#27702-a-GAS
2016 S.D. 65
                      IN THE SUPREME COURT
                              OF THE
                     STATE OF SOUTH DAKOTA
                               ****
STEVE HYDE, KATHY HYDE,
CLARK GUTHMILLER, LISA
GUTHMILLER, WARREN WILSON,
SHERRI WILSON, JIM THIBODEAU,
DAN LEONARD, LARRY WILCOX,
RICHARD HYDE and CHERYL HYDE,            Plaintiffs and Appellants,

     v.

SULLY COUNTY BOARD OF
ADJUSTMENT,                                  Defendant and Appellee,

     and

RING-NECK ENERGY & FEED, LLC,
a South Dakota Limited
Liability Company,                           Intervenor and Appellee.

                                 ****
                  APPEAL FROM THE CIRCUIT COURT OF
                      THE SIXTH JUDICIAL CIRCUIT
                     SULLY COUNTY, SOUTH DAKOTA
                                 ****
                    THE HONORABLE JOHN L. BROWN
                                 Judge
                                 ****
ADAM ALTMAN
Aberdeen, South Dakota                     Attorney for plaintiffs and
                                           appellants.
JACK H. HIEB
ZACHARY W. PETERSON of
Richardson, Wyly, Wise,
 Sauck & Hieb, LLP
Aberdeen, South Dakota                     Attorneys for defendant and
                                           appellee Sully Cty. Bd. of
                                           Adjustment.
CRAIG E. SMITH
Neumayr & Smith
Gettysburg, South Dakota                   Attorneys for intervenor and
                                           appellee.
                                 ****
                                           CONSIDERED ON BRIEFS
                                           ON AUGUST 29, 2016
                                           OPINION FILED 09/28/16
#27702

SEVERSON, Justice

[¶1.]        Petitioners appealed the decision of the Sully County Board of

Adjustment to grant a conditional use permit to Ring-Neck Energy & Feed, LLC, for

an ethanol plant. Petitioners appeal from the circuit court’s dismissal of the appeal

as untimely. We affirm.

                                    Background

[¶2.]        On July 20, 2015, the Sully County Board of Adjustment (the Board)

considered an application by Ring-Neck Energy & Feed, LLC, for a conditional use

permit (CUP) that would allow construction and operation of an ethanol plant. The

Board granted the CUP and adopted findings of fact and conclusions of law to that

effect. Ring-Neck Energy’s application was marked approved, and the Board’s

chairman signed and dated it on July 20, 2015. The approved permit was filed that

same day in the Sully County Planning and Zoning office. When the Board next

met, on August 4, 2015, it approved the minutes from the July 20th meeting. When

doing so, it approved additional language to be added to the conditions of the CUP.

After the addition, which is underlined below, condition f (1) reads:

             Applicant shall remain responsible either individually or
             through cooperation with the County in any combination of the
             funding sources set forth in Exhibit 2, Section 10, so as to ensure
             the Sully County budget is protected from the estimated $1.2
             million cost for road paving and/or restructuring and rebuilding
             to account for the truck traffic of 186th Street from US Highway
             83 east to 305th Avenue, and then south to Applicant’s site
             entrance (apx. 1.2 miles); In the event that funding sources
             described in Exhibit 2, Section 10, are insufficient or
             unobtainable, Applicant shall bear that responsibility . . . .

[¶3.]        On August 20, 2015, Petitioners filed a petition for writ of certiorari

with the circuit court. Petitioners alleged that the Board’s decision granting the

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CUP was illegal. In their petition, Petitioners claimed that the Board’s decision

was ultra vires because the meeting violated open-meetings laws, the Board failed

to adopt rules in accordance with SDCL 11-2-54, and it failed to adopt criteria

pursuant to SDCL 11-2-17.3 for evaluating each conditional use. Petitioners also

alleged that an ethanol plant is not allowed in the zoning district where Ring-Neck

Energy plans to build and that various aspects of the ethanol plant did not meet

zoning ordinance requirements or were not allowed under the ordinances. The

court granted the writ on August 25, 2015, and ordered the Board to produce a

transcript of the record and proceedings for the court’s review.

[¶4.]        Ring-Neck Energy moved to intervene, and the circuit court granted its

motion. Ring-Neck Energy subsequently moved to quash the writ and dismiss the

petition as untimely. The court decided to defer the motions hearing until the

entire matter could be heard on the merits on October 26, 2015. The court issued

its decision on November 10, 2015. The court determined that it lacked subject-

matter jurisdiction because the petition was untimely under SDCL 11-2-61. On

appeal to this Court, Petitioners assert that their petition was timely. They also

contend that the Board failed to follow the State’s open-meetings laws, that it did

not act within its authority when it allowed uses that did not comply with the

zoning ordinances, and that the Board’s failure to follow procedural rules voids the

Board’s decision.

                                      Analysis

[¶5.]        We first address the timeliness of the petition for writ of certiorari.

“This [C]ourt has consistently recognized that the right to an appeal is purely


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#27702

statutory and no appeal may be taken absent statutory authorization. An

attempted appeal from which no appeal lies is a nullity and confers no jurisdiction

on the court except to dismiss it.” Elliott v. Bd. of Cty. Comm’rs of Lake Cty.,

2005 S.D. 92, ¶ 15, 703 N.W.2d 361, 368 (quoting Appeal of Lawrence Cty.,

499 N.W.2d 626, 628 (S.D. 1993)). “We review issues regarding a [c]ourt’s

jurisdiction as questions of law under the de novo standard of review.” Elliott v. Bd.

of Cty. Comm’rs of Lake Cty., 2007 S.D. 6, ¶ 9, 727 N.W.2d 288, 289.

