#26897-a-JKK
2014 S.D. 44

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

                            ****
SHAWN TIBBS, VIRGIL STEMBAUGH,
GENE GULLICKSON and JANET
GULLICKSON,                                 Petitioners and Appellants,

      v.

MOODY COUNTY BOARD OF
COMMISSIONERS, sitting as
THE BOARD OF ADJUSTMENT,
and MUSTANG PASS, LLC,                      Respondents and Appellees.

                                ****
                 APPEAL FROM THE CIRCUIT COURT OF
                     THE THIRD JUDICIAL CIRCUIT
                    MOODY COUNTY, SOUTH DAKOTA
                                ****
               THE HONORABLE GREGORY J. STOLTENBURG
                                Judge
                                ****

MITCHELL A. PETERSON of
Davenport, Evans, Hurwitz & Smith, LLP
Sioux Falls, South Dakota                   Attorneys for petitioners
                                            and appellants.

JACK H. HIEB
ZACHARY W. PETERSON of
Richardson, Wyly, Wise, Sauck & Hieb, LLP
Aberdeen, South Dakota                      Attorneys for appellee Moody
                                            County Board of Commissioners
                                            Sitting as Board of Adjustment.

JAMES S. SIMKO of
Cadwell, Sanford, Deibert & Garry, LLP
Sioux Falls, South Dakota                   Attorneys for appellee Mustang
                                            Pass, LLC.

                                    ****
                                            ARGUED ON MAY 28, 2014

                                            OPINION FILED 07/09/14
#26897

KONENKAMP, Justice

[¶1.]        The Moody County Board of Adjustment granted a conditional use

permit to allow a concentrated animal feeding operation in Moody County. Shawn

Tibbs, Virgil Stembaugh, and Gene and Janet Gullickson (the Citizens) petitioned

the circuit court for a writ of certiorari challenging the board of adjustment’s

decision to grant the conditional use permit. The Citizens also argued that the

statutory scheme governing appeals to circuit courts from county-level decisions on

conditional use permits violated their equal protection rights. The circuit court

denied the writ and the Citizens appeal.

                                    Background

[¶2.]        On January 16, 2013, Mustang Pass, LLC applied for a conditional use

permit (CUP) to construct a concentrated animal feeding operation in Moody

County. The zoning officer issued a written recommendation to the Moody County

Board of Adjustment that the CUP be approved with the addition of six conditions.

On January 23, 2013, the Moody County Board of Adjustment published a notice in

the local newspaper announcing that a public hearing on Mustang’s application

would be held on February 5, 2013. At the hearing, the board received evidence,

including testimony from Mustang’s principals, the engineers who prepared the

CUP, and members of the public. At a later meeting in March, the board approved

Mustang’s CUP. The board issued written findings and conditional use permit

requirements, identified the board’s jurisdiction to consider Mustang’s application,

outlined the procedural history on Mustang’s CUP, certified Mustang’s compliance

with the rules governing conditional use requests, and imposed certain “special

conditions and safeguards.”
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[¶3.]        The Citizens petitioned the circuit court for a writ of certiorari to

invalidate Mustang’s CUP. They challenged the board’s jurisdiction to consider

Mustang’s application, asserting that Moody County failed, in 2003, to properly

enact its zoning ordinances. These ordinances created the Moody County Board of

Adjustment and gave it power to hear and consider CUPs. In the Citizens’ view,

because the zoning ordinances were not properly enacted, all action taken by the

Moody County Board of Adjustment since 2003 was void ab initio, including the

decision by the board of adjustment to approve Mustang’s CUP. They also asserted

that Moody County did not have legislative authority to delegate to the board of

adjustment original jurisdiction to consider a CUP application, and therefore, the

board’s approval of Mustang’s CUP was void. Finally, the Citizens argued that

SDCL chapter 11-2 and the statutory scheme governing appeals from CUP-related

decisions at the circuit court level violates the Equal Protection Clause of the South

Dakota Constitution because it gives some aggrieved parties a more favorable de

novo review before the circuit court and other aggrieved parties less favorable

review by writ of certiorari. See S.D. Const. art. VI, § 18.

