Little v. Hanson County Drainage Board

#29463-a-SPM
2022 S.D. 63

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

****

JON LITTLE AND SHIRLEY LITTLE
AND CLARICE LITTLE, Plaintiffs and Appellants,

v.

HANSON COUNTY DRAINAGE BOARD,
HANSON COUNTY, SOUTH DAKOTA, Defendant and Appellee,

and

JAMES F. PAULSON, Defendant.

****

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

****

THE HONORABLE CHRIS S. GILES
Judge

****

CHRIS A. NIPE of
Larson and Nipe
Mitchell, South Dakota Attorneys for plaintiffs
and appellants.

MIKE C. FINK
Hanson County Deputy State’s Attorney
Bridgewater, South Dakota Attorneys for defendant and
appellee.

****

ARGUED
AUGUST 24, 2021
OPINION FILED 10/26/22
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MYREN, Justice

[¶1.] The Littles 1 appealed to the circuit court a decision by the Hanson

County Drainage Board (Board) granting a drainage permit to James F. Paulson. 2

The permit application sought to clean out a pre-existing ditch. The Littles claim

the Board failed to follow the approval procedures outlined in its ordinances and

South Dakota statutes. The circuit court affirmed the Board’s decision. The Littles

now appeal to this Court, raising the additional issues that the circuit court failed

to admit relevant testimony and failed to take judicial notice of a prior proceeding

involving the parties. We affirm.

Facts and Procedural History

[¶2.] In May 2020, Paulson applied for a drainage permit (application) with

the Board under Hanson County’s Drainage Ordinance (ordinances) § 2.01. 3 In the

application, Paulson sought to remove approximately 2.5 feet of debris that had

collected in a ditch located in a township road’s right-of-way. The clean-out of the

1. The Littles refers to Jon, Shirley, and Clarice Little who filed the complaint
against the Board.

2. This Court ordered supplemental briefing to determine whether the circuit
court had authority to hear an appeal directly from the Hanson County
Drainage Board. The Hanson County Drainage Ordinance at Article 7.01(2)
defines the Hanson County Drainage Board as the Hanson County
Commission. Both parties agreed that this case involves an appeal to the
circuit court from a decision of the board of county commissioners under
SDCL 7-8-27. See Carmody v. Lake Cnty. Bd. of Comm’rs, 2020 S.D. 3, ¶¶ 1,
19, 938 N.W.2d 433, 435, 439 (reviewing a circuit court’s decision from an
appeal under SDCL 7-8-27 of a drainage permit granted by a board of
commissioners sitting as a drainage board).

3. Section 2.01 states, “[a] drainage permit is required prior to commencing the
excavation for, or the construction or installation of, a drainage project[.]”

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ditch would return it to its pre-existing, natural state. In compliance with § 2.02 of

the ordinances, the application identified the land to be drained, the area of

drainage, the outlet’s location, a description of the project, and included consent

from the downstream landowner. It also included two signatures from members of

the Spring Lake Township Board of Supervisors (Township), granting the

Township’s approval of the permit. The Township’s approval was necessary

because § 2.02 of the ordinances required “written approval of the governing agency

for any drainage into a road right-of-way[.]” The Township is the governing agency

regarding the right-of-way at issue. Paulson also attached a statement detailing

what occurred at the Township’s special meeting on May 6, 2020. It stated that the

Township discussed Paulson’s request to receive the drainage permit at issue here

and the separate issue of Paulson’s removal of a driveway and culvert without

replacement. The statement was signed by the Township’s chairman and clerk and

indicated that the Township considered the requested permit.

[¶3.] Regarding the permit request for debris removal, the Board published

notice of a public meeting in a Hanson County newspaper on May 28, 2020, and

June 4, 2020. The notice informed the public that the Board was to hold a hearing

on the application on June 16, 2020. Under § 2.07 of the ordinances, “[a]t the

County’s direction, the applicant shall prominently post the property in a manner

most visible to the nearest public right-of-way, giving notice for the permit

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hearing.” 4 The Board did not direct Paulson to “post” a notice of the meeting on the

property.

