sic] in section 23. The pipe would run on the south side of the road along 103rd St. 2. No manipulation will be done in any township right-of- way to allow surface drainage. 3. New easements/waivers will need to be obtained from landowners on the north side of section 22. 4. Due to past approval expiration several years ago, the entire drainage project needs to be reapproved by the Marshall county drainage board. 5. If any township roads are cut/dug to lay a pipe underground, Matt McLaen will be responsible for any and all repairs at the specific spot of the cut for the next 5 years. 6. We would strongly suggest Matt get approval from the Wild Rice Watershed board.

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[¶9.] Bosse testified that a day or two after the August 17 meeting, he gave

Matthew the meeting minutes when Matthew stopped by his office. Bosse further

testified that a copy of the minutes was given to the Marshall County Drainage

Board. He also claimed that he had two or three phone calls with Steven to discuss

the project and the Township’s conditions. According to Bosse, during these

conversations, Steven did not agree with having to install a pipe in the right-of-way

and threatened to file a lawsuit against the Township.

[¶10.] On September 21, 2019, the Township Board held a special meeting at

which they passed a motion to hire an attorney to represent the Township in any

legal actions brought by the McLaens. Similar to the August 17, 2019 meeting, the

Township posted notice of this meeting 24 hours prior to it occurring by attaching a

paper notice on the door of Bolt Marketing. The McLaens were unaware of the

Township meeting. The minutes of the meeting reflect that the Township voted to

hire Attorney Jay Leibel. The supervisors met again on September 23, 2019, and

immediately went into executive session to discuss the lawsuit the McLaens were

threatening to bring. The minutes reflect that the supervisors discussed their

concerns about the McLaens’ project but no official action was taken at that

meeting.

[¶11.] Although the McLaens had a permit for the drainage project from

Marshall County, they sought reapproval of that permit from the County, consistent

with one of the conditions set by the Township. Their request was considered at the

September 24, 2019 Marshall County Drainage Board meeting. The Township

supervisors, Attorney Leibel, Steven and Matthew McLaen, and the McLaens’

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attorney attended this meeting. The meeting minutes reflect that the County

Drainage Board considered a report by a County administrative official about the

drainage project along with a letter from one of the McLaens’ neighbors

disapproving of the project. Neither the report nor the letter is in the record, and

there is no transcript of the County Drainage Board meeting.

[¶12.] The meeting minutes reflect that during the meeting, counsel for both

the Township and the McLaens spoke about the project. At one point, counsel for

the Township indicated “that the township isn’t necessarily against the drainage

but would like to verify the natural drainage via topographical maps that [were]

requested[.]” Counsel “asked for a continuance until those can be obtained and

reviewed.” Thereafter, Bosse expressed concern that the McLaens’ project would

block or remove culverts in Township roads. A County Drainage Board member

indicated that the McLaens and the Township “would have to work together to

reach an agreement” because “[t]hat is separate from County approval as the

County does not have authority over Township roads.” Ultimately, the meeting

minutes reflect that the County voted to approve a modification to the permit issued

by the Board in 2014, namely that the 2014 permit be reapproved contingent on the

McLaens “following all applicable laws.”

[¶13.] After the County Drainage Board meeting, Steven requested a meeting

with the Township Board to, as he claimed, “address any concerns and to coordinate

the road crossings as identified in the drainage permit.” He called and personally

texted the supervisors. However, no meeting was held. Steven related that on

November 1, 2019, he sent a certified letter to each Township supervisor requesting

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a formal meeting to discuss the project. The letter is not in the record; however, the

supervisors confirmed in their deposition testimony that they received a certified

letter from Steven.

[¶14.] On November 25, 2019, the Township Board held a special meeting

and immediately moved to go into executive session to discuss the legal matter

involving the McLaens. Notice of the meeting was posted 24 hours prior on the door

of Bolt Marketing. The McLaens were not aware of the meeting. According to

Bosse, the supervisors decided at the meeting to have Attorney Leibel send a letter

to the McLaens’ attorney relating the Township’s reasons for denying the McLaens’

proposal.