[¶4.]        After a hearing in September 2013, the circuit court issued a

memorandum decision that was later incorporated into its findings of fact and

conclusions of law. The court found “no procedural defects” in Moody County’s 2003

adoption of its zoning ordinances and accordingly ruled that the board of

adjustment was validly created. The court further concluded that Moody County

did not improperly delegate its authority to the board of adjustment, even though

SDCL 11-2-17.3 (the statute giving counties the power to designate the approving

authority for CUPs) was not in effect at the time Moody County adopted its
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ordinance. In examining SDCL chapter 11-2, the circuit court concluded that a

harmonious and workable reading of the statutes necessitated the conclusion that

the Moody County Board of Adjustment had both appellate and original

jurisdiction.

[¶5.]           On the Citizens’ equal protection claim, the court detailed the

legislative history leading to the inconsistent appellate processes from county CUP

decisions. See Armstrong v. Turner Cnty. Bd. of Adjustment, 2009 S.D. 81, ¶¶ 10-

11, 772 N.W.2d 643, 647-48. The court noted that in 2003, the Legislature amended

SDCL 11-2-53 and gave boards of adjustment the power to consider certain CUP

issues. Then, in 2004, the Legislature removed the statutory provision giving

boards of adjustment the authority to approve CUPs. But the Legislature enacted

SDCL 11-2-17.3 giving counties the power to designate the approving authority for

CUPs. The Legislature did not make “any reference to an appeal procedure if the

county-designated entity was not a board of adjustment.” See Armstrong, 2009 S.D.

81, ¶ 10, 772 N.W.2d at 648. Therefore, “the same action of approving or denying a

conditional use permit may have a different appeal procedure depending on which

entity approves the permit.” Id. ¶ 11.

[¶6.]           The circuit court then applied the traditional two-part test for claims

that a statute violates equal protection: (1) does the statute create an arbitrary

classification among citizens, and (2) “if the classification does not involve a

fundamental right or suspect group,” is there a rational relationship “between a

legitimate legislative purpose and the classification created”? See In re Davis, 2004

S.D. 70, ¶ 5, 681 N.W.2d 452, 454. On the first prong, the court concluded that,

“[w]hen applied, the statute [SDCL 11-2-17.3] gives every county in South Dakota
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the same opportunity to choose which entity they would like to place the conditional

use authority in.” Thus, the court found that the Legislature did not create a

classification. The court ruled alternatively that even if the statute created a

classification among citizens, the Citizens “would still fail to prove arbitrariness.”

As the court explained, “It makes sense to allow the individual counties the

flexibility to determine the mechanism by which zoning issues are considered and

appealed.” The court highlighted the “great disparity between counties in this

state,” and opined that “[i]t may be appropriate to allow Moody County, or any

county, different options when dealing with zoning issues.” The Citizens’ recourse,

according to the court, “rests primarily in the ballot box.”

[¶7.]        Although the court found no arbitrary classification, it addressed the

second prong — whether there is a rational relationship between a legitimate

legislative purpose and the classification. The court determined that a legitimate

legislative purpose existed in the allowance of flexibility to each county on zoning

issues and that differing standards of review are rationally related to that purpose.

It concluded that the Citizens failed to meet their burden that there is no rational

relationship between the legitimate legislative purpose and the classification

created and denied the Citizens’ petition for a writ of certiorari.

[¶8.]        On appeal, the Citizens assert that the statutory scheme applicable to

the appeal procedure from a board of adjustment decision is unconstitutional in

violation of the Equal Protection Clause and that the Moody County Board acted in

excess of its jurisdiction, failed to pursue its authority in a regular manner, and

failed to do an act required by law.