[¶4.] The Board considered Paulson’s application on June 16, 2020 (June

meeting). Paulson, Jon Little, Shirley Little, and the Littles’ legal counsel were

present. Paulson presented information on the application, and the Littles objected

to the application. The Board tabled the application to seek advice from its attorney

about whether the application needed additional signatures. The Board did not

indicate at that meeting when it would continue its consideration of the application.

[¶5.] Paulson’s application was placed on the agenda for the July 7, 2020,

board meeting (July meeting). The Hanson County auditor emailed the Littles’

counsel notifying him of the July meeting more than 24 hours before that meeting.

She also posted the meeting’s agenda online. Minutes from the July meeting

indicate that Paulson presented information on the application, including the

nature and the extent of the project. At the meeting, the Littles’ counsel appeared

4. Section 2.07 provides:

For all hearings required pursuant to this article, the County
will, at the applicant’s expense, publish notice in the County
legal newspaper once a week for two consecutive weeks. The
final published notice must be published not more than 15 days,
or less than 5 days, before the date set for the hearing. At the
County’s direction, the applicant shall prominently post the
property in a manner most visible to the nearest public right-of-
way, giving notice for the permit hearing. The County will also
give notice, at the applicant’s expense . . . not more than 30 days
nor less than ten days from the date set for hearing to . . . [a]ny
person who has notified the County in writing of the person’s
objection to the drainage project proposed, and who has
requested, in writing notification of the hearing on the drainage
project proposed.

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and opposed the application, but the Littles were not personally present. The

meeting minutes do not indicate that Littles’ counsel raised concerns about notice

for the hearing or that counsel requested a postponement so that his clients could

attend.

[¶6.] According to the minutes, “[t]he Board first determined that the

application was submitted by the proper party and that the application include[d]

the appropriate Township and landowner consent.” The minutes indicate that the

Board read aloud the factors from § 2.09 of the ordinances and, after considering the

input of those in attendance, made specific findings regarding the application. The

findings paralleled the factors in § 2.09 of the ordinances. Based on its findings, the

Board unanimously approved the application.

[¶7.] Following the approval of the application, the Littles filed a complaint

in circuit court, alleging that the Board violated its ordinances and various state

statutes. The Littles claimed the Township failed to post notice of its meeting, so its

approval of the permit was invalid. They further argued that because the Board

failed to publish notice of the July meeting and failed to require Paulson to post a

notice on his property, its approval of the permit was invalid. The Littles also

argued that the application was incomplete because it did not reference the

driveway and culvert that Paulson had previously removed.

[¶8.] The Board responded that the Township, not the Board, controls the

ditch where the culvert and driveway were located, and therefore, the removal of

the culvert and driveway held no relevance to the current proceeding. Additionally,

the Board contended that it had no obligation to investigate whether the Township

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complied with the Township’s approval procedures. The Board noted that it

satisfied its notice requirements; specifically, it published notice of the June

meeting, the Littles’ counsel received personal notice of the continued July meeting,

and the Board had elected not to require Paulson to post a notice on the property.

The circuit court initially determined that the Board committed no procedural

errors and that the Board was entitled to rely on the validity of the Township’s

approval process. It also noted that the Littles should have taken their concerns

about the Township’s approval process before the Township.

[¶9.] The Littles then made an offer of proof regarding the Township’s

approval process. The Township’s clerk testified that the Township held a meeting

to approve the permit, but it did not post any notice about the meeting, and, to his

knowledge, the Township did not publish the minutes from the meeting. After

hearing the offer of proof, the court again ruled that this testimony was not relevant

because the Board could take the Township’s authorization at face value.