[¶15.] Attorney Leibel drafted the letter, and after the Township supervisors

approved its content, he mailed it to counsel for the McLaens. The letter is dated

January 31, 2020, and Steven received the letter on February 3, 2020. The letter

informed the McLaens that the Township Board of Supervisors met on November

25 and directed the attorney to issue a letter “reiterating the township is not going

to authorize [the McLaens] to use a pump to discharge water into the right-of-way

primarily along 103rd Street from real property located in the east corner of the

Southwest Quarter of Section 16, White Township, nor is the township authorizing

any new culverts or cuts in any White Township roads at this time.” The letter

further stated that the primary reason for the denial was because the McLaens’

proposal would change the natural flow of the water. However, the letter indicated

that “the Township would consider authorization of a pipeline in the right-of-way of

103rd Street under the following conditions”:

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1. Only a pipe is used to convey the water. 2. The slope of the ditch is not altered. 3. The township would still be able to do any maintenance required. 4. All affected landowners must agree in writing to the installation of the pipe whether above or below ground. 5. You and your successors in interest be responsible for the maintenance and operation of pipe. You agree to hold harmless and indemnify the township of any and all damages caused by operation of the pump and use of the pipeline.

[¶16.] According to Steven, receipt of this letter “was the first time [he] was

informed that White Township had a meeting and had ‘denied’ [the] already-

installed drainage project.” On February 19, 2020, the McLaens filed an

administrative appeal under SDCL 8-5-8 challenging the Township Board’s decision

denying authorization of their project. On the same day, they also filed a separate

declaratory judgment action seeking an order declaring that they did not need

White Township’s permission to drain water along the Township road right-of-way

or to cross Township roads as proposed in their Marshall County drainage permit.

[¶17.] The Township filed a motion to dismiss the administrative appeal as

untimely. SDCL 8-5-8 requires that persons aggrieved by a township’s decision

serve written notice of appeal within 20 days after the decision is published or after

receiving actual notice. The Township alleged that it had made its decision denying

the McLaens’ request at its August 17, 2019 meeting and that the McLaens had

actual notice of the decision, at the very latest, on September 24, 2019, because that

decision was discussed at the Marshall County Drainage Board meeting. In

response, the McLaens claimed that they were not appealing the Township’s alleged

decision on August 17, 2019; rather, they were appealing the decision made by the

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Township on November 25, 2019 and received by the McLaens on February 3, 2020.

They further asserted that even if the Township’s August 17 minutes constituted a

decision, the Township did not inform the McLaens of this decision at the

September 24 County Drainage Board meeting. The circuit court denied the motion

to dismiss after accepting as true all facts as pled by the McLaens in their notice of

appeal. The court concluded that the Township made its decision on November 25,

2019, and that the McLaens timely appealed that decision within 20 days of

receiving notice on February 3, 2020.

[¶18.] After conducting discovery, the McLaens filed identical motions for

summary judgment in the administrative appeal and declaratory judgment actions.

They asserted that “[t]he material facts surrounding White Township’s decision and

the actions of the parties are not in dispute.” They requested that the court

determine that the Township was without authority to make the decision as

expressed in Attorney Leibel’s January 31, 2020 letter. As it pertains to the

administrative appeal, the McLaens asserted that de novo review applies; however,

they alternatively claimed that even if the Township’s decision was reviewed for an

abuse of discretion, the decision was arbitrary and capricious because it was not

made based on any fixed rules or standards. The McLaens further asserted that the

Township’s denial of their project was “without effect” because the Township had

previously approved the project in 2015 after the McLaens followed the standard

practice in the Township of obtaining approval from a supervisor. Finally, they

claimed that the Township should be estopped from rescinding its prior approval

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because, in their view, they reasonably relied on the 2015 approval to their

detriment.

[¶19.] The Township filed separate cross-motions for summary judgment in

each file and responses to the McLaens’ motion. In the administrative appeal, the

Township re-alleged its claim that the McLaens’ appeal was untimely. It directed

the circuit court to new record evidence evincing that the McLaens had actual notice

of the Township’s August 17, 2019 decision as early as a couple days after the

August 17 meeting and as late as the County Drainage Board meeting on

September 24, 2019. Alternatively, the Township alleged that if the appeal was

deemed timely, summary judgment was nevertheless proper because the Township

“considered several appropriate factors in determining that the McLaens’ proposal

was unacceptable and articulated the reasons for its concerns.” Finally, the

Township disagreed that it previously gave the McLaens permission via Steven’s

discussion of the project with Seibel in 2015 and, thus, claimed estoppel did not

apply.

[¶20.] The circuit court held one hearing on the motions and thereafter issued

one memorandum decision dismissing both the administrative appeal and

declaratory judgment action. The court concluded that the Township did not

previously approve the project via Seibel’s conversation with Steven. It also

concluded that the McLaens’ appeal of the Township’s decision was untimely

because the Township had made the decision to deny the project on August 17 and

the McLaens had notice of the denial in September 2019. Alternatively, the circuit

court determined that “the record does not contain anything that would indicate to

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[the court] that the township is being arbitrary in not going along with this project.”

