Mrose Development Co. v. Turner County Bd. of Commissioners

#30339-r-MES
2024 S.D. 28

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

****

MROSE DEVELOPMENT CO., LLC and
JASON SCHUMACHER, Petitioners and Appellees,

v.

TURNER COUNTY BOARD OF
COUNTY COMMISSIONERS, Respondent and Appellant.

****

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

****

THE HONORABLE DAVID KNOFF
Judge

****

RONALD A. PARSONS, JR. of
Johnson, Janklow & Abdallah, LLP
Sioux Falls, South Dakota

KATELYNN B. HOFFMAN of
Tuner County State’s Attorney
Parker, South Dakota Attorneys for respondent and
appellant.

ANDREW S. HURD
SHAWN M. NICHOLS of
Cadwell, Sanford, Deibert & Garry, LLP
Sioux Falls, South Dakota Attorneys for petitioners and
appellees.

****

ARGUED
MARCH 19, 2024
OPINION FILED 05/22/24
#30339

SALTER, Justice

[¶1.] MRose seeks to develop Turner County farmland located along Swan

Lake into 15 lakefront lots. The land for the proposed development is currently

included in an agricultural zoning district. Because of residential density

restrictions, MRose applied to rezone the land into a lake residential district. The

Turner County Board of County Commissioners (the County) voted to deny the

application, and MRose appealed to the circuit court, which reversed the County’s

decision. The court interpreted Turner County’s zoning ordinance to require

approval of the rezoning application as a purely ministerial act because the land

was situated along Swan Lake. The County appeals, and we reverse.

Factual and Procedural Background

[¶2.] Christe Stewart lives in Sioux Falls but owns 145 acres of family

farmland located on the west side of Swan Lake in Turner County. Stewart

inherited the land from her parents and indicates that she wants to develop it into

residential lots, in part, so that she and her two sons can build homes along the

lake. Stewart and real estate agent Jason Schumacher formed MRose

Development, Co., LLC, to develop a portion of her land into 15 lakefront lots.

[¶3.] But Stewart’s land is currently included in the “A-1 Agricultural

District” under Turner County’s 2008 Revised Zoning Ordinance (2008 Zoning

Ordinance). Article 3 of the 2008 Zoning Ordinance governs the Agricultural

District and includes residential density requirements to preserve the agricultural

nature of the district. Single-family dwellings are permitted uses within the

Agricultural District, but only one building eligibility is allowed per 40 acres with

-1-
#30339

the additional requirement that each single-family dwelling must be on at least a

2.5-acre lot.

[¶4.] In order to avoid these restrictions and begin constructing its 15-lot

residential development, MRose submitted an application to rezone Stewart’s land

to the Turner County Planning and Zoning Commission. 1 The application sought to

redesignate the land and include it in the “Lake Residential District,” which,

according to the 2008 Zoning Ordinance, exists “to provide for orderly residential

development around lakes.” The parties agree that rezoning the land, if permitted,

would allow MRose’s planned development as a permitted use.

[¶5.] The Turner County Planning and Zoning Commission considered

MRose’s rezoning application at a public hearing and recommended approval to the

Turner County Board of County Commissioners. A proposed ordinance that would

have rezoned Stewart’s land to Lake Residential received a first and second reading

at regular meetings of the county commission in June 2022. Following public

comment, the motion to pass the rezoning ordinance failed to carry by a vote of 2-2

with one of the commissioners absent.

[¶6.] The 2-2 vote effectively denied MRose’s rezoning application, but the

County decided to reconsider it with all five commissioners present at its June 28,

1. The procedure for rezoning land set out in Article 21 of the 2008 Zoning
Ordinance is virtually identical to the statutory method described in our
statutes. See SDCL 11-2-28.1 to -31 (describing the procedure for changing
county zoning designation). In essence, applications are submitted to a
county planning commission and, after notice to neighboring landowners, the
planning commission holds a public hearing and then makes a
recommendation to the board of county commissioners, which also holds a
public hearing and votes to either grant or deny the application.