[¶10.] The circuit court took evidence and heard arguments regarding

whether the Board’s decision was an abuse of discretion. The Littles asked the

court to take judicial notice of a prior court proceeding involving an earlier drainage

application filed by Paulson (2019 proceeding) about the driveway and culvert

removal and sought to admit a transcript from the court hearing in that prior

proceeding. 5 The Board objected, arguing the information from the 2019 proceeding

5. In the 2019 proceeding, the circuit court remanded the matter back to the
Board after determining that the Board did not follow the county ordinances
in approving the drainage permit. The circuit court also found Paulson’s
drainage permit application to be deficient and directed him to clarify the
(continued . . .)
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was not presented to the Board during its decision-making process on the current

application.

[¶11.] The circuit court rejected the judicial notice request, noting that the

2019 proceeding involved a separate application and indicated that “we need to

stick to what was presented to them in June, at the June 16th meeting, and matters

presented to them at the July 7th meeting.” Despite this ruling, the circuit court

allowed Jon Little to testify, over the Board’s objection, that Paulson had removed

the driveway and culvert before he submitted his first drainage application, and the

removal of those items affected the ditch’s drainage. The Littles then argued that

the Board abused its discretion by approving the drainage permit when it had clear

knowledge, based upon the 2019 proceeding, that the permit violated its ordinances

due to Paulson’s prior improper removal of the culvert and driveway. The Board

countered, arguing that it did not abuse its discretion because it followed the

ordinances and reached its decision based on the evidence presented.

[¶12.] In its findings of fact and conclusions of law, the circuit court

determined that because the Board did not direct Paulson to post notice of the

meeting on his property, this was not required by the applicable ordinance. The

circuit court also found that the Hanson County auditor notified the Littles’ counsel

more than 24 hours before the continued hearing in July, and the Littles’ counsel

appeared at the hearing and did not request a postponement. It concluded that the

________________________
(. . . continued)
description of what he was requesting the Board to approve. The circuit
court further noted that the Township needed to consent to the permit
through an official action.

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Board followed the procedures required in its ordinances and by State statute. The

court determined that the Board did not have “an obligation to make further

inquiry into whether or not the [T]ownship proceeded properly on giving

permission” for the drainage project. The circuit court concluded that the Board did

not abuse its discretion by granting the permit. The Littles appeal and raise five

issues, which we condense and restate.

Analysis and Decision

1. Whether the Board complied with the proper
procedures for approving the permit.

[¶13.] As both parties note, we review a board’s decision to grant or deny a

drainage permit under an abuse of discretion standard. See Carmody, 2020 S.D. 3,

¶ 29, 938 N.W.2d at 442. “An abuse of discretion ‘is a fundamental error of

judgment, a choice outside the range of permissible choices, a decision, which, on

full consideration, is arbitrary or unreasonable.’” MacKaben v. MacKaben, 2015

S.D. 86, ¶ 9, 871 N.W.2d 617, 622 (quoting Gartner v. Temple, 2014 S.D. 74, ¶ 7, 855

N.W.2d 846, 850). The burden of proof on appeal is on the party challenging the

decision made by the board. See Carmody, 2020 S.D. 3, ¶ 29, 938 N.W.2d at 442.

[¶14.] The Littles make various claims that the Board violated its ordinances

and State statutes in granting Paulson’s permit. Specifically, they claim the

Township’s consent to the permit was invalid, the Board failed to investigate the

Township’s consent, the Board violated its public notice ordinance, and the Board

did not require Paulson’s application to remedy his alleged prior violation of

removing the culvert and driveway. They also argue that the Board’s alleged errors

violated their right to due process.

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Township’s Consent

[¶15.] The Littles allege that the Township’s consent to the permit was

invalid because it did not comply with SDCL 1-25-1.1 6 by providing public notice of

the meeting where it considered the application. They also allege that the

Township violated SDCL 8-5-1, the statute governing when and where a Township

should hold a regular meeting. 7 Because of these violations, the Littles claim the

Township’s consent to the permit was void, making the Board’s decision to grant the

permit invalid.