The court granted the Township’s motions for summary judgment and denied the

McLaens’. The circuit court issued a separate order in each action incorporating its

memorandum decision.

[¶21.] The McLaens assert multiple overlapping issues in their separate

appeals. The issues are restated as follows.

1. Whether the McLaens’ appeal is timely.

2. Whether the Township can prospectively regulate the McLaens’ project.

3. Whether estoppel applies.

4. Whether the circuit court erred in granting summary judgment upholding the Township’s decision.

Analysis and Decision

[¶22.] The McLaens contend that the circuit court erred in concluding that

the Township made its decision on August 17, 2019, and further erred in concluding

that they had notice of the decision in September 2019. The McLaens note that

rather than denying their proposed project, the August 17, 2019 minutes state that

the Township would approve their proposed project upon certain conditions—

conditions that were then forwarded to the Marshall County Drainage Board for

consideration in determining whether to reapprove the McLaens’ drainage permit.

The McLaens maintain that Attorney Leibel’s January 31, 2020 letter constitutes

the first formal denial of their proposal to the Township. They also assert that the

August 17, 2019 meeting minutes cannot be the decision from which they were

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required to appeal because the McLaens specifically appealed the January 2020

letter, not the August 2019 meeting minutes, and the conditions stated in the

meeting minutes are different than those in Attorney Leibel’s January 31, 2020

letter.

[¶23.] In response, the Township asserts that the McLaens had actual notice

in August 2019 of the denial of their proposal to insert culverts into Township roads

and drain water into a Township road ditch. The Township directs this Court to

Bosse’s deposition testimony wherein he stated that he informed the McLaens of the

Township’s decision shortly after the August 2, 2019 meeting with Matthew. The

Township alternatively asserts that the McLaens had notice of the Township’s

August 17, 2019 decision at the County Drainage Board meeting on September 24,

2019. Finally, it asserts that although the conditions in the January 31, 2020 letter

differ from those in the August 17, 2019 meeting minutes, the letter does not reflect

a new decision from which the McLaens can appeal because it is clear that the

Township had made its decision to deny the McLaens’ project, as proposed, on

August 17.

[¶24.] “In administrative appeals, a circuit court’s appellate jurisdiction

depends on compliance with statutory conditions precedent. A failure to comply

with such conditions precedent deprives the circuit court of appellate jurisdiction.”

AEG Processing Ctr. No. 58, Inc. v. S.D. Dep’t of Revenue and Regul., 2013 S.D. 75,

¶ 8, 838 N.W.2d 843, 847 (internal citation omitted). SDCL 8-5-8 provides that an

aggrieved person is “allowed an appeal” from “all decisions, orders, and resolutions

of the boards of supervisors of townships,” so long as notice of appeal is “taken

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within twenty days after the publication of the decision, order, or resolution of the

board” or “in those cases where there is no publication, then within twenty days

from the time of receiving actual notice thereof[.]” 1 (Emphasis added.) We review

de novo whether the circuit court had appellate jurisdiction to consider the

McLaens’ challenge to the Township’s decision. See Hyde v. Sully Cnty. Bd. of

Adjustment, 2016 S.D. 65, ¶ 5, 886 N.W.2d 355, 357.

[¶25.] While the Township maintains that it had made its decision related to

the McLaens’ project at the August 17 meeting, the minutes from the September 24,

2019 Marshall County Drainage Board meeting reflect that the McLaens’ proposal

to the Township was still a matter up for negotiation. At one point in the meeting,

Attorney Leibel indicated that the Township was not against the McLaens’ drainage

project, and he suggested a continuance to consider additional topographical

information that had been requested. Also during the meeting, a County drainage

board member indicated that the Township and the McLaens “would have to work

together to reach an agreement.” Then following the County Drainage Board

meeting, Steven reached out to the supervisors to discuss the Township’s concerns

1. The timeframe within which an administrative appeal must be brought would also apply to McLaens’ declaratory judgment action. In City of Aberdeen v. Rich, this Court looked at the underlying cause of action and the relief sought to determine the applicable limitation period for bringing a declaratory judgment action challenging land transactions. 2001 S.D. 55, 625 N.W.2d 582. Because, here, the McLaens’ declaratory judgment action seeks to undo the Township’s decision, SDCL 8-5-8 provides the relevant statute of limitations. See 26 CJS Declaratory Judgments § 120 (providing that “[g]enerally, the period of limitation applicable to the underlying action at law or suit in equity should be applied to an action for declaratory relief”).