-2-
#30339

2022, meeting. Although there is no transcript or further record of the discussion,

the parties agree that MRose’s rezoning application and the related proposed

ordinance produced strong public opposition, principally from current Swan Lake

residents. Ultimately, the minutes reveal only that the “motion failed.” The parties

agree that two commissioners voted to approve the ordinance, and three opposed it.

[¶7.] MRose appealed to the circuit court using the review procedures set

out in SDCL Chapter 7-8. The record reveals considerable imprecision about the

correct standard for the circuit court’s review of the County’s decision. The parties

at several points described the County’s decision as a quasi-judicial one and

suggested the court could effectively retry the rezoning matter “de novo,” meaning

without any deference. See SDCL 7-8-30 (“Each cause shall be heard and

determined de novo, except any appeal relating to a conditional use permit

determination.”). However, the parties and the court also noted at other points that

the court should review the County’s decision deferentially under an arbitrariness

standard, which is appropriate where a county commission’s decision reflects its

legislative or administrative—but not quasi-judicial—authority. See infra ¶ 32.

[¶8.] In any event, the circuit court agreed that MRose could present

evidence as part of its appeal, much of which appeared to be directed toward a de

novo retrial on the merits of the County’s decision—i.e., whether the elected

commissioners’ decision was a good one. For instance, MRose’s first witness was its

majority owner, Jason Schumacher, who testified that he had carefully planned the

proposed development and did “[e]verything to a T.” He explained that MRose had

hired a civil engineer and contacted state agencies regarding any impact the

-3-
#30339

development would have on local wildlife and conservation efforts. Schumacher

testified that he had also consulted the 2008 Zoning Ordinance while creating the

subdivision’s Master Declaration of Covenants and Restrictions, which, he

explained, went “above and beyond” what the 2008 Zoning Ordinance required for

property in the Lake Residential District.

[¶9.] Schumacher also testified about what occurred at the commission

meetings. In particular, he testified that he never received an explanation for the

“no” votes, despite asking for one. Instead, he was told that “we don’t have to

provide that.”

[¶10.] On cross-examination, Schumacher acknowledged that the subdivision

proposal was met with substantial opposition from current Swan Lake residents.

He recalled fielding questions at a local informational meeting and stated, “I had,

like, 60 people standing in the front yard rapid-firing me.” Specifically, Schumacher

explained that “they don’t want any more neighbors,” “they don’t want . . . outside

people coming in,” they do not “want us to ruin their sunset.”

[¶11.] However, Swan Lake resident Doug Berens favored MRose’s proposed

development and testified before the circuit court. He acknowledged that his

support was influenced by the fact that he also owned an undeveloped parcel of land

along the lake’s west bank whose value could increase if residential development

was permitted.

[¶12.] Berens also testified about an exchange he had with one of the county

commissioners who had voted against the rezoning ordinance. Commissioner Tony

Ciampa is a plumber and was performing some work for Berens when Berens asked

-4-
#30339

Ciampa about his vote. The conversation occurred after the tie vote but prior to the

final vote, and Berens testified that Ciampa explained his vote by referring to the

wishes of Stewart’s deceased father who, Ciampa claimed, “really didn’t want it

developed back” when he was living.

[¶13.] This testimony was the subject of a hearsay objection by the County.

The circuit court initially sustained the objection but allowed Berens’ testimony as

an offer of proof. MRose referenced the arbitrary standard and argued that Berens’

testimony concerned the arbitrary nature of Ciampa’s vote. The court stated that it

would later “determine whether I’m going to consider it” under the hearsay

exclusion that allows a statement made by an opposing party when made by an

individual in a representative capacity. See SDCL 19-19-801(d)(2).