[¶16.] The matter before this Court is an action against the Hanson County

Drainage Board, not the Spring Lake Township Board of Supervisors. The Hanson

County Drainage Board and the Spring Lake Township Board of Supervisors are

different political entities with different powers granted by the Legislature.

6. SDCL 1-25-1.1 provides:

Each political subdivision shall provide public notice, with
proposed agenda, that is visible, readable, and accessible for at
least an entire, continuous twenty-four hours immediately
preceding any official meeting, by posting a copy of the notice,
visible to the public, at the principal office of the political
subdivision holding the meeting. The proposed agenda shall
include the date, time, and location of the meeting. The notice
shall also be posted on the political subdivision’s website upon
dissemination of the notice, if a website exists. For any special
. . . meeting, the information in the notice shall be delivered in
person, by mail, by email, or by telephone, to members of the
local news media who have requested notice. For any special . . .
meeting, each political subdivision shall also comply with the
public notice provisions of this section for a regular meeting to
the extent that circumstances permit. . . .

7. SDCL 8-5-1 governs the procedures for regular meetings. As the letter from
the Township’s meeting notes, the meeting to consider the permit was a
special meeting. Therefore, SDCL 8-3-3 to -5 governed that meeting.

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Although a township’s authority may sometimes be subordinate to a county’s

authority, the entities remain separate. See SDCL 8-2-9; see also Welsh v.

Centerville Twp., 1999 S.D. 73, 595 N.W.2d 622 (discussing a conflict between a

township’s and a county’s respective regulatory authority). Accordingly, the action

now before this Court is not the appropriate avenue to invalidate the Township’s

consent to the permit based on the alleged violation of the Township’s special

meeting notice requirements.

[¶17.] Contrary to the Littles’ claim, they had an appeal avenue to raise any

alleged violation of the Township’s special meeting notice requirements under

SDCL 8-3-4. 8 SDCL 8-5-8 provides a statutory right of appeal “[f]rom all decisions,

orders, and resolutions of the boards of supervisors of townships[.]” Further, SDCL

8-5-8 provides that if a township fails to publish a decision, an aggrieved person

may appeal the decision within twenty days of receiving actual notice of the

decision, and SDCL 8-5-10 permits the circuit court to hear the matter. Upon

notification of the Township’s consent, the Littles could have directly appealed this

decision and raised its notice concerns to the circuit court. The Littles cannot

collaterally attack the Township’s consent in the current proceeding before the

8. SDCL 8-3-4 provides:

Every township clerk with whom such statement is filed as
required in § 8-3-3 shall record the same and immediately cause
notice to be published in the same manner as provided for the
publication of notice of the annual township meeting. However,
in a township with a population of twenty or fewer resident
voters, the notice of the time and place of any special meeting
need not be published more than once in any publication, shall
be provided not less than three days before the special meeting,
and may be provided by first class mail in lieu of publication.

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Board. Even if the Township failed to provide proper notice, the Board had no

authority to declare the Township’s consent void.

Board’s Investigation of Township’s Consent

[¶18.] Because the Township’s consent was a condition precedent to the

Board’s permit approval, the Littles claim the Board abused its discretion in

granting the permit without first investigating the validity of this condition

precedent.

[¶19.] Section 2.02 of the ordinances requires an individual seeking a

drainage permit to submit an application which must include, among other

information, the township’s “written approval” of the permit. When presented with

the application, the Board must evaluate a set of factors to determine whether it

should grant the permit. See Hanson County Drainage Ordinances § 2.09. The

ordinances require the Board to examine the application and determine whether a

township provided written approval. However, the ordinances do not require the

Board to investigate or verify that a township, when granting its approval, complied

with the township’s public notice requirements.

