Gonsor v. Day County

#29928-r-SPM
2023 S.D. 50

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

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LES GONSOR and JULIE GONSOR, Plaintiffs and Appellants,

v.

DAY COUNTY PLANNING
COMMISSION and DAY COUNTY
BOARD OF ADJUSTMENT, Political
Subdivisions of the State of South Dakota, Defendants and Appellees.

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APPEAL FROM THE CIRCUIT COURT OF
THE FIFTH JUDICIAL CIRCUIT
DAY COUNTY, SOUTH DAKOTA

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THE HONORABLE JON S. FLEMMER
Judge

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GORDON P. NIELSEN
TREVOR J. ARCHER of
Delaney, Nielsen & Sannes, P.C.
Sisseton, South Dakota Attorneys for plaintiffs
and appellants.

JOHN D. KNIGHT
Day County State’s Attorney
Webster, South Dakota Attorney for defendants and
appellees.

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CONSIDERED ON BRIEFS
OCTOBER 3, 2022
OPINION FILED 09/20/23
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MYREN, Justice

[¶1.] The Gonsors appeal the circuit court’s determination that the Day

County Board of Adjustment could reconsider and modify a previously granted

variance. We reverse.

Factual and Procedural History

[¶2.] Les and Julie Gonsor own real property in Day County, South Dakota.

Day County Planning and Zoning Commissioner Dari Schlotte informed the

Gonsors that their property violated the Day County Planning and Zoning

Ordinance because they altered the grading and added rocks to the property. After

learning of this infraction, the Gonsors submitted an Application for Variance to

Zoning Regulations to the Day County Planning and Zoning Board (hereinafter

Board of Adjustment), 1 seeking a variance from the ordinance that would change

the setback requirement and allow the existing grading and rocks to remain.

[¶3.] On November 17, 2015, the Board of Adjustment voted unanimously to

approve the Gonsors’ variance application. In a later proceeding related to this

variance, the circuit court determined that “the decision had been filed at least by

December 15, 2015.” Neither party has challenged that determination in this

appeal. Consequently, we accept that finding and view that decision approving the

variance as “filed” by December 15, 2015.

1. The minutes of the meetings identify the board as the “Planning and Zoning
Board.” The Day County Zoning Ordinances specify the “County Planning
Commission” is the “board of adjustment” for Day County. Day County
Zoning Ordinance Section 1901. Despite the misnomer, the “Planning and
Zoning Board” was clearly acting as the “Board of Adjustment” as authorized
by SDCL 11-2-49.
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[¶4.] Day County residents Jack Schmidt, Terry Thompson, and Judy

Thompson were at the November 17 meeting but did not object to the proposed

variance. That same day, they complained to Day County State’s Attorney Danny

Smeins that they had not been given an opportunity to object to the variance.

Smeins suggested they request that the Board of Adjustment reconsider the

variance. Schmidt and the Thompsons then verbally made this request to Schlotte.

At the Board of Adjustment’s next regular meeting, on December 15, 2015, Schmidt

expressed his disagreement with the Board of Adjustment’s decision to grant the

Gonsors’ variance.

[¶5.] On January 14, 2016, Schmidt and Tim Harr sent Schlotte a letter on

behalf of the Beals Pickerel Lake Subdivision Association asking the Board of

Adjustment to “reconsider” the Gonsors’ variance. The following day, Schlotte

informed the Gonsors of this request. The Board of Adjustment discussed the letter

during a regular meeting on January 19, 2016. During its February 16, 2016

meeting, the Board of Adjustment voted unanimously to reconsider the Gonsors’

variance at their next meeting. At its March 29, 2016 meeting, the Board of

Adjustment reconsidered the Gonsors’ variance and voted to modify the previously

approved variance. On March 29, 2016, Schlotte sent the Gonsors a letter

informing them of the Board of Adjustment’s decision to “change the variance, to

include the removal of the rock/boulders and to reslope the property adjacent to the

road for better visibility and safety reasons as well as easier snow removal.”

Eventually, Schlotte informed the Gonsors that a stay was in place to prevent any

building on their property until they complied with the modified variance.

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[¶6.] Four years later, in June 2020, the Gonsors applied for a permit to

build a house on their property. On June 16, 2020, the Board of Adjustment voted

to deny the permit application because the Gonsors had not complied with the

modified variance.

