#25681-a-DG

2011 S.D. 5

                        IN THE SUPREME COURT
                                OF THE
                       STATE OF SOUTH DAKOTA

                              * * * *

GRANT COUNTY CONCERNED
CITIZENS,                                Petitioner and Appellant,

v.

GRANT COUNTY BOARD OF
COMMISSIONERS, PAUL DUMMANN,
DAVID FORRETT, GENE MANN,
DOUG STENGEL, CLAYTON TUCHOLKE
and KAREN LAYHER, COUNTY AUDITOR,        Respondents and Appellees.

                              * * * *

                APPEAL FROM THE CIRCUIT COURT OF
                   THE THIRD JUDICIAL CIRCUIT
                  GRANT COUNTY, SOUTH DAKOTA

                              * * * *

                     HONORABLE ROBERT L. TIMM
                              Judge

                              * * * *
SAM EBRAHIM KHOROOSI
Sioux Falls, South Dakota                Attorney for petitioner
                                         and appellant.

ZACHARY W. PETERSON
JACK H. HIEB of
Richardson, Wyly, Wise
 Sauck & Hieb, LLP
Aberdeen, South Dakota                   Attorneys for respondents
                                         and appellees.

                              * * * *
                                        CONSIDERED ON BRIEFS
                                        ON JANUARY 10, 2011

                                        OPINION FILED 02/02/11
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GILBERTSON, Chief Justice

[¶1.]         Grant County Concerned Citizens submitted a proposed amendment to

a zoning ordinance to the Grant County Board of Commissioners. After proceeding

through the proper procedures, the Board of Commissioners rejected the

amendment. The Board of Commissioners then denied a referendum petition by

Concerned Citizens to refer the proposed amendment to qualified county voters.

The circuit court denied the Concerned Citizens’ petition for a writ of mandamus to

compel the Board of Commissioners to refer the proposed amendment. Concerned

Citizens appeals the denial of the writ of mandamus.

                                      FACTS

[¶2.]         The parties stipulated to the facts. Grant County Concerned Citizens

(Petitioner) submitted, under SDCL 11-2-28, a proposed amendment to a zoning

ordinance that would increase the setbacks for Class A, B, C, and D Concentrated

Animal Feeding Operations.* The Grant County Board of Commissioners (Board)

referred the proposed amendment to the Grant County Planning and Zoning Board

for a recommendation. The Planning and Zoning Board held a public hearing on

the proposed amendment, received public testimony, deliberated, and unanimously

voted to recommend that the proposed amendment be rejected. At the next County

Commissioners’ meeting, the recommendation was presented and additional public

comments were received from both proponents and opponents of the proposed




*       Petitioner also submitted a proposed amendment to include barns and
        manure lagoons within the setback requirements. This amendment was
        accepted by the Board and is not an issue on appeal.

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amendment. Board Chairman Paul Dummann moved to adopt the proposed

amendment and called for a second three times. The motion died for lack of a

second. After more discussion, Commissioner Clayton Tucholke moved to accept the

recommendation to reject the proposed amendment. The motion received a second

and carried 3-2.

[¶3.]        Petitioner filed a petition with the Board under SDCL 11-2-22 and

SDCL §§ 7-18A-15 to -24 to refer the proposed amendment to a public vote. The

referral petition was signed by more than five percent of the registered voters, as

required by SDCL 7-18A-15. At the Board’s next meeting, the Board rejected the

referendum petition on the grounds that the matter was not referable. The Board’s

decision was published in the Grant County Review.

[¶4.]        Petitioner filed for a writ of mandamus in circuit court. After the

parties stipulated to the facts and a hearing was held, the circuit court issued a

letter decision agreeing with the Board. The court later issued its findings of fact

and conclusions of law, denying the petition for a writ of mandamus and dismissing

the matter on its merits with prejudice. It held that the proposed amendment

rejected by the Board was not a legislative decision and was therefore not referable

to a referendum vote.

[¶5.]        On appeal, Petitioner raises one issue:

             Whether a proposed amendment to a zoning ordinance that is
             rejected by a county commission is referable to the qualified
             voters of the county.




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                             STANDARD OF REVIEW

[¶6.]        This Court reviews the decision to grant or deny a writ of mandamus

under an abuse of discretion standard. Vitek v. Bon Homme Cnty. Bd. of Comm’rs,

2002 S.D. 45, ¶ 5, 644 N.W.2d 231, 233. This Court reviews questions of statutory

interpretation de novo. Discover Bank v. Stanley, 2008 S.D. 111, ¶ 15, 757 N.W.2d

756, 761 (citing Martinmaas v. Engelmann, 2000 S.D. 85, ¶ 49, 612 N.W.2d 600,

611).