[¶20.] Here, the Board complied with its duties. Paulson presented an

application that contained approval signatures from two of the Township’s board

members and a letter signed by the Township’s clerk and chairman stating that the

Township held a special meeting to consider the permit. The Board elected to table

the discussion on the application at the June meeting to seek advice from its

attorney. At the continued meeting in July, the Board “determined that the

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application . . . include[d] the appropriate Township . . . consent.” The circuit court

correctly determined the Board did not violate its procedures.

Board’s Public Notice Ordinances

[¶21.] The Littles next contend that the Board violated § 2.07 of the

ordinances by not publishing notice of the July meeting, and as a result, they could

not attend the meeting. They also argue that the Board violated § 2.07 by failing to

direct Paulson to post notice on the property.

[¶22.] It is undisputed that the Board complied with the publication notice

requirements set forth in § 2.07 for the June meeting. The Littles appeared with

their legal counsel at the June meeting and objected to Paulson’s application. The

Hanson County auditor provided notice to the Littles’ legal counsel at least 24 hours

before the July meeting. The Littles’ counsel appeared at the July meeting and

continued the Littles’ objections to the proposed project. However, the record does

not show that the Littles’ counsel objected to the adequacy of the notice or requested

a continuance so that his clients could appear.

[¶23.] We discussed a similar issue regarding whether a commission provided

the public with proper notice for an amendment to a zoning ordinance in Abata v.

Pennington Cnty. Bd. of Comm’rs, 2019 S.D. 39, ¶ 7, 931 N.W.2d 714, 718. In

Abata, the commission published proper notice for the initial hearing on the

amendment, but during that initial hearing, the commission decided to continue the

matter to subsequent hearings. Id. ¶ 3, 931 N.W.2d at 717. The commission did not

publish notice for the continued hearings. Id. As a result, citizens claimed the

approved amendment was void due to the commission’s failure to provide proper

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statutory notice. Id. ¶ 7, 931 N.W.2d at 718. The circuit court ruled in favor of the

citizens and determined that the amendment was void because the statute required

the commission to publish notice for each of the hearings (relying on the fact that

“hearings” is plural), and the commission did not provide legal notice for the

continued hearing dates. Id. ¶ 20, 931 N.W.2d at 721. This Court reversed and, by

interpreting the relevant notice statutes, determined that the commission did not

need to provide new notice for each continued hearing but only for the one hearing

the statute required. Id. ¶ 23, 931 N.W.2d at 722.

[¶24.] Here, § 2.07 provides that “[f]or all hearings required pursuant to this

article, the County will . . . publish notice[.]” (Emphasis added.) The ordinances

only require a public hearing for: the appeal of an administrative decision on a

drainage permit (§ 2.06); applications determined to be of statewide or inter-county

significance (§ 2.08); and a drainage complaint (§ 3.03). Although the ordinances do

not specifically require a public hearing before the approval of an application for a

drainage permit, SDCL 46A-10A-39 states a “board or commission shall hold a

public hearing, subject to the requirements of § 46A-10A-22,” on an individual’s

petition to change their property’s drainage restrictions. (Emphasis added.) SDCL

46A-10A-22 requires the board or commission to publish the notice at least once a

week for at least two successive weeks. SDCL 46A-10A-39 also requires the board

or commission to “take action upon the petition within forty-five days of receipt . . .

of any such petition.”

[¶25.] Like the language in the governing statutes in Abata, this statute only

requires the Board to hold one public hearing on the application. According to the

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ordinances, the Board must publish notice for that hearing, which it did by

publishing notice for the June meeting. At the properly noticed June meeting, the

Board discussed the application and provided the public an opportunity to present

objections. Additionally, the Board published notice by complying with the open-

meeting requirements of SDCL 1-25-1.1 by posting the agendas for both the June

and July meetings at least 24 hours before their commencement, and both agendas

included an entry related to the application. The affected landowners had “the

opportunity to formally voice their concerns and present evidence in opposition to

[the] opposed measure[ ],” and the meeting provided “an avenue for expression of

public opinion.” Abata, 2019 S.D. 39, ¶ 25, 931 N.W.2d at 723 (alterations added)

(quoting Wedel v. Beadle Cnty. Comm’n, 2016 S.D. 59, ¶ 14, 884 N.W.2d 755, 759).