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                               Analysis and Decision

             1. Equal Protection

[¶9.]        The Citizens argue that the writ of certiorari standard of review

applied to a board of adjustment’s CUP decision violates their right to equal

protection of the law. See SDCL 11-2-61, -62. They claim an inequality exists

because citizens in counties without a board of adjustment receive a more favorable

de novo standard of review of CUP decisions at the circuit court level under SDCL

7-8-30, while citizens in counties with a board of adjustment receive a less favorable

standard of review by writ of certiorari under SDCL chapter 11-2. The Citizens

further contend that these differing standards of review at the circuit court level are

arbitrary and in no way relate to county flexibility in handling local zoning issues.

Although the Citizens insist that this implicates a fundamental right because their

property rights are at stake, they claim alternatively that even if a fundamental

right is not involved, there is no “legitimate legislative purpose for providing an

absolute right to de novo review of CUP decisions to some citizens, while

simultaneously restricting the review for other similarly situated citizens located in

other counties.”

[¶10.]       A statute’s constitutionality and proper interpretation are questions

we review de novo. In re Z.B., 2008 S.D. 108, ¶ 5, 757 N.W.2d 595, 598 (citing

Buchholz v. Storsve, 2007 S.D. 101, ¶ 7, 740 N.W.2d 107, 110). “Any legislative act

is accorded a presumption in favor of constitutionality and that presumption is not

overcome until the unconstitutionality of the act is clearly and unmistakably shown

and there is no reasonable doubt that it violates fundamental constitutional

principles.” Accounts Mgmt., Inc. v. Williams, 484 N.W.2d 297, 299 (S.D. 1992)
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(citations omitted). The constitutional question here is whether the Equal

Protection Clause prohibits the differing standards of review applied to CUP

decisions at the circuit court level. See SDCL 7-8-30 (appeal from a county

decision); SDCL 11-2-61, -62 (appeal from a board of adjustment decision). The

Equal Protection Clause of the South Dakota Constitution guarantees that “[n]o law

shall be passed granting to any citizen, class of citizens or corporation, privileges or

immunities which upon the same terms shall not equally belong to all citizens or

corporations.” S.D. Const. art. VI, § 18.

[¶11.]       In deciding whether a statutory scheme comports with the Equal

Protection Clause, we apply a two-part test. “First, we determine whether the

statute creates arbitrary classifications among citizens.” Davis, 2004 S.D. 70, ¶ 5,

681 N.W.2d at 454 (citing City of Aberdeen v. Meidinger, 89 S.D. 412, 233 N.W.2d

331, 333 (1975)). “Second, if the classification does not involve a fundamental right

or suspect group, we determine whether a rational relationship exists between a

legitimate legislative purpose and the classifications created.” Id. (citing Accounts

Mgmt., Inc., 484 N.W.2d at 300).

[¶12.]       On the first prong, we look to see whether “the statute applies equally

to all people.” Accounts Mgmt., Inc., 484 N.W.2d at 300. While SDCL 11-2-17.3 on

its face applies equally to all counties, in that each county is afforded the

opportunity to designate the approving authority for a CUP, the statutes governing

circuit court appeals of CUP decisions in effect sets up two classes of citizens. One

class comprises citizens in a county that designated a board of adjustment to

consider CUPs, thereby invoking the writ of certiorari review process in circuit

court. See SDCL 11-2-61, -62. The second class comprises citizens in a county that
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chose not to designate a board of adjustment, thereby invoking the de novo standard

of review in circuit court. See SDCL 7-8-30; see Armstrong, 2009 S.D. 81, ¶¶ 10-11,

772 N.W.2d at 647-48.

[¶13.]       The next inquiry is whether the classification is arbitrary. Equal

protection of the law does not deny a state the right to make classifications in law,

so long as those classifications are rooted in reason. State v. Krahwinkel, 2002 S.D.

