#26792-a-JKK

2014 S.D. 35

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

                                      ****
SAVE OUR NEIGHBORHOOD —
SIOUX FALLS; BONITA SCHWAN;
DAN WRAY; GALE WRAY; RICHARD
V. WILKA; MITCHELL ARENDS;
ERIN ARENDS; REBEKKA KLEMME;
NEIL KLEMME; DANA VAN BEEK
PALMER; ANNE RASMUSSEN;
and DUANE O’CONNELL,                         Petitioners and Appellants,

      v.

CITY OF SIOUX FALLS; and
the SIOUX FALLS CITY COUNCIL,                Respondents and Appellees.

                                      ****

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE SECOND JUDICIAL CIRCUIT
                  MINNEHAHA COUNTY, SOUTH DAKOTA

                               ****
                    THE HONORABLE STUART L. TIEDE
                               Judge
                                      ****

RONALD A. PARSONS, JR.
PAMELA R. BOLLWEG of
Johnson, Heidepriem & Abdallah, LLP
Sioux Falls, South Dakota                    Attorneys for petitioners
                                             and appellants.

JAMES E. MOORE
BLAYNE N. HAGEN of
Woods, Fuller, Shultz & Smith, PC
Sioux Falls, South Dakota                    Attorneys for respondents
                                             and appellees.

                                      ****
                                             ARGUED ON APRIL 29, 2014
                                             OPINION FILED 06/18/14
#26792

KONENKAMP, Justice

[¶1.]         Landowner members of “Save Our Neighborhood” seek to invalidate an

annexation resolution adopted by the City of Sioux Falls under SDCL 9-4-1,

annexing property to be developed for a Walmart store. Located in Lincoln County,

the land is unplatted and zoned for agricultural use. Its owner voluntarily

petitioned for its annexation to Sioux Falls. Save Our Neighborhood contends that

the City failed to obtain approval from the Lincoln County Board of County

Commissioners under SDCL 9-4-5. The circuit court denied writs of certiorari and

prohibition, ruling that SDCL 9-4-5 did not apply to a resolution adopted under

SDCL 9-4-1.

                                    Background

[¶2.]         On January 22, 2013, Springdale Development, LLC petitioned the

City of Sioux Falls to annex its property under SDCL 9-4-1. Unplatted and zoned

for agricultural use in Lincoln County, Springdale’s 39 acres lie contiguous to the

City. As part of its standard practice, the City notified Lincoln County of

Springdale’s request and asked for comment. Lincoln County submitted no

comment. In April 2013, the City adopted Resolution No. 25-13 to annex

Springdale’s real property. The City filed the approved resolution with the Lincoln

County Register of Deeds, but did not seek approval from the Lincoln County Board

of County Commissioners.

[¶3.]         In July 2013, eleven landowners, neighbors to Springdale’s property,

joined as “Save Our Neighborhood” and petitioned the circuit court for writs of

prohibition and certiorari. They sought to invalidate the City’s annexation


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resolution and to prohibit the City from rezoning the property to allow a Walmart

store. Save Our Neighborhood asserted that SDCL 9-4-5 required the City to obtain

approval from the Lincoln County Board of County Commissioners before legally

adopting a resolution to annex Springdale’s unplatted agricultural land.

[¶4.]        At the hearing before the circuit court, Chief Planning and Zoning

Official Jeff Schmitt and City Attorney Dave Pfeifle testified. The parties also

submitted a statement of stipulated facts. At the conclusion of the hearing, the

court denied Save Our Neighborhood’s petitions. It ruled that SDCL 9-4-5 was

ambiguous and thus relied on legislative history to conclude that the Legislature

intended SDCL 9-4-5 to apply only to a city-initiated annexation under SDCL 9-4-

4.2.

[¶5.]        Save Our Neighborhood appeals asserting that the circuit court erred

in its interpretation of SDCL 9-4-5 and in its denial of the petitions for writs of

prohibition and certiorari. “Our review of certiorari proceedings is limited to

whether the challenged court, officer, board, or tribunal had jurisdiction and

whether it regularly pursued its authority.” Esling v. Krambeck, 2003 S.D. 59, ¶ 6,

663 N.W.2d 671, 675 (citation omitted). We review the circuit court’s interpretation

of a statute de novo. Id. (citing Ridley v. Lawrence Cnty. Comm’n, 2000 S.D. 143, ¶

5, 619 N.W.2d 254, 257).