[¶14.] MRose called Stewart as the third and final witness at the circuit

court’s evidentiary hearing. Stewart explained she had inherited the land from her

parents and remained actively involved with it. Though she lives in Sioux Falls,

Stewart testified that she has close and continuing connections to Turner County

and the community of Hurley, which is located near Swan Lake. Even with the

subdivision, Stewart explained that some of the land would still be available to

farm. Stewart expressed her desire to build her retirement home along Swan Lake

and create a place for her children and grandchildren to visit and enjoy. In

Stewart’s view, the County’s decision was simply “not fair” because it was her “God-

given right and constitutional right” to develop her land as she intended.

[¶15.] Stewart admitted that even with its Agricultural District zoning, her

land qualified for four building eligibilities—enough for she and her husband, one

-5-
#30339

for each of her two sons, plus one additional eligibility. But Stewart explained that

without the revenue that the subdivision would generate, she could not afford to

install the water, sewer, and road infrastructure necessary to develop the land.

[¶16.] At the close of testimony, the circuit court engaged counsel with

questions concerning their legal positions. MRose argued that, in its view, the 2008

Zoning Ordinance “already contemplate[s] that this would be a use permitted on the

lake[,]” and so the County did not have any discretion to deny the rezoning

application. The County, however, claimed that MRose was “skipping a step” that

required the County to exercise its independent authority to evaluate the rezoning

application and vote on the related ordinance.

[¶17.] Despite several references to the trial de novo standard, the circuit

court asked the County how the court was to determine whether the County acted

arbitrarily without a transcript or explanation for the County’s decision. In

response, the County admitted there was “a lack of record” but noted that it has

“historically” not recorded or transcribed its meetings and that “[t]he minutes met

the minimum requirements.” In the County’s view, it fulfilled its statutory

obligation by providing the record that it did have, although it was modest and

lacked a verbatim transcript. The County argued MRose had the burden to prove

arbitrariness and could have used discovery tools to gather that evidence.

[¶18.] And although it had referred to the arbitrariness standard at earlier

points, MRose suggested that the County was incorrectly arguing that MRose had

to overcome a “higher standard” that presumed the County’s decision was correct,

rather than a de novo standard, which contemplates no deference to the County’s

-6-
#30339

decision. The circuit court took the matter under advisement and requested

additional briefing from the parties for further clarification, in part, on the impact

that the lack of a record had on the court’s decision.

[¶19.] The unsettled nature of exactly how the circuit court should view the

County’s decision—as a quasi-judicial act or as a non-quasi-judicial one—was

ultimately not consequential to the court’s decision. In a February 9, 2023, oral

ruling, the court reversed the County’s decision to deny MRose’s rezoning

application based solely upon its interpretation of the 2008 Zoning Ordinance. In

the court’s view, the 2008 Zoning Ordinance required the County to transfer

Stewart’s property to the Lake Residential District because the property was

located along Swan Lake. The court concluded that the County lacked any

discretion to deny the application because MRose’s proposed subdivision was a

permitted use under Article 6 of the 2008 Zoning Ordinance, which states the Lake

Residential District “shall be permitted to be used” for residential development.

[¶20.] The circuit court’s subsequent findings and conclusions were,

accordingly, oriented to its legal interpretation of the 2008 Zoning Ordinance and

not to an arbitrariness standard or its own de novo factual findings about the merits

of MRose’s proposed development. The court also did not rule on the admissibility

of Berens’ hearsay statement relating to Ciampa’s vote.

[¶21.] The County appeals, raising three issues, restated as follows:

1. Whether the circuit court erred when it interpreted the
2008 Zoning Ordinance to mandate that the County grant
MRose’s rezoning application.

-7-
#30339

2. Whether the County’s decision was quasi-judicial or,
rather, a non-quasi-judicial one that implicated the
County’s administrative or legislative authority.

