Hauck v. Clay County Commission

#30001- aff in pt & rev in pt -SPM
2023 S.D. 43

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

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MICHELLE L. HAUCK, Petitioner and Appellant,

v.

CLAY COUNTY COMMISSION,
Richard Hammond, in his capacity as
Clay County Commissioner, Travis
Mocker, in his capacity as Clay
County Commissioner, Elizabeth Smith,
in her capacity as Clay County
Commissioner, Phyllis Packard, in her
capacity as Clay County Commissioner,
and Michael Manning, in his capacity as
Clay County Commissioner, Respondents and Appellees.

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APPEAL FROM THE CIRCUIT COURT OF
THE FIRST JUDICIAL CIRCUIT
CLAY COUNTY, SOUTH DAKOTA

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THE HONORABLE TAMI BERN
Judge
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WANDA HOWEY-FOX of
Harmelink & Fox Law Office, P.C.
Yankton, South Dakota Attorneys for petitioner and
appellant.

JAMES S. SIMKO of
Cadwell, Sanford, Deibert & Garry, LLP
Sioux Falls, South Dakota Attorneys for respondents
and appellees.

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CONSIDERED ON BRIEFS
FEBRUARY 15, 2023
OPINION FILED 08/09/23
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MYREN, Justice

[¶1.] Michelle Hauck sought writs of mandamus and certiorari from the

circuit court to reverse the Clay County Board of Adjustment’s (Board of

Adjustment) affirmance of the Clay County Planning Commission’s (Planning

Commission) denial of Hauck’s proposed conditional use permit (CUP). The circuit

court concluded Hauck’s petition for writ of certiorari was untimely and that a writ

of mandamus was not a remedy available to Hauck to challenge a Board of

Adjustment’s denial of a CUP. We reverse and remand the dismissal of the writ of

certiorari as untimely but affirm the denial of the writ of mandamus.

Factual and Procedural History

[¶2.] On July 9, 2021, Hauck applied for a CUP in Clay County “to build a

campground recreational facility[.]” Her initial application proposed a campground

consisting of 408 camping sites. On August 30, 2021, Drew Gunderson, the Clay

County Planning and Zoning Administrator, presented Hauck’s application to the

Planning Commission at a public hearing. At this meeting, Hauck’s attorney

offered “a more fleshed out plan” to assuage concerns expressed by the Planning

Commission. 1 In response, the Planning Commission tabled the CUP application.

1. In his affidavit, Gunderson described the Planning Commission’s meeting on
August 30, 2021, as follows:

At said meeting the planning commission voted to table
determination on the CUP application until the next meeting,
along with consent of Petitioner, as is reflected in the minutes.
The issue was tabled in part to allow time to review whether
Petitioner could amend her CUP application.
4) Following the August 30, 2021 meeting, a second site plan
was submitted by Petitioner on September 21, 2021.
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At their next meeting on September 27, 2021, the Planning Commission denied

Hauck’s CUP application. Hauck appealed this denial to the Clay County

Commission, which was sitting as the Board of Adjustment. Before the Board of

Adjustment, Hauck argued that because the Planning Commission did not issue a

decision within 65 days of filing her CUP application, the CUP application was

deemed approved under SDCL 11-2-24.1. 2 The Board of Adjustment unanimously

affirmed the Planning Commission’s denial of the CUP. The settled record does not

establish that the Board of Adjustment’s decision was filed with the office of the

Board of Adjustment. 3 On February 7, 2022, Hauck requested the circuit court to

issue a writ of certiorari and a writ of mandamus.

[¶3.] On April 13, 2022, the circuit court heard arguments regarding

Hauck’s requested writs. Hauck argued that because 79 days elapsed between the

time she filed her application for a CUP and the Planning Commission’s decision

denying it, the application was deemed approved under SDCL 11-2-24.1. The Board

of Adjustment responded that the writ of certiorari was untimely under SDCL 11-2-

2. SDCL 11-2-24.1 provides:

The failure of the planning commission to act within sixty-five
days from and after the date of official submission to it under
the provisions of § 11-2-24, shall be deemed approval, unless a
longer period be granted by the board or other submitting
official.

3. The settled record contains an affidavit from the Clay County Auditor in
which she states that the Board of County Commissioners acting as the
Board of Adjustment denied Hauck’s appeal. She attached minutes from the
Board of Adjustment meeting to her affidavit. Her affidavit does not contain
any statement regarding the filing of the decision in the office of the Board of
Adjustment.
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61 because it was filed “beyond 30 days from the time that [the Board of

Adjustment’s decision] was filed or served on the parties.” As to the writ of

mandamus, the Board of Adjustment argued that it is not “an appropriate remedy

to this situation.”