160, ¶ 21, 656 N.W.2d 451, 460-61. Indeed, classification is the essence of

legislation and the Legislature is not prohibited “from making classifications based

upon difference in ‘terms’ surrounding individuals.” Accounts Mgmt., Inc., 484

N.W.2d at 300; see also Clements v. Fashing, 457 U.S. 957, 964, 102 S. Ct. 2836,

2845, 73 L. Ed. 2d 508 (1982). “A statute will not be declared invalid ‘unless it is

“patently arbitrary” and bears no rational relationship to a legitimate governmental

interest.’” Accounts Mgmt., Inc., 484 N.W.2d at 300 (citations omitted); see also

Davis, 2004 S.D. 70, ¶ 4, 681 N.W.2d at 454. As the United State Supreme Court

explained, “When social or economic legislation is at issue, the Equal Protection

Clause allows the States wide latitude, and the Constitution presumes that even

improvident decisions will eventually be rectified by the democratic processes.” City

of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440, 105 S. Ct. 3249, 3254, 87 L.

Ed. 2d 313 (1985) (internal citations omitted).

[¶14.]       Here, although the classes of citizens appear to be arbitrarily classified

— differing standards of review of CUP decisions based on whether the county has a

board of adjustment or not — our review of the constitutionality of the statutory

scheme is not isolated to a simple comparison of standards of review at the circuit

court level. See Sedlacek v. S.D. Teener Baseball Program, 437 N.W.2d 866, 869
                                         -7-
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(S.D. 1989). On the contrary, we must examine the CUP processes as a whole to

determine if the two classes of citizens are “postured in the same stance.” See

Accounts Mgmt., Inc., 484 N.W.2d at 300. This is because “[e]qual protection of law

requires that the rights of every person be governed by the same rule of law, under

similar circumstances.” Krahwinkel, 2002 S.D. 160, ¶ 21, 656 N.W.2d at 460

(citation omitted).

[¶15.]       In probing the circumstances surrounding a CUP decision by a board of

adjustment compared to a CUP decision by a county commission, we note one

procedural difference. In a county that designated a board of adjustment as the

approving authority, SDCL 11-2-59 mandates that a “concurring vote of two-thirds

of the members of the board of adjustment is necessary . . . to decide in favor of the

applicant[.]” A decision before the county commission, on the other hand, requires

only a simple-majority vote. See SDCL 7-8-18. Based on this statutory difference

alone, the Legislature could have properly concluded that a decision by a board of

adjustment should be afforded more deference at the circuit court level than a

decision by a county commission, and therefore, these differing standards of review

are not arbitrary.

[¶16.]       Nonetheless, the Citizens contend that Aberdeen, 89 S.D. 412, 233

N.W.2d 331 and Metropolitan Associates v. City of Milwaukee, 796 N.W.2d 717 (Wis.

2011) support proof of arbitrary classifications. In Meidinger, the challenged

statutory scheme created a classification affecting similarly situated citizens: a city

with a municipal court could impose a greater penalty for the same municipal

ordinance violation as compared to a city without a municipal court. The

classification meant that a person convicted of the same infraction could be
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subjected to a greater penalty depending on whether the city had a municipal court.

89 S.D. at 415, 233 N.W.2d at 333. Here, however, the classification created by the

statutory scheme does not involve the same circumstances. Rather, the

classification can be related to a “difference in ‘terms’ surrounding individuals,” see

Accounts Mgmt., Inc., 484 N.W.2d at 300, based upon the fact an applicant seeking

a CUP must obtain a super-majority vote of a board of adjustment versus a simple-

majority vote of a county commission.

[¶17.]        Likewise, the statutory scheme in Metropolitan Associates created a

classification affecting similarly situated citizens: appellant taxpayers living in a

municipality opting out of de novo review and appellant taxpayers living in a

municipality not opting out. 796 N.W.2d at 724. The classification did not relate to

any distinctions between the characteristics of the taxpayers. Id. at 733. According

to the Wisconsin Court, “[t]axpayers in opt out municipalities are no different from

taxpayers in all other municipalities, except for the different rights available to

taxpayers in opt out municipalities at the Board of Review and circuit court review

stages.” Id. at 734. Here, however, the procedure in obtaining a CUP before a

board of adjustment is different from the procedure before a county commission,

making citizens appealing a board of adjustment’s CUP decision in circuit court

different from citizens similarly appealing a CUP decision from a county

commission.