                                     ANALYSIS

[¶7.]        We begin by briefly discussing the remedy of a writ of mandamus.

South Dakota law provides:

              The writ of mandamus may be issued by the Supreme and
              circuit courts, to any inferior tribunal, corporation, board, or
              person, to compel the performance of an act which the law
              specially enjoins as a duty resulting from an office, trust, or
              station; or to compel the admission of a party to the use and
              enjoyment of a right or office to which he is entitled, and from
              which he is unlawfully precluded by such inferior tribunal,
              corporation, board, or person.

SDCL 21-29-1. In addition, the “writ of mandamus must be issued in all cases

where there is not a plain, speedy, and adequate remedy, in the ordinary course of

law.” SDCL 21-29-2. Generally, mandamus is available to compel performance of

ministerial duties. Black Hills Cent. R.R. Co. v. City of Hill City, 2003 S.D. 152, ¶

14, 674 N.W.2d 31, 34. In order to prevail, Petitioner must show a clear legal right

to submit the rejected amendment to the referendum process. See Bechen v. Moody

Cnty. Bd. of Comm’rs, 2005 S.D. 93, ¶ 9, 703 N.W.2d 662, 664; Vitek, 2002 S.D. 45, ¶

12, 644 N.W.2d at 235. Petitioner must also show that the Board has a definite

legal obligation to submit the rejected amendment to the referendum process. The

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Board asserts, and the circuit court agreed, that the Board’s action of rejecting

Petitioner’s proposed amendment was not a legislative decision. Because it was not

a legislative decision, it cannot be submitted to the referendum process.

[¶8.]        As noted in Vitek, “South Dakota, through its Constitution, ‘has

reserved the referendum power to the people.’” 2002 S.D. 45, ¶ 10, 644 N.W.2d at

234 (citing Taylor Props., Inc. v. Union Cnty., 1998 S.D. 90, ¶ 24, 583 N.W.2d 638,

643). Article III, § 1 of the South Dakota Constitution provides in part:

             [T]he people expressly reserve to themselves the right to propose
             measures, which shall be submitted to a vote of the electors of
             the state, and also the right to require that any laws which the
             Legislature may have enacted shall be submitted to a vote of the
             electors of the state before going into effect.

“This sacred right is also specifically extended to the issue of county comprehensive

plans and adjuncts thereto by SDCL 11-2-22.” Vitek, 2002 S.D. 45, ¶ 10, 644

N.W.2d at 234 (citing Taylor Props., 1998 S.D. 90, ¶ 24, 583 N.W.2d at 643).

[¶9.]        The procedure Petitioner followed in attempting to amend the zoning

ordinance is outlined in SDCL 11-2-28. See Schafer v. Deuel Cnty. Bd. of Comm’rs,

2006 S.D. 106, ¶ 14, 725 N.W.2d 241, 247 (“SDCL 11-2-28 is specific to zoning . . .

[and] controls amendments to zoning ordinances. . . .”). SDCL 11-2-28 provides in

part:

             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 in the original resolution or ordinance. The
             amendment, supplement, change, modification, or repeal may be
             requested through a petition by twenty percent of the


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             landowners in the zoning district or districts requesting
             change[.]

Petitioner complied with the proper procedure for submitting an amendment of the

ordinance.

[¶10.]       SDCL 11-2-30 provides, “After the hearing, the board shall by

resolution or ordinance, as appropriate, either adopt or reject the amendment,

supplement, change modification, or repeal. . . . The provisions of § 11-2-22 are

applicable to this section.” In this case, the Board rejected the proposed

amendment and then refused Petitioner’s attempt to refer the rejected amendment

to the referendum process. The circuit court held that “the rejection of a proposed

amendment of an ordinance enacts nothing. Rejection of a proposed amendment is

not a legislative decision referable under the plain meaning of South Dakota law.”

[¶11.]       Although SDCL 11-2-22 is applicable to SDCL 11-2-30, the text of

SDCL 11-2-22 does not contemplate referring to the referendum process a proposed

amendment that was rejected by the Board. SDCL 11-2-22 provides:

             The comprehensive plan, zoning ordinance, and subdivision
             ordinance may be referred to a vote of the qualified voters of the
             county pursuant to §§ 7-18A-15 to 7-18A-24, inclusive. The
             effective date of the comprehensive plan, zoning ordinance, or
             subdivision ordinance on which a referendum is to be held shall
             be suspended by the filing of a referendum petition until the
             referendum process is completed[.]

The language of the statute refers only to a “comprehensive plan, zoning ordinance,

and subdivision ordinance.” Petitioner is not seeking to refer any of these but

rather a rejected amendment to a zoning ordinance. By its terms, SDCL 11-2-22 is

not applicable.