                               Analysis and Decision

[¶6.]        Save Our Neighborhood argues that SDCL 9-4-5 applies to all

resolutions for annexation, and therefore, the City exceeded its jurisdiction and

acted in irregular pursuit of its authority when it passed Resolution No. 25-13 to


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annex Springdale’s Lincoln County property without first obtaining approval from

the Lincoln County Board of County Commissioners. SDCL 9-4-5 provides, in part,

that “[n]o such resolution describing unplatted territory therein may be adopted

until it has been approved by the board of county commissioners of the county

wherein such unplatted territory is situate.” Springdale’s property was unplatted

at the time Springdale petitioned for annexation, and it is undisputed that the City

did not obtain approval from the Lincoln County Board of County Commissioners

before adopting Resolution No. 25-13. Quoting this Court’s oft-repeated maxim that

“[t]he intent of a statute is determined from what the Legislature said, rather than

what we think it should have said,” Save Our Neighborhood contends that because

the plain language of SDCL 9-4-5 does not distinguish between landowner-initiated

or city-initiated actions for annexation, the City was required to comply with SDCL

9-4-5.

[¶7.]        The City, on the other hand, asserts that the word “such” in SDCL 9-4-

5 makes the statute ambiguous. It is ambiguous, the City argues, because “such” is

a demonstrative adjective that must refer to an antecedent, but there is no

antecedent within SDCL 9-4-5. Directing us to the legislative history related to

SDCL chapter 9-4, the City maintains that the Legislature intended SDCL 9-4-5 to

apply only to a city-initiated action for annexation under SDCL 9-4-4.2.

[¶8.]        Our interpretation of a statute is confined to the language used by the

Legislature. See In re Estate of Gossman, 1996 S.D. 124, ¶ 10, 555 N.W.2d 102, 106

(citations omitted). “Words and phrases in a statute must be given their plain

meaning and effect. When the language in a statute is clear, certain, and


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unambiguous, there is no reason for construction, and [this] Court’s only function is

to declare the meaning of the statute as clearly expressed.” Dep’t of Transp. v.

Clark, 2011 S.D. 20, ¶ 5, 798 N.W.2d 160, 162 (alteration in original) (citation

omitted). Accordingly, “[a] court is not at liberty to read into the statute provisions

which the Legislature did not incorporate, or enlarge the scope of the statute by an

unwarranted interpretation of its language.” In re Adams, 329 N.W.2d 882, 884

(S.D. 1983) (citation omitted).

[¶9.]        Because legislative “[i]ntent must be determined from the statute as a

whole, as well as enactments relating to the same subject,” we begin by looking at

the structure of chapter 9-4. See Wiersma v. Maple Leaf Farms, 1996 S.D. 16, ¶ 4,

543 N.W.2d 787, 789 (citations omitted). Under SDCL 9-4-1, a landowner may

voluntarily request, by petition, that the governing body of a municipality adopt a

resolution to annex property contiguous to that municipality. The petition must be

“signed by not less than three-fourths of the registered voters and by the owners of

not less than three-fourths of the value of the territory sought to be annexed to the

municipality.” Id.

[¶10.]       Another means to annex property is provided in SDCL 9-4-4.1: “Except

as provided by § 9-4-1, before a municipality may extend its boundaries to include

contiguous territory, the governing body shall conduct a study to determine the

need for the contiguous territory and to identify the resources necessary to extend

the municipal boundaries.” Based on the results of the study, SDCL 9-4-4.2 gives a

governing body authority to “adopt a resolution of intent to extend its boundaries.”

This action is commonly referred to as a “city-initiated” or “involuntary” annexation.


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The statute dictates what information the resolution of intent must contain, and

SDCL 9-4-4.3 requires that before the adoption of the resolution of intent, the

governing body must give notice and hold a hearing in compliance. After a

resolution of intent is adopted, SDCL 9-4-4.4 requires the governing body to hold

another hearing, at which “[t]he governing body shall consider any objections to the

resolution of annexation and the adopted resolution of intent[.]” Thereafter, the

governing body “may adopt the resolution of annexation[.]” Id.

[¶11.]       The next sections, SDCL 9-4-4.5 through SDCL 9-4-4.9, deal with the

right to submit the resolution of annexation to a vote for its rejection or approval.

And SDCL 9-4-4.10 gives “[a]ny person of the annexed area” a right “to compel

performance of any aspect of the resolution of intent or the resolution of

annexation[.]” SDCL 9-4-4.11 governs a resolution of intent by a small

municipality.

[¶12.]       SDCL 9-4-5 — the statute at issue here — is entitled, “Annexation of

unplatted territory subject to approval by county commissioners.” It states:

             No such resolution describing unplatted territory therein may be
             adopted until it has been approved by the board of county
             commissioners of the county wherein such unplatted territory is
             situate. For the purposes of this section, unplatted territory is
             any land which has not been platted by a duly recorded plat or
             any agricultural land as defined in § 10-6-31.