[¶4.] Concerning the writ of certiorari, the circuit court concluded it did not

have jurisdiction under SDCL 11-2-61 because the petition was filed more than 30

days after the Board of Adjustment’s decision. Concerning the writ of mandamus,

the circuit court concluded that remedy was unavailable because SDCL 11-2-61.1

provides that a writ of certiorari is the exclusive means to challenge a decision to

grant or deny a CUP. The circuit court entered an order denying both writs and

dismissing the matter. The Board of Adjustment gave notice of entry of this order.

Hauck filed a timely notice of appeal to this Court. 4

Decision

1. Whether the circuit court erred in determining the
petition for writ of certiorari was untimely.

[¶5.] SDCL 11-2-61 sets forth the requirements for invoking a court’s

jurisdiction to review a petition for writ of certiorari.

Any person . . . aggrieved by any decision of the board of
adjustment 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

4. The Board of Adjustment argues, for the first time on appeal, that a “ground
for dismissal is [Hauck’s] failure to name the property [sic] party—the Board
of Adjustment.” “Arguments not raised at the trial level are deemed waived
on appeal.” State v. Hi Ta Lar, 2018 S.D. 18, ¶ 17 n.5, 908 N.W.2d 181, 187
n.5 (citing Supreme Pork, Inc. v. Master Blaster, Inc., 2009 S.D. 20, ¶ 12 n.5,
764 N.W.2d 474, 480 n.5); See Long v. State, 2017 S.D. 79, ¶ 19, 904 N.W.2d
502, 510 (“an issue may not be raised for the first time on appeal”). As a
result, this argument is waived, and we do not address it.
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be a petition for writ of certiorari presented to the court within
thirty days after the filing of the decision in the office of the board
of adjustment. The board of adjustment shall respond to the
petition within thirty days of receiving the notice of the filing
and shall simultaneously submit the complete record of
proceedings of the board appealed from, in the form of a return
on a petition for writ, without need for a court order or formal
issuance of writ.

SDCL 11-2-61 (emphasis added).

[¶6.] “This [C]ourt has consistently recognized that the right to an
appeal is purely 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.” “We review issues regarding a [c]ourt’s
jurisdiction as questions of law under the de novo standard of
review.”

Hyde v. Sully Cnty. Bd. of Adjustment, 2016 S.D. 65, ¶ 5, 886 N.W.2d 355, 357

(alterations in original) (citation omitted) (quoting Elliot v. Bd. of Cnty. Comm’rs of

Lake Cnty., 2007 S.D. 6, ¶ 9, 727 N.W.2d 288, 289). “In construing a statute, our

purpose is to discover the true intention of the law and that intention must be

ascertained primarily from the language expressed in the statute. The intent of the

law must be derived from the statute as a whole and by giving the statutory

language its plain, ordinary and popular meaning.” State v. Ventling, 452 N.W.2d

123, 125 (S.D. 1990) (citation omitted) (citing Am. Rim & Brake, Inc. v. Zoellner,

382 N.W.2d 421 (S.D. 1986)). “Questions of law concerning statutory construction

are reviewed de novo.” Dale v. Young, 2015 S.D. 96, ¶ 5, 873 N.W.2d 72, 73 (quoting

In re W. River Elec. Ass’n, Inc., 2004 S.D. 11, ¶ 14, 675 N.W.2d 222, 226). “Under

the de novo standard of review, no deference is given to the circuit court’s

conclusions of law.” Good Lance v. Black Hills Dialysis, LLC, 2015 S.D. 83, ¶ 9, 871

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N.W.2d 639, 643 (citing Stehly v. Davison Cnty., 2011 S.D. 49, ¶ 7, 802 N.W.2d 897,

899).

[¶7.] The circuit court determined that it did not have jurisdiction to

consider the writ of certiorari because “the petition was presented to [the circuit

court] . . . more than 30 days after the Board of Adjustment’s decision.” (Emphasis

added.) “The statute [SDCL 11-2-61] clearly provides that the time for appeal

begins to run upon the filing of the decision.” Hyde, 2016 S.D. 65, ¶ 6, 886 N.W.2d

at 357 (emphasis added). The settled record does not demonstrate that the Board of

Adjustment’s decision was filed in the “office of the board of adjustment.” The

Board of Adjustment asserts that the approval of the Board of Adjustment’s

meeting minutes qualifies as “filing” under the statute. However, neither the record

nor the court’s findings support this assertion.