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and the McLaens’ project. Although no meeting was held, one supervisor’s

communication with Steven suggested that a meeting might occur.

[¶26.] Notably, the supervisors testified in their depositions that rather than

indicate to Steven that the Township had made its decision, leaving nothing left to

discuss, they instead ignored his requests for a meeting. The record also indicates

that the supervisors exchanged multiple text messages with Steven related to the

McLaens’ project after the September 24 County Drainage Board meeting. The text

messages are not in the record, but each of the supervisors testified about the

contents of the messages during their deposition testimony, and these messages

suggested, particularly to Steven, that approval of the McLaens’ project by the

Township after the County Drainage Board meeting was an open issue.

[¶27.] It is also relevant to consider the informal manner in which the

Township made its decision here. The Township Board has no set procedures for

persons to have matters related to Township roads considered by the Board.

Rather, the record reveals that persons can approach any supervisor and request a

meeting to discuss an issue, and, as explained by Bosse, the supervisors will

schedule the meeting at a time that works for the person requesting consideration

of the matter. It also appears that for special meetings, the supervisors only

provide notice of the meeting by posting a piece of paper 24 hours prior to the

meeting on the door of the building in which they plan to meet. And, here, the

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supervisors did not inform the McLaens of these special meetings even though they

concerned the McLaens’ project. 2

[¶28.] The circuit court erred in determining that the McLaens’ appeal was

untimely. The record indicates that the Township’s final action denying the

McLaens’ proposed project occurred on November 25, 2019, when the Township met

and decided to have Attorney Leibel send a letter to counsel for McLaens stating the

Township’s position. The McLaens received notice of this decision on February 3,

2020, and then timely served notice of their appeal within 20 days.

2. Whether the Township can prospectively regulate the McLaens’ project.

[¶29.] The McLaens rely upon the language in SDCL 46A-10A-70 and -71

referring to “official controls” in arguing that because “White Township has not

adopted any official controls for installing drainage along, within, or across its

roads[,]” “the Township does not have prospective authority to limit aspects of the

McLaens’ drainage project involving road crossing[s].” In response, the Township

contends that the McLaens are misconstruing these statutes because they relate to

“official controls” adopted pursuant to SDCL chapter 46A-10A, the chapter

governing county drainage, and Townships do not regulate drainage in South

Dakota. It further contends that SDCL 46A-10A-70 codifies the “civil law rule”

requiring the consent of the board charged with supervisory authority over a public

2. The McLaens do not specifically challenge the Township’s failure to properly notice the August 17, 2019 meeting or any other Township meetings related to their request. However, they reference the lack of proper notice by the Township to support their argument that the Township’s decision was arbitrary and capricious; therefore, this argument is addressed under that issue.

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highway in order to drain water to such highway, and therefore, in the Township’s

view, it has authority to deny the McLaens’ request to install culverts under

Township roads and drain to a Township right-of-way.

[¶30.] “Statutory interpretation presents a question of law reviewable de

novo.” Zoss v. Schaefers, 1999 S.D. 105, ¶ 6, 598 N.W.2d 550, 552 (citation omitted).

Under SDCL 46A-10A-70,

Subject to any official controls pursuant to this chapter and chapter 46A-11, owners of land may drain the land in the general course of natural drainage by constructing open or covered drains and discharging the water into any natural watercourse, into any established watercourse, or into any natural depression whereby the water will be carried into a natural watercourse, into an established watercourse, or into a drain on a public highway, conditioned on consent of the board having supervision of the highway.

(Emphasis added.) SDCL 46A-10A-71 provides that “[s]ubject to any official

controls pursuant to this chapter and chapter 46A-11, drains may be laid along,

within the limits of, or across any public highway.” An “official control” is defined

as “any ordinance, order, regulation, map, or procedure adopted by a board to

regulate drainage[.]” SDCL 46A-10A-1(16) (emphasis added).

[¶31.] It is undisputed that counties, not townships, regulate drainage.