3. Whether the County’s decision to deny MRose’s rezoning
application was arbitrary.

Analysis and Decision

Interpretation of the 2008 Zoning Ordinance

[¶22.] Because the circuit court’s judgment rested on its interpretation of the

2008 Zoning Ordinance, we begin our review there. The interpretation of an

ordinance “is a legal question we review de novo.” Stockwell v. McCook Cnty. Bd. of

Comm’rs, 2024 S.D. 2, ¶ 15, 2 N.W.3d 236, 240; see also Croell Redi-Mix, Inc. v.

Pennington Cnty. Bd. of Comm’rs, 2017 S.D. 87, ¶ 26, 905 N.W.2d 344, 351

(concluding there was “no reason” to apply an arbitrariness standard to a county

commission’s decision because the circuit court’s decision was “premised on the

court’s erroneous interpretation of the controlling ordinance”). 2

[¶23.] “Zoning ordinances are interpreted according to the rules of statutory

construction[.]” Stockwell, 2024 S.D. 2, ¶ 21, 2 N.W.3d at 241 (citation omitted).

Therefore, we “necessarily begin[ ] with an analysis of the . . . text.” In re

2. To perhaps clarify, the de novo standard courts use to review questions of law
relating to the interpretation of text is not the same as trial de novo
procedure referenced in some administrative appeal statutes and discussed in
our cases. See infra ¶¶ 31–37. The former contemplates no deference to a
trial court or administrative body’s legal interpretation of statutes or
ordinances. But, where it is authorized under our decisions, the trial de novo
procedure allows a trial court to broadly reconsider the propriety of an
administrative decision in its entirety, including rehearing the subject of the
decision with the presentation of evidence. The fact that the distinct de novo
standard and the trial de novo procedure sound so similar may account for
some of the imprecision associated with “de novo” references before the circuit
court.

-8-
#30339

Implicated Individual, 2021 S.D. 61, ¶ 16, 966 N.W.2d 578, 583. “If this inquiry

reveals language that ‘is clear, certain and unambiguous, our only function is to

declare the meaning of the ordinance as expressed.’” Stockwell, 2024 S.D. 2, ¶ 21, 2

N.W.3d at 241 (quoting City of Sioux Falls v. Strizheus, 2022 S.D. 81, ¶ 19, 984

N.W.2d 119, 124).

[¶24.] The County argues the circuit court erroneously interpreted the 2008

Zoning Ordinance to require approval of MRose’s rezoning application. At oral

argument, MRose conceded that the court erroneously interpreted the 2008 Zoning

Ordinance. We agree and hold that the court erred when it held the text of the 2008

Zoning Ordinance required the County to approve the rezoning application.

[¶25.] The circuit court’s oral ruling appears to be based on the legal

conclusion that Stewart’s property either is, or should be, zoned in the Lake

Residential District simply because it is located on Swan Lake. Using this premise,

the court moved directly to the Lake Residential District provisions set out in

Article 6 of the 2008 Zoning Ordinance which, the court declared, clearly and

unambiguously authorized MRose’s proposed development.

[¶26.] However, no provision in the entire 2008 Zoning Ordinance states that

lakefront property must be zoned Lake Residential simply by virtue of its location.

And here, it is undisputed that Stewart’s land is included in the Agricultural

District, not the Lake Residential District. This is, of course, what prompted

MRose’s rezoning application.

[¶27.] Indeed, the circuit court’s contrary view is irreconcilable with the

express provisions of the 2008 Zoning Ordinance. Article 2 of the 2008 Zoning

-9-
#30339

Ordinance makes clear that land in Turner County is divided among ten zoning

districts, only one of which (not implicated here) can overlay another district. In

other words, a parcel of land can belong to only one district. The court erred

because it determined that Stewart’s land is already effectively within the Lake

Residential District simply because it is situated on Swan Lake. Doing so

overlooked the significance of the land’s current zoning status in the Agricultural

District and discounted the significance of the County’s consideration of the

proposed rezoning ordinance that would have granted MRose’s application.