[¶18.]        “In the area of economics and social welfare, a State does not violate

the Equal Protection Clause merely because the classifications made by its laws are

imperfect.” Dandridge v. Williams, 397 U.S. 471, 485, 90 S. Ct. 1153, 1161, 25 L.

Ed. 2d 491 (1970); see also Heller v. Doe, 509 U.S. 312, 321, 113 S. Ct. 2637, 2643,
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125 L. Ed. 2d 257 (1993). The Legislature need not “‘actually articulate at any time

the purpose or rationale supporting its classification.’” Z.B., 2008 S.D. 108, ¶ 9, 757

N.W.2d at 600 (quoting Heller, 509 U.S. at 320, 113 S. Ct. at 2642). Rather, “[i]n an

equal protection challenge, ‘[t]he burden is on the one attacking the legislative

arrangement to negate every conceivable basis which might support it.’” Id. ¶ 5

(quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364, 93 S. Ct.

1001, 1006, 35 L. Ed. 2d 351 (1973) (citations omitted)). Here, the Citizens have

failed to negate the conceivable set of facts providing the rational basis for the

classification — the different procedural means by which a CUP decision reaches

the circuit court. Although this classification might not be “made with

mathematical nicety” and “in practice [may result] in some inequality,” see Lindsley

v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S. Ct. 337, 340, 55 L. Ed. 369

(1911), there is a plausible reason for the differing standards of review and thus

“our inquiry is at an end.” See United States R.R. Ret. Bd. v. Fritz, 449 U.S. 166,

179, 101 S. Ct. 453, 461, 66 L. Ed. 2d 368 (1980); see also In re Certain Territorial

Elec. Boundaries (Mitchell Area) F–3105, 281 N.W.2d 65, 71 (S.D. 1979).

[¶19.]       We nonetheless address the second prong: whether a rational

relationship exists between the legitimate legislative purpose and the

classifications. The Citizens insist that a fundamental right is at stake because the

board’s decision implicated a property right and a right to access the courts. On the

contrary, the issue before us is the statutory scheme governing CUP decisions, and

therefore, the Citizens’ constitutional question does not involve a fundamental

right. See Lindsey v. Normet, 405 U.S. 56, 77, 92 S. Ct. 862, 876, 31 L. Ed. 2d 36

(1972) (no constitutional right to appellate review). Because a fundamental right is
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not involved, we need only determine “whether a rational relationship exists

between a legitimate legislative purpose and the classifications created.” See Davis,

2004 S.D. 70, ¶ 5, 681 N.W.2d at 454. It is a legitimate legislative purpose to create

different procedural means by which certain county authorities manage proceedings

before them. This is not a case like Metropolitan Associates where Wisconsin

enacted a statute giving counties the authority to decide what standard of review

would be applied to landowner challenges of CUP decisions. 796 N.W.2d at 724.

Rather, our case involves separate and distinct county procedures before different

county government bodies, where dissimilar circumstances result in different

standards of review at the circuit court level. We conclude that there is a rational

relationship between a legitimate legislative purpose and the classifications.

             2. Validity of Zoning Ordinance Creating the Board of

             Adjustment

[¶20.]       The Citizens contend that Moody County did not properly establish its

board of adjustment because the county failed to validly enact its zoning ordinances

in 2003, when it did not hold two separate hearings as required by SDCL 11-2-18

through SDCL 11-2-20. Because of this failure, the Citizens aver that all action

taken since 2003 by the Moody County Board of Adjustment is void, including its

approval of Mustang’s CUP.