The next several sections, SDCL 9-4-6 through SDCL 9-4-10, relate to a petition for

exclusion of a territory from a municipality. Then, SDCL 9-4-11 governs the

recording of a resolution “[w]henever the limits of any municipality are changed[.]”

The remaining statutes, not relevant to this case, deal with the annexation of

territory near a municipal airport. See SDCL 9-4-12 to -14.

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[¶13.]       Looking at the structure of chapter 9-4 as a whole and, in particular,

the words used by the Legislature in SDCL 9-4-5, it is unclear whether the

Legislature intended SDCL 9-4-5 to apply both to voluntary and city-initiated

actions to annex unplatted territory. There are two means by which a governing

body can annex property by resolution — on its own initiative under SDCL 9-4-4.2

or upon a landowner’s petition under SDCL 9-4-1. Yet nowhere in SDCL chapter 9-

4 does the Legislature connect the restriction in SDCL 9-4-5. This is problematic

because the first phrase of SDCL 9-4-5 — “[s]uch resolution” — suggests that the

Legislature had in mind a specific resolution. That the language “such resolution”

is ambiguous is further supported by the fact that within SDCL chapter 9-4 there

are three types of resolutions discussed. The first is simply a “resolution,” which

may be adopted by the governing body upon a petition for annexation by a

landowner. See SDCL 9-4-1. The next is a “resolution of intent,” which stems from

a city’s action to annex property and is adopted after a governing body conducts a

study and holds a hearing. See SDCL 9-4-4.2, -4.3. The third is a “resolution of

annexation,” which can be adopted by a governing body after the adoption of a

resolution of intent and after a hearing. See SDCL 9-4-4.4.

[¶14.]       Because SDCL 9-4-5 refers to “[s]uch resolution,” and because there

are three resolutions discussed in SDCL chapter 9-4, we cannot simply declare the

meaning of SDCL 9-4-5 from what the Legislature said. Rather, we must invoke

our rules of statutory construction and turn to legislative history to ascertain the

intent of the Legislature. See Slama v. Landmann Jungman Hosp., 2002 S.D. 151,

¶ 7, 654 N.W.2d 826, 828 (citation omitted).


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[¶15.]       Since at least 1887, landowners and municipalities could initiate the

annexation of property. 1887 Territorial Code. In 1919, the Legislature provided

three methods for municipal annexation: (1) including territory by a petition, which

must be “signed by not less than three-fourths of the legal voters and by the owner

or owners of not less than three-fourths in value of any territory contiguous to any

municipal corporation,” (2) including platted ground without a petition, which

territory a governing body could include by adopting a resolution, and (3) including

unplatted ground without a petition, for which territory the governing body must

present a petition to the county commissioners. 1919 S.D. Rev. Code §§ 6559-6561.

There was no condition within the 1877 Territorial Code or the 1919 Revised Code

requiring a governing body to obtain approval from the board of county

commissioners where such unplatted territory was located. This same statutory

framework was carried over into the 1939 South Dakota Code and continued until

1955. See S.D. Code §§ 45.2905-.2907 (1939).

[¶16.]       In 1955, the Legislature repealed Section 45.2907, related to the

annexation of unplatted territory without a petition, and amended Section 45.2906.

1955 S.D. Sess. Laws ch. 215, §§ 1, 3. These changes were significant. The

Legislature amended Section 45.2906 to cover both platted and unplatted

territories, so that “[w]henever there shall be territory either platted or unplatted

adjoining any municipality, the governing body may by resolution so extend the

boundary of such municipality as to include such territory, in the following manner:

. . . .” 1955 S.D. Sess. Laws ch. 215, § 1 (emphasis added). But, as it related to

unplatted territory, the Legislature added the restriction that “[n]o such resolution


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describing unplatted territory therein shall be adopted until the same has been

approved by the board of county commissioners of the county wherein such

unplatted territory is situate.” See id. (emphasis added). From the language of

Section 45.2906 it is clear that by using “such resolution,” the Legislature was

referring to the resolutions of Section 45.2906, which were only city-initiated. This

restrictive language in Section 45.2906 is the same as that found in SDCL 9-4-5

today.