Therefore, it is questionable whether these statutes apply to a review of a

township’s decision to approve or deny a drainage project involving township

roadways. Even if the statutes apply to such decisions, nothing in SDCL 46A-10A-

70 and -71 restricts a township’s authority to regulate the aspects of a project that

could impact its roads and rights-of-way. Rather, the “official controls” phrase in

SDCL 46A-10A-70 and -71 refers to the ordinances and regulations adopted by

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entities (e.g., counties) authorized by statute to regulate drainage. Also, neither

statute gives a landowner the right to drain into a public highway. The statutes

speak to what may be done with respect to public highways if the board having

supervision of the highway gives consent.

[¶32.] As it relates to the Township roads and rights-of-way at issue, this

Court has previously explained that “the Legislature has required townships [to]

‘act as trustees in guarding section line rights-of-way for free public access’” and

“that Townships have ‘a duty to maintain township roads’ in order to prevent

accidents and ensure the safety of travelers[.]” Johnson v. Marion Twp., 2002 S.D.

35, ¶ 12, 642 N.W.2d 183, 185–86 (citation omitted); see also SDCL 31-13-1 (“[t]he

board of township supervisors shall construct, repair, and maintain all of the

township roads within the township”). Therefore, the circuit court properly

determined that the Township can regulate the aspects of the McLaens’ project that

would impact Township roads and rights-of-way.

[¶33.] The McLaens assert that there is no dispute that the Township has

historically used an informal process for considering drainage projects that may

impact Township roads and rights-of-way. They further claim that there is no

dispute that Steven followed the Township’s established practice and obtained

approval from Seibel in 2015 to install culverts under Township roads and drain to

the Township right-of-way. Steven further claims that he reasonably relied on

Seibel’s approval to his detriment because the McLaens would not have undertaken

substantial work on the project had Seibel not approved it. The McLaens therefore

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contend that the Township should be estopped from preventing them from

completing their drainage project.

[¶34.] The circuit court did not expressly rule on the McLaens’ estoppel claim.

However, the circuit court granted the Township’s motion for summary judgment

and thereby effectively ruled against the McLaens on this contention. We review de

novo whether summary judgment was proper in that regard. See Smith Angus

Ranch, Inc. v. Hurst, 2021 S.D. 40, ¶ 13, 962 N.W.2d 626, 629.

[¶35.] “We have applied estoppel against public entities in exceptional

circumstances to prevent manifest injustice.” Even v. City of Parker, 1999 S.D. 72,

¶ 11, 597 N.W.2d 670, 674 (internal quotation marks omitted) (quoting Smith v.

Neville, 539 N.W.2d 679, 682 (S.D. 1995)). “However, we do not favor estoppel

against a public entity and will apply it only in extreme cases.” Id. In cases

involving municipalities, we have held that in order for estoppel to apply, “[m]ore

than municipal acquiescence . . . should be required”; a municipal officer must “have

taken some affirmative action influencing another which renders it inequitable for

the municipality to assert a different set of facts.” Id. ¶ 12, 597 N.W.2d at 674

(citation omitted). In addition, “[t]he conduct must have induced the other party to

alter his position or do that which he would not otherwise have done to his

prejudice.” Id. (citation omitted).

[¶36.] The McLaens, as the party seeking to rely on estoppel, have “the

burden of establishing the existence of the necessary exceptional circumstances.”

See Rios v. S.D. Dep’t of Soc. Servs., 420 N.W.2d 757, 760 (S.D. 1988). Here, the

record does not evince exceptional circumstances or that the McLaens had an

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objectively reasonable basis to believe that permission sufficient to undertake the

drainage project had been given by the Township in 2015. The McLaens’ 2014

permit from Marshall County was specifically conditioned on the McLaens

obtaining signed approval from the Township, and it is undisputed that the

McLaens did not obtain such approval from the Township prior to starting the

drainage project.

[¶37.] Also, while the McLaens respond that the Township’s March 2016

meeting minutes are sufficient to constitute signed approval, those minutes do not

reflect that any official decision was made regarding the McLaens’ drainage project.

The March 2016 minutes, in handwritten form, provide:

Road Maintenance Old issue - Steven McLaen called - Culverts full of mud north of Rogers - Wild Rice Board - There is tile across north of church – some culverts

Even if these notes are in fact referring to the McLaens’ proposed drainage project,

the minutes do not indicate that a motion to approve the project was made or

approved or that any action was taken by the Township related to the McLaens’

project. The absence of such a motion is noteworthy because these same minutes

reflect official actions by the Township on other matters presented at this meeting.

Because the undisputed facts do not support that the McLaens had a reasonable

basis to believe they had signed approval from the Township, their estoppel claim is

without merit.