[¶7.] In August 2020, the Gonsors sued the Day County Planning

Commission and the Day County Board of Adjustment, seeking a declaration under

SDCL 21-24-1 that the Board of Adjustment’s November 2015 decision granting

them a variance was a final determination and requesting “the right to utilize and

develop their property in a manner that would be consistent with the variance . . . .”

They further sought a corresponding declaration that the Board of Adjustment’s

later decision in March 2016 was void because the Board of Adjustment had no

authority “to hear an appeal and then to amend the previously approved variance

. . . .” In its answer to the complaint, the Board of Adjustment denied that it had

granted the Gonsors’ requested variance. Instead, it asserted that it notified them

“that the variance was being reconsidered . . . on or about January 15, 2016.”

[¶8.] Following a court trial, the circuit court, relying primarily on this

Court’s decision in Jundt v. Fuller, 2007 S.D. 62, 736 N.W.2d 508, issued a

memorandum opinion concluding that “[b]ased on the above case law and the lack of

any statutory prohibition preventing a board of adjustment from reconsidering its

own decision, the Day County Planning Commission, acting as the Day County

Board of Adjustment, had authority to reconsider the decision of the Board made on

November 17, 2015, granting Gonsors’ Application For Variance.” The circuit court

determined that the Board of Adjustment’s March 20, 2016 decision amending the

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Gonsors’ variance was proper and constituted the final decision of the Board of

Adjustment. It denied the Gonsors’ request for relief and dismissed their complaint.

The Gonsors appeal.

Decision

[¶9.] The Legislature provided a means to contest a decision of a board of

adjustment:

Any person or persons, jointly or severally, or any officer,
department, board, or bureau of the county, 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 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).

[¶10.] This Court has previously noted that the Legislature intended

certiorari to be the only remedy to appeal the decision of a board of adjustment:

“[w]e believe that the repeal of the prior statutes and the enactment of this new

comprehensive appellate scheme [i.e., SDCL 11-2-61 to -65] expressed legislative

intent to completely occupy the field of taking board of adjustment appeals.” In re

Yankton Cnty. Comm’n, 2003 S.D. 109, ¶ 18, 670 N.W.2d 34, 40.

[¶11.] The exclusive means to challenge the Board of Adjustment’s November

2015 decision approving the variance was through a writ of certiorari under SDCL

11-2-61. Without any effort to petition for a writ of certiorari under SDCL 11-2-61,
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the November 2015 variance decision became final 30 days after it was filed.

Because the circuit court determined this decision had been filed by December 15,

2015, the Board of Adjustment’s November 2015 variance decision became final no

later than January 14, 2016.

[¶12.] The circuit court acknowledged that the time to appeal the Board of

Adjustment’s decision would have expired on January 14, 2016. However, the

circuit court determined that the Board of Adjustment’s November 2015 decision

was not final because the January 14, 2016 letter asking the Board of Adjustment

to “reconsider” its November 2015 decision was submitted within the 30-day

timeframe for filing an appeal.

[¶13.] We disagree with the circuit court’s reasoning. As noted in Jundt, the

“right to reverse an earlier, erroneous adjudication lasts until jurisdiction is lost by

appeal or until a reasonable time has run, which would at least be co-extensive with

the time required by statute for review.” 2007 S.D. 62, ¶ 7, 736 N.W.2d at 512

(quoting Stearns-Hotzfield v. Farmers Ins. Exch., 360 N.W.2d 384, 389 (Minn. Ct.

App. 1985)). Consequently, any authority the Board of Adjustment had to

reconsider its November 2015 decision ceased to exist when that decision became

final on January 14, 2016. The filing of a request for reconsideration did not extend

the time to appeal, and the Board of Adjustment did not reconsider the variance

before the appeal time expired. Consequently, the Board of Adjustment no longer

had the authority to reconsider the variance when it did so on March 29, 2016.

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[¶14.] SDCL 21-24-1 2 gives circuit courts the broad ability to provide

declaratory relief. We reverse and remand for a declaration, consistent with this

opinion, of the Gonsors’ rights under the variance the Board of Adjustment granted

on November 17, 2015.

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

Justices, concur.

2. SDCL 21-24-1 provides:

Courts of record within their respective jurisdictions shall have
power to declare rights, status, and other legal relations
whether or not further relief is or could be claimed. No action or
proceeding shall be open to objection on the ground that a
declaratory judgment or decree is prayed for. The declaration
may be either affirmative or negative in form and effect; and
such declaration shall have the force and effect of a final
judgment or decree.
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