[¶21.]       Moody County responds that it complied with SDCL chapter 11-2 in

2003 when it adopted its zoning ordinances. It concedes that it did not hold two

separate and distinct hearings, but asserts that nothing in chapter 11-2 required

separate and distinct hearings. Because the planning commission and board of

county commissioners each gave ten-days’ notice of the public hearings, held the
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public hearings, and adopted the 2003 zoning ordinances, Moody County maintains

that the 2003 ordinances were validly enacted.

[¶22.]       We will sustain Moody County’s actions “unless it did some act

forbidden by law or neglected to do some act required by law.” See Armstrong, 2009

S.D. 81, ¶ 12, 772 N.W.2d at 648 (citations omitted). 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.

Then, 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.

[¶23.]       Here, it is undisputed that the planning commission held a public

hearing on the proposed ordinances, before which it gave ten-days’ notice and after

which it submitted its recommendation to the board of commissioners. It is further

undisputed that after receiving the recommendation from the planning commission,

the board of commissioners held a hearing on the respective zoning ordinances.

Although the board of commissioners gave notice of its hearing before receiving the

planning commission’s recommendation, nothing in SDCL 11-2-19 mandates that

the board wait to give notice until after it receives the planning commission’s

recommendation. Based on our review of the record, therefore, the board of



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adjustment’s approval of Mustang’s CUP is not void because of the procedure Moody

County followed in enacting its 2003 ordinances.

[¶24.]       Nonetheless, the Citizens argue that even if the zoning ordinances

were validly enacted in 2003, the zoning ordinances giving the board of adjustment

the power to hear and consider CUPs were adopted prematurely, because Moody

County did not have specific legislative authority in February 2003 to give a board

of adjustment power to hear and consider CUP applications. They point out that it

was not until July 1, 2003, after the Legislature amended SDCL 11-2-53 and gave

boards of adjustment authority to hear CUPs, that Moody County could enact an

ordinance empowering the board of adjustment. See 2003 S.D. Sess. Laws ch. 78, §

2 (amending SDCL 11-2-53). Since July 1, 2003 was after February 23, 2003, the

Citizens maintain that Moody County’s zoning ordinance was not validly created,

and therefore, any action taken by the board of adjustment, including its approval

of Mustang’s CUP, is void ab initio.

[¶25.]       A county is a creature of statute and has “only such powers as are

expressly conferred upon it by statute and such as may be reasonably implied from

those expressly granted.” State v. Quinn, 2001 S.D. 25, ¶ 10, 623 N.W.2d 36, 38

(quoting State v. Hansen, 75 S.D. 476, 68 N.W.2d 480, 481 (1955)). Article IX,

section 2 of the South Dakota Constitution provides that counties have the

authority to “exercise any legislative power or perform any function not denied by

its charter, the Constitution or general laws of the state.” In particular, SDCL 7-

18A-2 gives a county the authority to adopt ordinances “as may be proper and

necessary to carry into effect the powers granted to it by law . . . .” Yet a county

may not enact an ordinance that conflicts with state law. SDCL 6-12-5; Rantapaa
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v. Black Hills Chairlift Co., 2001 S.D. 111, ¶ 23, 633 N.W.2d 196, 203. A conflict

exists if (1) the county ordinance prohibits the same act forbidden by state law (the

ordinance is void to the extent it is duplicative), (2) a conflict exists between state

law and an ordinance, or (3) state law occupies the field to the exclusion of all local

regulation. Rantapaa, 2001 S.D. 111, ¶ 23, 633 N.W.2d at 203.

[¶26.]       From our review of Moody County’s 2003 ordinances and the statutory

scheme governing boards of adjustment, we conclude that Moody County’s

ordinance was not void ab initio. The Citizens have not established that the

ordinance prohibited an act forbidden by state law, created a conflict between state

law and the ordinance, or encroached upon a field occupied by state law to the

exclusion of all local regulation. See id. In enacting the ordinance, Moody County

deemed it necessary to create a board of adjustment to hear and consider CUPs.