[¶8.] The provisions of SDCL 11-2-52 impose a specific obligation on the

board of adjustment to “immediately file[]” its minutes “in the office of the board of

adjustment,” which “ are public records.” In Hyde, the record established that in

Sully County, the planning and zoning office served as the county office of the board

of adjustment for filing purposes. Hyde, 2016 S.D. 65, ¶ 6, 886 N.W.2d at 357.

Here, it is unclear from the record of this case whether there is a similar designated

office for filing Clay County Board of Adjustment decisions.

[¶9.] In Clay County, the county commission serves as the Board of

Adjustment. The county auditor is the clerk of the board of county commissioners

and “shall keep an accurate record of its official proceedings[.]” SDCL 7-10-1.

Consequently, it is logical that the Clay County auditor would perform those same

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duties for the county commission when acting as the Board of Adjustment. Still, we

cannot state with certainty that the auditor’s office also serves as the Board of

Adjustment’s office. Nor does the record establish if or when the auditor filed the

minutes reflecting the Board of Adjustment’s decision on Hauck’s CUP and whether

the minutes are maintained as a public record. Instead, the Clay County Auditor’s

affidavit only establishes that the Clay County Commission acting as the Board of

Adjustment denied Hauck’s CUP application and later approved the written

minutes of that meeting.

[¶10.] “The court’s authority to act in a particular class of cases ‘is conferred

solely by constitutional or statutory provisions[,]’ and it cannot be ‘conferred on a

court [or] denied to a court by the acts of the parties or the procedures they

employ.’” Huber v. Hanson Cnty. Plan. Comm’n, 2019 S.D. 64, ¶ 11, 936 N.W.2d

565, 569 (alterations in original) (quoting Bingham Farms Tr. v. City of Belle

Fourche, 2019 S.D. 50, ¶ 12, 932 N.W.2d 916, 919). Under SDCL 11-2-61, the

thirty-day time to file an appeal to the circuit court of a decision by the Board of

Adjustment begins to run upon the “filing” of that decision. Because we cannot

determine from the settled record whether or when the Board’s decision was filed,

we cannot determine whether the circuit court had jurisdiction to act in this case.

We reverse the circuit court’s decision dismissing the petition for writ of certiorari

and remand for further proceedings to determine the jurisdictional question of

whether Hauck’s petition was timely filed.

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2. Whether a writ of mandamus under SDCL 11-2-35 is
an available remedy under the circumstances of this
case.

[¶11.] “A writ of mandamus is appropriate only when there is not a plain,

speedy, and adequate remedy in the ordinary course of law.” Jensen v. Lincoln

Cnty. Bd. of Comm’rs, 2006 S.D. 61, ¶ 5, 718 N.W.2d 606, 608 (citing Black Hills

Cent. R.R. Co. v. City of Hill City, 2003 S.D. 152, ¶ 12, 674 N.W.2d 31, 34). This

threshold inquiry is a question of law reviewed by this Court under the de novo

standard of review. Springer v. Black, 520 N.W.2d 77, 79 (S.D. 1994) (“We review

questions of law de novo”); see Jensen, 2006 S.D. 61, ¶ 5, 718 N.W.2d at 608 (“the

threshold question . . . is whether a mandamus action was available to [petitioner]”;

we analyzed this question without deference to the circuit court’s decision); Sierra

Club v. Clay Cnty. Bd. of Adjustment, 2021 S.D. 28, ¶ 13, 959 N.W.2d 615, 620 (we

gave no deference to a circuit court’s analysis of the availability of a writ of

mandamus).

[¶12.] We recently addressed this precise issue in Sierra Club, where we

determined that because “SDCL 11-2-61.1 provided that ‘[a]ny appeal of a decision

relating to the grant or denial of a conditional use permit shall be brought under a

petition . . . for a writ of certiorari[,]’” a CUP petitioner cannot “assert a claim for

[mandamus] relief under SDCL 11-2-35.” 2021 S.D. 28, ¶ 13, 959 N.W.2d at 620–21

(first alteration in original) (emphasis omitted) (quoting SDCL 11-2-61.1, amended

by 2020 S.D. Sess. Laws ch. 41, § 12). 5

5. The amendments made to SDCL 11-2-61.1 since Sierra Club are stylistic.
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Conclusion

[¶13.] We affirm the circuit court’s order denying the writ of mandamus. We

reverse the circuit court’s decision dismissing the petition for writ of certiorari as

untimely and remand for further proceedings consistent with this decision.

[¶14.] JENSEN, Chief Justice, and KERN, SALTER, and DEVANEY,

Justices, concur.

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