[¶28.] This is true even though the circuit court appeared to contemplate this

sort of decision-making authority at the evidentiary hearing. Many of the court’s

questions to counsel following the presentation of evidence concerned the impact of

Turner County’s Comprehensive Development Plan, though the court’s oral ruling

did not mention it. Nevertheless, the comprehensive plan is included in the record

and seems to support the idea that rezoning Stewart’s land and including it within

the Lake Residential District was not a foregone conclusion.

[¶29.] For instance, the comprehensive plan specifically mentions Swan Lake

and states that “[i]t is vital that Turner County carefully review development

proposals in the Swan Lake area to preserve the Swan Lake environment.”

(Emphasis added.) The comprehensive plan also states that “the county must strive

to protect the integrity of its agricultural resources[,]” noting “the importance of

agricultural land and the adverse impacts resulting from over development of the

rural area.”

-10-
#30339

[¶30.] Because the circuit court failed to correctly interpret and apply the

plain and unambiguous language of the 2008 Zoning Ordinance’s text, it erred when

it concluded the 2008 Zoning Ordinance required the County to approve MRose’s

rezoning application.

The nature of the County’s decision under Troy Township
[¶31.] As indicated above, the provisions of SDCL 7-8-30 state that appeals

from county commission decisions “shall be heard and determined de novo[.]”

Ordinarily, we would simply apply a plain statutory command like this one without

the need for further interpretation. However, our decisions identify a constitutional

restriction upon our authority to do so. See Dep’t of Game, Fish & Parks v. Troy

Twp., 2017 S.D. 50, ¶ 20, 900 N.W.2d 840, 849.

[¶32.] Citing our own precedent as well as decisional law from the United

States Supreme Court, we held in Troy Township that the separation of powers

doctrine prevented a trial de novo following the decisions of three township boards

that were exercising administrative or legislative authority:

Under the separation-of-powers doctrine, a court may not
exercise or participate in the exercise of functions which are
essentially legislative or administrative. Therefore, executive or
administrative duties of a nonjudicial nature may not be
imposed on judges, either directly or by appeal. The purpose of
this limitation is to help ensure the independence of the Judicial
Branch and to prevent the Judiciary from encroaching into areas
reserved for the other branches.

2017 S.D. 50, ¶ 14, 900 N.W.2d at 846 (cleaned up); see also Croell Redi-Mix, 2017

S.D. 87, ¶ 26 n.5, 905 N.W.2d at 351 n.5 (applying Troy Township to county

commission appeals). Instead, when a board exercises administrative or legislative

authority, the party challenging the board’s decision must prove the decision was

-11-
#30339

arbitrary—a standard that allows local boards and commissions considerable

deference when acting in a policy-making role. Troy Twp., 2017 S.D. 50, ¶ 24, 900

N.W.2d at 850–51.

[¶33.] In the County’s view, its decision to deny MRose’s rezoning application

by rejecting the rezoning ordinance was legislative and not quasi-judicial, and

therefore, the court should have reviewed the County’s decision under an arbitrary

standard. At oral argument, MRose conceded the County’s act was not quasi-

judicial in nature. We agree.

[¶34.] “Whether an action is quasi-judicial is a fact-based inquiry undertaken

on a case-by-case basis.” Carmody v. Lake Cnty. Bd. of Comm’rs, 2020 S.D. 3, ¶ 17,

938 N.W.2d 433, 438. A quasi-judicial act is one that “investigates, declares, and

enforces liabilities as they stand on present or past facts and under laws supposed

already to exist[,]” one “that could have been determined as an original action in the

circuit court.” Troy Twp., 2017 S.D. 50, ¶ 21, 900 N.W.2d at 849 (cleaned up). In

other words, quasi-judicial acts are those that comport with “the ordinary business

of courts[.]” Id. ¶ 21, 900 N.W.2d at 849 (citation omitted). Non-quasi-judicial acts,

however, “look[ ] to the future and chang[e] existing conditions by making a new

rule, to be applied thereafter to all or some part of those subject to its power.” Id.