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[¶12.]       Even if the proposed amendment did fit into the actions listed in SDCL

11-2-22, the referral must be made “pursuant to [SDCL] §§ 7-18A-15 to 7-18A-24,

inclusive.” SDCL 7-18A-15 provides in part, “Any ordinance or resolution adopted

by a board of county commissioners may be referred to a vote of the qualified voters

of the county by the filing of a petition signed by five percent of the registered voters

in the county[.]” (Emphasis added.) We have previously stated that “SDCL 7-18A-

15 is clear and unambiguous and limits the referendum to ‘any ordinance or

resolution adopted by a board of county commissioners.’” Bechen, 2005 S.D. 93, ¶

17, 703 N.W.2d at 666. This statute contemplates an adoption of an ordinance or

resolution by the Board. The Board in this case rejected the proposed amendment.

[¶13.]       Furthermore, SDCL 7-18A-15.1 places limits on the referendum

process. It provides in part:

             Any legislative decision of a board of county commissioners is
             subject to the referendum process. A legislative decision is one
             that enacts a permanent law or lays down a rule of conduct or
             course of policy for the guidance of citizens or their officers. Any
             matter of a permanent or general character is a legislative
             decision[.]

The circuit court cited to the definition of “legislative decision” in SDCL 7-18-15.1

and held that a rejection of a proposed amendment to an ordinance is not a

legislative decision because it enacts nothing.

[¶14.]       Petitioner argues that the Board’s rejection of the proposed

amendment constitutes a legislative act. We disagree. In following the statutes

and their internal cross-references, the legislative intent is that only an affirmative

action effecting some change in an existing ordinance or the passing of a new

ordinance, as referenced in SDCL 7-18A-15, may be referred to a referendum vote.

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Only a decision by the Board that produced some change to the status quo of the

ordinance constitutes an “act” under the plain language of SDCL 7-18A-15.1.

Additionally, SDCL 7-18A-15.1 is nearly identical to SDCL 9-20-19, with the

exception that SDCL ch. 9-20 governs municipal government actions. In Wang v.

Patterson, 469 N.W.2d 577 (S.D. 1991), this Court discussed the distinction between

legislative and administrative decisions, noting that “all municipal action cannot be

subject to local review by the electorate. If government is to function there must be

some area in which representative action will be final.” Wang, 469 N.W.2d at 579

(additional citations omitted). We went on to state that “where discretion is left to

the local government as to what it may do, when the local government acts, it acts

legislatively and its actions are subject to normal referendum procedure.” Id. Once

again the language from Wang contemplates that the local government did act in

some way. The Board’s refusal in this case was not an act; it is, as the circuit court

held, nothing.

[¶15.]       This must be the result because whether an act produces change or not

dictates what recourse is available for the proponents of the change, namely, a

petition for either an initiative or a referendum. This Court has long recognized the

distinction between initiative and referendum.

            Initiative is the constitutional reservation of power in the people
            to propose bills and laws and to enact or reject them at the polls
            independent of the legislative assembly. Referendum, on the
            other hand, is a right constitutionally reserved to the people of
            the state or local subdivisions thereof to have submitted for their
            approval or rejection any act, or part of any act, passed by the
            legislature which in most cases would, without action on the part
            of the electorate, become a law.



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Byre v. City of Chamberlain, 362 N.W.2d 69, 79 (S.D. 1985). See also Brendtro v.

Nelson, 2006 S.D. 71, ¶ 26, 720 N.W.2d 670, 679; Christensen v. Carson, 533 N.W.2d

712, 714 (S.D. 1995). Furthermore, “the purpose of referendum is to suspend or

annul laws which are not yet effective in order to provide the people a means of

expressing their desire regarding a legislative proposition.” Byre, 362 N.W.2d at 79.

This Court recognized in 1913 that “the exercise of the referendum . . . is in effect

the exercise of the veto power.” State ex rel. Wagner v. Summers, 33 S.D. 40, 50,

144 N.W.730, 732 (1913). Examining the procedure preceding a referendum vote

and the purpose of the referendum, it is clear that the proposed amendment cannot

be submitted to the referendum process because the Board rejected the proposal.

The proposed amendment is not a law or legislative proposition passed by the

Board. The public would be asked to vote on an amendment the Board had rejected,

a request that would be unknown in South Dakota history and against statutory

language.

                                   CONCLUSION

[¶16.]       Because the Board’s rejection of Petitioner’s proposed amendment was

not a legislative decision, it is not referable to the referendum process. The circuit

court’s denial of Petitioner’s application for a writ of mandamus is affirmed.

[¶17.]       KONENKAMP, ZINTER, MEIERHENRY, and SEVERSON, Justices,

concur.




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