[¶17.]       In 1967, the Legislature amended the code again. The provisions on

the annexation of property were placed in SDCL Title 9, and the sections from the

1939 Code were broken into:

             SDCL 9-4-1 Annexation of contiguous territory on petition by
             voters and landowners.
             SDCL 9-4-2 Annexation authorized without petition.
             SDCL 9-4-3 Resolution of intention to annex without petition.
             SDCL 9-4-4 Publication of resolution of intention — Hearing
             and adoption by governing body.
             SDCL 9-4-5 Annexation of unplatted territory subject to
             approval by counting commissioners.

Notably, SDCL 9-4-2 (city-initiated annexation), and not SDCL 9-4-1 (voluntary

annexation), specifically required the governing body to comply with SDCL 9-4-5,

further reinforcing the notion that the Legislature intended SDCL 9-4-5 to apply

only to city-initiated resolutions for annexation.

[¶18.]       In 1979, the Legislature revised “the process of municipal annexation”

and extended “the referral power to residents of the annexed area.” 1979 S.D. Sess.

Laws ch. 47. This revision repealed SDCL 9-4-2, SDCL 9-4-3, and SDCL 9-4-4,

which eliminated the provision that connected SDCL 9-4-5 to a city-initiated

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annexation action. 1979 S.D. Sess. Laws ch. 47, §§ 13-15. Yet the Legislature did

not repeal SDCL 9-4-5, nor did it enact legislation within chapter 9-4 connecting

SDCL 9-4-5 to a city-initiated action for annexation. In 1982, the Legislature

amended SDCL 9-4-5 to “define unplatted territory for the purpose of municipal

annexation[.]” 1982 S.D. Sess. Laws ch. 71. This amendment, however, did not

change the statutory language referring to “[s]uch resolution[.]”

[¶19.]       Save Our Neighborhood contends that language from one of our

decisions supports its position. In 2003, in a case involving a voluntary petition for

annexation under SDCL 9-4-1, this Court was asked to determine, among other

things, whether the value of the property to be annexed was correctly determined

and whether the property was contiguous. Esling, 2003 S.D. 59, 663 N.W.2d 671.

Although SDCL 9-4-5 was not specifically at issue, we cited this statute and wrote,

“Municipal annexation is subject to approval by the county commissioners if the

territory is unplatted, as it was in this case.” Id. ¶ 26. Relying on this sentence,

Save Our Neighborhood argues that this Court interpreted SDCL 9-4-5 and

determined that it applies to a voluntary petition under SDCL 9-4-1. Yet, in Esling,

when we cited SDCL 9-4-5, we were addressing whether the city had the power to

zone territory contrary to a zoning ordinance when that property is annexed. 2003

S.D. 59, ¶ 26, 663 N.W.2d at 680. We did not interpret or construe SDCL 9-4-5 in

resolving that issue, and therefore, this sentence provides no guidance in this case.

[¶20.]       From a review of the plain language of the statute, the legislative

history, and prior precedent, we conclude that the Legislature did not intend SDCL

9-4-5 to apply to a resolution adopted for a voluntary petition for annexation under


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SDCL 9-4-1. The original statutory language was part of and connected to a city-

initiated action for annexation. See S.D. Code § 45.2906 (1967). And although the

Legislature did not clearly and unambiguously connect SDCL 9-4-5 to SDCL 9-4-4.2

when it overhauled the laws on municipal annexation, we said long ago that “[i]n

case of doubt and uncertainty as to the meaning of a provision of a compiled or

revised statute, its true meaning may properly be ascertained by resort to the act

from which the provision was derived, and particularly is this rule applicable where

it is not subject to a fair construction without consultation of the original statute.”

See Lewis v. Annie Creek Mining Co., 74 S.D. 26, 34, 48 N.W.2d 815, 819 (1951).

Indeed, “[r]evised or consolidated statutes will be construed as bearing the same

meaning as the original statutes or sections unless the language of the revision or

consolidation plainly requires a change of construction to conform to the manifest

intent of the Legislature.” Id. at 35, 48 N.W.2d at 820; see also New Era Mining Co.

v. Dakota Placers, Inc., 1999 S.D. 153, ¶ 10, 603 N.W.2d 202, 205. Here, the

original meaning of the language in SDCL 9-4-5 was that a city must obtain

approval from the board of county commissioners when a city initiates an

annexation action, and nothing in the revised statutory framework suggests a

change of construction. The circuit court did not err when it denied Save Our

Neighborhood’s writs of certiorari and prohibition.

[¶21.]       Affirmed.

[¶22.]       GILBERTSON, Chief Justice, and ZINTER and SEVERSON, Justices,

and JOHNSON, Circuit Court Judge, concur.




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[¶23.]          JOHNSON, Circuit Court Judge, sitting for WILBUR, Justice,

disqualified.




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