Non-quasi-judicial acts consider the public interest and do not adjudicate

individuals’ existing rights. Carmody, 2020 S.D. 3, ¶ 16, 938 N.W.2d at 438.

[¶35.] We clarified the difference between quasi-judicial and non-quasi-

judicial acts in Troy Township, where we held the decisions of three townships’ to

vacate portions of a highway were not quasi-judicial acts. 2017 S.D. 50, ¶ 22, 900

-12-
#30339

N.W.2d at 849–50. We noted that the townships’ decisions were expressions of

policy that considered the public interest. Id.; see also Surat v. Am. Twp., 2017 S.D.

69, ¶ 12, 904 N.W.2d 61, 66 (holding the decision to designate a road as minimum

maintenance was one of policy). The decisions, rendered by individual boards of

supervisors, did not involve adjudicating existing rights of landowners, and

therefore, the “circuit court could not have been asked in the first instance to

determine whether the highway segments at issue should be vacated[.]” Troy Twp.,

2017 S.D. 50, ¶ 22, 900 N.W.2d at 850. Compare Surat Farms, LLC v. Brule Cnty.

Bd. of Comm’rs, 2017 S.D. 52, ¶ 11, 901 N.W.2d 365, 369 (holding the adjudication

of rights between two landowners in a land-drainage dispute was quasi-judicial).

[¶36.] Applying these rules, we hold that the County acted in a legislative or

administrative capacity when it denied the rezoning ordinance. MRose was not

seeking an adjudication of its existing rights but, rather, it sought to change the

land’s zoning district. As a result of the commissioners’ 2-3 vote, the rezoning

ordinance was not approved, and the status of Stewart’s land simply remained the

same. And although the land is private property, the zoning of land implicates the

public’s interest in land use. Land development in Turner County is a policy

decision for the County, and reviewing the wisdom of the decision in a trial de novo

is not consistent with the “ordinary business of courts.”

Arbitrariness of the County’s decision
[¶37.] We have held that “[t]he arbitrariness standard of review is narrow,

and under that standard, ‘a court is not to substitute its judgment for that of the

agency.’” Troy Twp., 2017 S.D. 50, ¶ 33, 900 N.W.2d at 852–53 (quoting Motor

Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43,
-13-
#30339

103 S. Ct. 2856, 2866, 77 L. Ed. 2d 443 (1983)). A decision is arbitrary if it is “not

governed by any fixed rules or standard” but, rather, is “based on personal, selfish,

or fraudulent motives[.]” Id. ¶ 33, 900 N.W.2d at 853 (citations omitted). When

determining whether a board acted arbitrarily, a court asks the following:

[Whether] the [County] has relied on factors which [the
Legislature] has not intended it to consider, entirely failed to
consider an important aspect of the problem, offered an
explanation for its decision that runs counter to the evidence
before the [County], or is so implausible that it could not be
ascribed to a difference in view or the product of . . . expertise.

Id. (third and fifth alterations in original).

[¶38.] We presume a board is objective and acts fairly. Id. ¶ 38, 900 N.W.2d

at 854. Therefore, the party asserting a claim against the board has the burden of

proving it acted in an arbitrary manner. Id. ¶ 24, 900 N.W.2d at 850–51; McLaen v.

White Twp., 2022 S.D. 26, ¶ 46, 974 N.W.2d 714, 728. Other courts have described

this as a “heavy burden.” See, e.g., Cnty. of Will v. Pollution Cntrl. Bd., 135 N.E.3d

49, 60 (Ill. 2019).

[¶39.] MRose offers two theories upon which it contends the County acted

arbitrarily. First, it points to Berens’ testimony that Ciampa had told him that he

voted to deny the proposed rezoning ordinance because Ciampa knew Stewart’s

deceased father opposed the development of his property when he was living.