[¶6.]         At the time Petitioners sought relief, SDCL 11-2-61 1 provided:

              Any person or persons, jointly or severally, aggrieved by any
              decision of the board of adjustment, or any taxpayer, or any
              officer, department, board, or bureau of the county, may present
              to a court of record a petition duly verified, setting forth that the
              decision is illegal, in whole or in part, specifying the grounds of
              the illegality. The petition shall be presented to the court within
              thirty days after the filing of the decision in the office of the board
              of adjustment.

(Emphasis added). In this case, Petitioners petitioned the circuit court for relief on

August 20, 2015, thirty-one days after the Board’s decision approving the permit

was filed in the Sully County Planning and Zoning office on July 20, 2015. The

statute clearly provides that the time for appeal begins to run upon the filing of the

decision. It provides that an aggrieved person must present a petition “within

thirty days after the filing of the decision in the office of the board of adjustment.”

SDCL 11-2-61 (emphasis added). The Board’s decision was filed in the Sully County

Planning and Zoning Office, which for filing purposes, serves as the Sully County

Office of the Board of Adjustment.



1.      In 2016, the Legislature modified SDCL 11-2-61.

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#27702

[¶7.]         Petitioners maintain that the object of their appeal is the Board’s

approval of the meeting minutes and not the Board’s decision to grant the CUP.

Their position is unsupported. Because SDCL 11-2-61 requires that the petition set

“forth that the decision is illegal” and specify “the grounds of the illegality,” the

relevant decision that the statute is referencing is that which the petitioner is

claiming is illegal. Petitioners have not contended that by adding language in the

minutes, the Board has failed to regularly pursue its authority. 2 See Elliot, 2005

S.D. 92, ¶ 14, 703 N.W.2d at 367 (quoting SDCL 21-31-8) (“The standard of review

for a writ of certiorari ‘cannot be extended further than to determine whether the

board has regularly pursued the authority of such board.’”). Therefore, the relevant

decision that Petitioners are appealing from is the Board’s decision to grant the

CUP on July 20, not the decision to approve the Board’s minutes. 3



2.      Nor could they contend that it was illegal in this case. Subject to certain
        restrictions, administrative agencies have “inherent authority to correct
        adjudications which appear to be erroneous.” Jundt v. Fuller, 2007 S.D. 62,
        ¶¶ 7-8, 736 N.W.2d 508, 512 (quoting Stearns-Hotzfield v. Farmers Ins. Exch.,
        360 N.W.2d 384, 389 (Minn. Ct. App. 1985) (citing Anchor Cas. Co. v.
        Bongards Coop. Creamery Assoc., 91 N.W.2d 122 (Minn. 1958))). We
        explained:
              Generally, an agency’s “right to reverse an earlier, erroneous
              adjudication lasts until jurisdiction is lost by appeal or until a
              reasonable time has run, which would at least be co-extensive with the
              time required by statute for review.”
        Id. ¶ 7, 736 N.W.2d at 512 (quoting Stearns-Hotzfield, 360 N.W.2d at 389).
        Furthermore, the additional language did not materially change condition f
        in the way that Petitioners contend.

3.      Petitioners cite to cases from Arizona and Ohio for the proposition that
        “[a]pproval of the minutes of a meeting is widely seen a[s] the act that
        triggers the timeline for challenging the action taken at the meeting of the
        Board.” The cases cited do not stand for such a proposition, and they
                                                                    (continued . . .)
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#27702

[¶8.]        Petitioners failed to timely appeal the Board of Adjustment’s decision

to grant a conditional use permit to Ring-Neck Energy & Feed LLC. Therefore, we

do not address the other issues raised by Appellants. We affirm the circuit court’s

dismissal.

[¶9.]        GILBERTSON, Chief Justice, and ZINTER, WILBUR and KERN,

Justices, concur.




_________________________________________________
(. . . continued)
         construe statutes and ordinances unlike those involved in this case. The two
         cases from Arizona, Pioneer Trust Co. of Arizona v. Pima Cty., 811 P.2d. 22,
         30 (Ariz. 1991) (en banc), and Grosvenor Holdings L.C. v. City of Peoria,
         985 P.2d 622, 625 (Ariz. Ct. App. 1999), addressed the timeliness of
         referendum petitions on a county’s decision to rezone. In Pioneer Trust Co.,
         the Arizona Supreme Court recognized that a board’s “minutes were subject
         to amendment until the Board approved them.” 811 P.2d at 30. In Grosvenor
         Holdings, the Arizona court examined its laws on the time to file a
         referendum petition and determined that “the right of referendum was
         triggered by approval of the minutes of the meeting at which the rezoning
         decision was made.” 985 P.2d at 624. Otherwise, referendum petitions could
         not meet state requirements that a “full and correct copy of the matter to be
         referred [be] attached to them[.]” Pioneer, 811 P.2d. at 29. This case does not
         involve a referendum petition. Thus, the Arizona cases have no applicability
         to this case. The Ohio case addressed specific zoning regulations that
         provided “an appeal from a decision must be made within 30 days of the
         approval of the minutes of the hearing in which the board made its decision.”
         Guttentag v. Etna Twp. Bd. of Zoning Appeals, 893 N.E.2d 890, 893 (Ohio Ct.
         App. 2008).

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