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4. Whether the circuit court erred in granting summary judgment upholding the Township’s decision.

[¶38.] The McLaens contend that the court erred in granting summary

judgment because, in their view, the court improperly engaged in fact finding. They

point to questions the court asked counsel during the summary judgment hearing

and to the court’s characterization of documentary evidence in its memorandum

decision.

[¶39.] A review of the hearing transcript and the court’s memorandum

decision does not reflect that the circuit court weighed disputed evidence or engaged

in fact finding. See Hamilton v. Sommers, 2014 S.D. 76, ¶ 42, 855 N.W.2d 855, 868

(explaining that on summary judgment, the court’s role “is not to weigh the

evidence and determine the matters’ truth”). Rather, it appears the circuit court

incorrectly identified the dates of certain events when it examined whether the

McLaens timely commenced their appeal or whether estoppel applies. However,

this Court is in the same position as the circuit court when reviewing documentary

evidence to determine the relevant dates upon which events happened. We can also

determine what occurred at meetings based on the record evidence and what was

being conveyed in other documentary evidence (e.g., the Township’s March 2016

and August 2019 meeting minutes and Attorney Leibel’s January 2020 letter). As

with any summary judgment ruling, we review de novo whether summary judgment

was proper. Harvey v. Reg’l Health Network, Inc., 2018 S.D. 3, ¶ 26, 906 N.W.2d

382, 390 (stating the standard of review on summary judgment).

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[¶40.] Although de novo review applies to our review of the underlying record

and the circuit court’s summary judgment decision, this appeal further implicates a

review of an administrative body’s decision. In regard to the appropriate standard

of review of the Township’s decision, the McLaens contend that a de novo standard

of review applies because without any underlying rules or standards governing the

Township’s decision-making process, the Township’s decision was quasi-judicial and

should not be afforded any deference on review. The Township counters that the

abuse of discretion standard of review applies as explained in South Dakota

Department of Game, Fish and Parks v. Troy Township, 2017 S.D. 50, 900 N.W.2d

840, and Carmody v. Lake County Board of Commissioners, 2020 S.D. 3, 938

N.W.2d 433, because the Township’s decision to disallow the installation of new

culverts under Township roads and disallow drainage into a Township right-of-way

involves “exercising discretion over a matter of policy, rather than serving a role as

an adjudicatory body.”

[¶41.] Under SDCL 8-5-10, appeals from a decision of a township board of

supervisors “shall be heard and determined de novo.” (Emphasis added.) However,

this Court clarified in Troy Township that the judiciary’s authority to review an

administrative body’s decision de novo depends on whether the action was quasi-

judicial or non-quasi-judicial. 2017 S.D. 50, ¶ 24, 900 N.W.2d at 850. This is

because “[u]nder the separation-of-powers doctrine, a court may not ‘exercise or

participate in the exercise of functions which are essentially legislative or

administrative.’” Troy Twp., 2017 S.D. 50, ¶ 14, 900 N.W.2d at 846. However, “if

the action appealed is quasi-judicial, then the separation-of-powers doctrine is not

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offended by a de novo hearing on appeal[.]” Id. ¶ 20, 900 N.W.2d at 849. Quasi-

judicial actions are “akin to ‘the ordinary business of courts’ or are actions that

‘could have been determined as an original action in circuit court.’” Carmody, 2020

S.D. 3, ¶ 16, 938 N.W.2d at 438 (quoting Troy Twp., 2017 S.D. 50, ¶ 21, 900 N.W.2d

at 849).

[¶42.] The Township’s decision in response to the McLaens’ request to install

culverts under Township roads and drain into a Township right-of-way was

administrative in nature. The decision did not involve adjudicating existing rights

between specific individuals, and the McLaens could not have asked the circuit

court in the first instance to approve their request. Because the Township’s

decision was one of policy, the circuit court properly applied the abuse of discretion

standard of review. See Troy Twp., 2017 S.D. 50, ¶ 22, 900 N.W.2d at 849–50.

[¶43.] On appeal, this Court likewise reviews the Township’s decision for an

abuse of discretion. See Surat v. Am. Twp. Bd. of Supervisors, 2017 S.D. 69, ¶ 16,

904 N.W.2d 61, 67. Abuse of discretion review “is limited to determining whether

the administrative board ‘has acted unreasonably, arbitrarily, or has manifestly

abused its discretion[.]’” Troy Twp., 2017 S.D. 50, ¶ 17, 900 N.W.2d at 848 (quoting

Dunker v. Brown Cnty. Bd. of Ed., 80 S.D. 193, 203, 121 N.W.2d 10, 17 (1963)). This

standard is narrow; thus, “a court is not to substitute its judgment for that of an

agency.” Id. ¶ 33, 900 N.W.2d at 852–53.