MRose’s second theory seems to relate to the absence of a transcript from the

County meetings and the lack of an explanation for the vote. The County argues

MRose failed to meet its burden of proof under either of these theories.

[¶40.] We agree that MRose failed to meet its burden of proof that the County

acted arbitrarily. The only evidence presented by MRose that arguably pertained to

-14-
#30339

the issue of arbitrariness was Berens’ testimony about Ciampa’s vote. All the other

evidence related to MRose’s actions rather than the County’s decision. What MRose

did or did not do in preparation for developing a subdivision may support its view

that approving the rezoning ordinance would have been a better decision because

the proposed development would have been a permissible use within the Lake

Residential District. However, this evidence has no bearing on whether the

County’s contrary decision was arbitrary under the standard set out above.

[¶41.] Further, the admissibility of Berens’ proffered hearsay testimony

about Ciampa’s vote against the rezoning ordinance—which was not addressed by

the circuit court or presented on appeal—is not outcome determinative here. Even

if Berens’ testimony regarding Ciampa’s statement was admissible and was

determined to be evidence of arbitrariness, it would only impact one of the three

“no” votes, leaving the vote 2-2 and insufficient to pass the rezoning ordinance.

[¶42.] MRose’s second theory does not relate to arbitrariness directly; its

argument seeks to excuse meeting the arbitrariness standard by arguing the

County failed to produce a verbatim transcript of the June 28 meeting and

otherwise explain its decision. However, there is no clear statutory requirement

that a county board of commissioners record its meetings, make a verbatim

transcript, or provide an explanation for its policy decisions. And we cannot

judicially create one. 3

3. We note that the applicable statutes leave some uncertainty as to the
necessity and the responsibility for a transcript relating to a challenged board
of county commissioners’ decision. The provisions of SDCL 7-8-29 state that
“the county auditor shall upon the filing of the required bond and the
(continued . . .)
-15-
#30339

[¶43.] Therefore, verbatim transcript or not, it was MRose’s burden, as the

challenging party, to produce sufficient evidence to establish arbitrariness. It had

the opportunity to do so before the circuit court at the evidentiary hearing, but, as

we noted, its evidence was almost exclusively oriented to proving the advisability of

rezoning, not that the County’s decision was arbitrary. Because we cannot

substitute our judgment for the County’s, MRose faced the challenge of proving that

the County’s decision was “based on personal, selfish, or fraudulent motives[.]” Troy

Twp., 2017 S.D. 50, ¶ 33, 900 N.W.2d at 852–53 (citations omitted). MRose’s

evidence was simply wide of this mark, and there is no reason for a remand. Doing

so would effectively provide MRose with a “second” appeal to which it is not

entitled. See State v. Mollman, 2003 S.D. 150, ¶ 12, 674 N.W.2d 22, 27 (holding

that the defendant, who had the burden of proof on the applicable issue, could not

have a second “bite at the apple” when he had been given the opportunity to present

his evidence and failed to meet his burden).

Conclusion

[¶44.] The circuit court erred when it reversed the County’s denial of MRose’s

rezoning application based on an erroneous interpretation of the 2008 Zoning

Ordinance. Because the County exercised its non-quasi-judicial policy-making

authority when it denied MRose’s rezoning application, the court should have

________________________
(. . . continued)
payment of his fees . . . make out a complete transcript of the proceedings of
the board relating to the matter of its decision and deliver the same to the
clerk of courts.” (Emphasis added.) However, SDCL 7-8-30 states that “[a]n
appeal and transcript, if a transcript exists, shall be filed by the auditor as
soon as practicable . . . .” (Emphasis added.)

-16-
#30339

reviewed the County’s decision under the arbitrariness standard and concluded that

MRose failed to meet its burden. We reverse.

[¶45.] JENSEN, Chief Justice, and KERN, DEVANEY, and MYREN,

Justices, concur.

-17-