Summary of a Recent
Judicial Development in
Animal Feeding Operations

Adoption and Amendment of Zoning Ordinances

Kaycee Wolf
National AgLaw Center Research Associate

Summary of Decision

In Schafer v. Deuel County Board Of Commissioners, 725 N.W. 2d 241 (S.D. 2006), the Supreme Court of South Dakota reversed a circuit court's grant of a writ of mandamus to compel the county board of commissioners to enact initiative petitions regarding zoning ordinances.

Background

Schafer and the Deuel County Chapter of Dakota Rural Action (Petitioners) submitted two county initiative petitions under SDCL 7-18A-11, and the Deuel County Board (Board) refused to submit both petitions to a public vote and voted to reject both petitions. Id. at 243. The Petitioners then filed an application for writ of mandamus in the circuit court. Id. The circuit court granted the writ because it found that the "zoning procedures . . . apply to proposed modifications begun pursuant to zoning statutes . . . and that the initiative procedures . . . apply to proposed modifications begun pursuant to initiative statutes . . . ." Id.

Arguments

The Board appealed, arguing "that it properly rejected the petitions as they were not submitted in compliance with SDCL 11-2-28." Id.

Schafer argued that SDCL 7-18A-13 and 11-2-28 are not inconsistent and are alternate means of amending zoning ordinances. Id. at 244.

Analysis and Holdings

The court stated that a writ of mandamus should only be issued when the duty to act is clear. Id. at 244 (citing Black Hills Cent. R.R., 674 N.W.2d 31, 34 (S.D. 2003)). Looking to statutory construction, the court explained that statutes of specific application should take precedent over general application, and that 11-2-28 is a specific application statute while 7-18A-13 is a statute of general application. Id. at 245.

The court found that the two statutes were inconsistent and could not be reconciled. Id. at 247. The differences in the two statutes addressed due process and property rights. Id. SDCL 11-2-28 includes procedural safeguards and due process considerations. Id. The purpose of zoning ordinances is to adopt measures to regulate property use using a comprehensive plan to advance public welfare. Id. at 246. Although zoning is not exempt from due process considerations, private property is not shielded from zoning regulations. Id. at 245-46. Because 11-2-28 is the specific statute, the court found that it controlled the amendment to zoning ordinances rather than 7-18A-13, the general statute. Id.

The case was decided on November 29, 2006; this summary was posted April 23, 2008.