[¶44.] The McLaens assert that because the Township has in the past

approved drainage projects informally and continues to do so since denying the

McLaens’ request, the Township’s dissimilar treatment of them “is the epitome of

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an arbitrary and capricious act.” Even if this factual claim regarding the

Township’s informal practices is true, the Township’s actions and decisions related

to other alleged projects occurring before or after it denied the McLaens’ request are

immaterial to this Court’s review, which is confined to the evidence before the

Township at the time it made its decision in November 2019.

[¶45.] The McLaens further assert that the Township’s decision was arbitrary

and capricious because the decision was not governed by any fixed rules or

standards. This contention similarly fails. Although the Township has not adopted

rules or enacted ordinances governing the process by which it grants or denies

requests to install culverts in Township roads or drain water into a Township right-

of-way, this alone does not automatically mean that the Township acted arbitrarily

in denying the McLaens’ request. As this Court has recognized, “[n]o standards for

township road repair and maintenance exist in our laws”; therefore, “[d]etails for

repairing and maintaining secondary roads . . . remain within the conscientious

discretion of the board of supervisors.” Willoughby v. Grim, 1998 S.D. 68, ¶ 10, 581

N.W.2d 165, 168–69.

[¶46.] Nevertheless, the Township “must examine the relevant data and

articulate a satisfactory explanation for its action including a ‘rational connection

between the facts found and the choice made.’” See Troy Twp., 2017 S.D. 50, ¶ 33,

900 N.W.2d at 853 (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm

Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S. Ct. 2856, 2866, 77 L. Ed. 2d 443 (1983)).

On review, a decision is arbitrary “if the [township] has relied on factors which [the

Legislature] has not intended it to consider, entirely failed to consider an important

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aspect of the problem, offered an explanation for its decision that runs counter to

the evidence before the [township], or is so implausible that it could not be ascribed

to a difference in view or the product of . . . expertise.” Id. (citation omitted) (second

alteration in original). Importantly, as the parties challenging the Township’s

decision, the McLaens have the burden of proving that an abuse of discretion

occurred. See Carmody, 2020 S.D. 3, ¶ 29, 938 N.W.2d at 442.

[¶47.] The McLaens contend that the Township acted arbitrarily because its

“purported considerations and conditions that it attempted to impose on the

McLaens’ project lack factual and legal merit.” They assert there is no factual merit

because the supervisors’ individual considerations in denying the McLaens’ request

were “not based on anything other than their unilateral opinions.” They further

contend the Township’s denial lacks legal merit because the Township took into

consideration matters that are not within its authority to control, e.g., how the

drainage project will impact the capacity of Wild Rice Creek or how it will impact

neighboring landowners’ property.

[¶48.] A review of the record, including the supervisors’ deposition testimony

and both the August 2019 meeting minutes and Attorney Leibel’s January 2020

letter, reflects that the Township improperly considered the project’s impact on

Wild Rice Creek and how the project might impact neighboring landowners. These

matters are not within the Township’s authority to regulate. However, the

Township did not deny the McLaens’ request on these factors alone. Rather, the

Township specifically considered how aspects of the McLaens’ project would impact

Township roads and rights-of-way. In this regard, the McLaens have not shown

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that the Township’s concerns were arbitrary or capricious or that the Township’s

decision runs counter to the evidence the Township had before it.

[¶49.] On appeal, the McLaens dispute the accuracy of the Township’s

concerns about the impact of their project by directing this Court to new evidence

that was not before the Township at the time it made its decision. For example,

they claim that the Township’s concern that the ditch to 103rd Street would be

manipulated was “inaccurate” and “is irrelevant now” because the McLaens never

intended to dig the ditch deeper and in December 2020 someone else cleaned out the

ditch in essentially the same manner that was proposed by the McLaens.

Regardless of the veracity of this new information, it was not known to the

Township at the time it made its decision. When the supervisors made their

decision based on the information provided to them by the McLaens, they were

under the impression that the ditch would be manipulated, and the McLaens do not

point to evidence in the record existing at the time of this decision supporting their

contention that the supervisors’ concern was without an accurate basis. Further,

the supervisors, as lifelong residents of White Township with personal knowledge of

the condition of the roads and right-of-way at issue, are in a position to make the

types of assessments made here related to the Township’s roads and rights-of-way.