See SDCL 7-18A-2. While, on February 23, 2002, SDCL 11-2-53 did not specifically

give boards of adjustment the authority to consider CUPs, there was nothing in

SDCL chapter 11-2 (2003) to suggest that the Legislature intended a board of

adjustment to have only appellate jurisdiction. That a board of adjustment’s powers

then extended beyond appellate matters is evidenced in SDCL 11-2-59 (2003), which

provided, in part, that a board of adjustment may “decide in favor of the applicant

on any matter upon which it is required to pass under any such ordinance[.]”

(Emphasis added.) Finally, there is no evidence that in 2003 the Legislature

intended to occupy the field of CUPs to the exclusion of all local regulation. Contra

In re Yankton Cnty. Comm’n, 2003 S.D. 109, ¶ 21, 670 N.W.2d 34, 41 (Legislature

intended to fully occupy the field of appeals of county zoning decisions). In fact,

mere months after Moody County’s ordinance went into effect, the Legislature
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amended SDCL 11-2-53 to give boards of adjustment specific statutory authority to

consider certain conditional uses. And today, through SDCL 11-2-17.3, the

Legislature has placed the power in counties to choose the approving authority for

CUPs.

            3. Original Jurisdiction

[¶27.]      The Citizens next contend that although SDCL 11-2-17.3 gives Moody

County the power to designate the approving authority for a CUP application, “[t]he

phrase ‘board of adjustment’ appears nowhere in SDCL 11-2-17.3,” which means the

Moody County Board of Adjustment could only act as an appellate body of county

government under SDCL chapter 11-2. In its entirety, SDCL 11-2-17.3 provides:

            A county zoning ordinance adopted pursuant to this chapter that
            authorizes a conditional use of real property shall specify the
            approving authority, each category of conditional use requiring
            such approval, the zoning districts in which a conditional use is
            available, and the criteria for evaluating each conditional use.
            The approving authority shall consider the stated criteria, the
            objectives of the comprehensive plan, and the purpose of the
            zoning ordinance and its relevant zoning districts when making
            a decision to approve or disapprove a conditional use request.

This statute directed Moody County to specify the approving authority for allowing

conditional uses of real property. Here, Moody County adopted an ordinance that

created a board of adjustment and empowered the board of adjustment to hear and

consider CUPs as the approving authority. The Citizens’ claim is without merit and

neither Moody County nor the board acted in excess of its authority when the board

exercised original jurisdiction over Mustang’s CUP application.

            4. Regularity of the Board’s Procedures

[¶28.]      “Our consideration of a matter presented on certiorari is limited to

whether the board of adjustment had jurisdiction over the matter and whether it
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pursued in a regular manner the authority conferred upon it. A board’s actions will

be sustained unless it did some act forbidden by law or neglected to do some act

required by law.” Armstrong, 2009 S.D. 81, ¶ 12, 772 N.W.2d at 648 (citations

omitted). The Citizens seek reversal of the board of adjustment’s decision to grant

Mustang’s CUP because they allege that the board failed to adopt rules as required

by SDCL 11-2-54, and one board member was not a resident of Moody County when

the board voted to approve Mustang’s CUP. On these issues, the circuit court, in its

findings of fact, wrote: “At the oral hearing in front of this Court, counsel for

Petitioners conceded that, assuming arguendo, the zoning ordinance is valid, there

were no procedural or substantive due process violations as they pertain to the BOA

proceedings.” The Citizens did not object to the circuit court’s findings of fact and

conclusions of law nor propose findings and conclusions of their own. Although we

would, therefore, limit our review to whether the court’s findings of fact support its

conclusions of law, there are no specific findings to review. See Premier Bank, N.A.

v. Mahoney, 520 N.W.2d 894, 895 (S.D. 1994) (quoting Huth v. Hoffman, 464

N.W.2d 637, 638 (S.D. 1991)). Without such findings, or an objection by the

Citizens, a meaningful review by this Court is not possible.

[¶29.]       Affirmed.

[¶30.]       GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and

WILBUR, Justices, concur.




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