See Troy Twp., 2017 S.D. 50, ¶ 40, 900 N.W.2d at 855 (observing that the board

members have first-hand knowledge of the highways). The reasons expressed by

the supervisors to support their denial of the project were not implausible, nor were

they refuted by uncontroverted evidence in the record. The fact that their views

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differed from the McLaens’ does not mean that their decision was arbitrary or

capricious.

[¶50.] However, the McLeans also assert that the Township’s decision was

arbitrary and capricious because it was made without affording them adequate

procedural due process. They contend that the Township failed to properly give

notice under SDCL chapter 8-3 of the August 17, 2019 meeting and the additional

meetings thereafter. Under SDCL 8-3-1, “[n]otice of the time and place of such

township meeting shall be given by the publication thereof for three consecutive

days in a daily, or for two consecutive weeks in a weekly newspaper of general

circulation in the township beginning not less than twelve calendar days prior to

such meeting.” (Emphasis added.) This same notice requirement applies to special

meetings. SDCL 8-3-4 (requiring that notice of a special meeting be in the same

manner as required for notice of an annual township meeting). It is undisputed

that notice was not given three days prior to any of the special meetings held

related to the McLaens’ project. Also, the McLaens did not have actual notice of any

of these meetings. Bosse testified that the supervisors never told the McLaens

about the meetings, including the August 17, 2019 meeting. Instead, Bosse

explained that he posted notice of the meetings 24 hours prior by attaching a piece

of paper to the outside of the door to his business, Bolt Marketing.

[¶51.] While we certainly do not condone this type of procedure for giving

“notice”, in Troy Township, this Court observed that alleged due process violations

related to statutory procedural requirements requires proof of prejudice. 2017 S.D.

50, ¶ 46, 900 N.W.2d at 857. Here, the McLaens have not identified any prejudice

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as a result of the Township’s failure to comply with the notice statutes. While they

did not have notice of the meetings, they were able to present information to the

Township related to this project following the August 17 meeting. In particular, the

McLaens, along with their attorney, and the Township supervisors attended the

meeting of the County Drainage Board, and at this meeting, the McLaens’ attorney

presented a drawing showing a drop in elevation in the area to be drained. Also,

the depositions of the Township supervisors indicate that there were several

informal discussions between Steven and the individual supervisors after this

meeting. The McLaens identify no record evidence illustrating what additional

information they would have provided to the Township had they been given the

opportunity to attend the meetings.

[¶52.] The McLaens essentially ask this Court to conduct a de novo review of

the Township’s decision. However, this Court is without authority to substitute our

judgment for that of the Township when we review non-quasi-judicial actions. See

Troy Twp., 2017 S.D. 50, ¶ 33, 900 N.W.2d at 852–53. Because a review of the

record reveals that the Township “examine[d] the relevant data and articulate[d] a

satisfactory explanation for its action[,]” the McLaens have not established that the

Township acted arbitrarily in denying the aspects of their project that impacted the

Township roads and right-of-way. 3 See id. (quoting Motor Vehicle Mfrs., 463 U.S. at

3. In a separate issue on appeal, the McLaens contend that the circuit court erred in stating that the appropriate course of action for the McLaens would have been to first obtain permission from White Township and then seek a permit from the Marshall County Drainage Board. In their view, this statement has no support in statute, case law, or other authority and therefore “reversal is warranted.” We need not review the propriety of the (continued . . .) -27- #29599 #29600

43, 103 S. Ct. at 2866). The circuit court properly granted the Township summary

judgment.

[¶53.] Affirmed.

[¶54.] JENSEN, Chief Justice, and KERN, SALTER, and MYREN, Justices,

concur.

________________________ (. . . continued) circuit court’s statement because the circuit court did not rule against the McLaens based on this statement and the statement has no bearing on the merits of the McLaens’ appeal.

We similarly do not need to address the additional issue raised by the McLaens—that the circuit court erred when it suggested “that drainage studies performed by an engineering firm are necessary to overrule the Township’s decision.” This point was made by the circuit court in the context of considering whether the McLaens satisfied their burden to produce evidence showing that the Township’s decision was contrary to evidence in the record. Even if an expert opinion was not essential to show that contrary evidence existed, the circuit court’s underlying point was legitimate, and something more than a difference in opinion between the supervisors and the McLaens must be shown in order for the McLaens to establish that the Township acted arbitrarily.

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