“Because only one hearing is required by statute before each governmental body,

those who do not attend the advertised hearing risk not having their voices heard.”

Abata, 2019 S.D. 39, ¶ 25, 931 N.W.2d at 723. “Requiring legal notice for each

continued hearing would significantly extend the amount of time to resolve

controversial issues” and potentially deter boards from continuing meetings, “which

would have the effect of suppressing the time allotted to the expression of public

opinion.” Id. ¶ 26, 931 N.W.2d at 723. The circuit court correctly concluded that

the Board complied with its notice requirements.

[¶26.] The Littles additionally claim that the Board violated § 2.07 by failing

to require Paulson to post a notice on his property. Section 2.07 provides: “At the

county’s direction, the applicant shall prominently post the property in a manner

most visible to the nearest public right-of-way, giving notice for the permit hearing.”

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(Emphasis added.) “When interpreting an ordinance, we must assume that the

legislative body meant what the ordinance says and give its words and phrases

plain meaning and effect.” In re Approval of Request for Amend. to Frawley Planned

Unit Dev., 2002 S.D. 2, ¶ 6, 638 N.W.2d 552, 554 (quoting Cole v. Bd. of Adjustment

of the City of Huron, 1999 S.D. 54, ¶ 4, 592 N.W.2d 175, 176). The ordinance’s plain

language requires individuals to post a notice on their property if the Board directs

them to do so. The ordinance does not include mandatory language requiring the

Board to direct the individual to post the notice. The Board’s authority to require

Paulson to post notice was discretionary, and it did not abuse that discretion by not

exercising its authority.

Due Process

[¶27.] As discussed above, the Board complied with the relevant South

Dakota statutes and county ordinances. As a result, the Littles received due

process. But even if procedural errors occurred, “proof of prejudice is generally a

necessary . . . element of a due process claim[.]” State, Dep’t of Game, Fish & Parks

v. Troy Twp., Day Cnty., 2017 S.D. 50, ¶ 46, 900 N.W.2d 840, 857 (alterations in

original) (quoting State v. Stock, 361 N.W.2d 280, 283 (S.D. 1985)). Here, the Littles

fail to establish any actual prejudice resulting from the Board’s alleged procedural

failures. Their claimed prejudice is not based upon lack of proper notice to the

public. Instead, it is a claim of personal prejudice that the Board’s lack of notice

caused them to be absent from the continued meeting. The Littles’ counsel received

actual notice before the July meeting, attended the meeting, presented the Littles’

objections to the application, raised no concerns about the adequacy of notice, and

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did not request a continuance of the meeting to present additional information or to

allow the Littles to be present. Further, the Littles were present at the June

meeting, where they personally presented their objections. The Littles failed to

establish that the alleged violations caused any prejudice. 9

Removal of Culvert and Driveway

[¶28.] The Littles further argue that the Board abused its discretion by not

considering Paulson’s alleged prior violations discussed in the 2019 proceeding—

removing the driveway and culvert without authorization. They claim the Board

should have required Paulson’s application to include a request to remedy these

alleged violations.

[¶29.] Paulson’s application does not refer to the culvert or driveway; instead,

it only seeks permission to clean out debris from a pre-existing ditch. But even if

the prior removal of the culvert or driveway had some impact on the drainage

application before the Board, the Township has governing authority over the road

right-of-way, including the ditch. The Township’s statement indicates that it

considered Paulson’s request to remove debris from the ditch and “remove the

current driveway and culvert without replacement.” The Township—as the body

with jurisdiction over the ditch—approved both requests. Given the Township’s

9. We are mindful of the Court’s holding in Abata, which stated that the
plaintiffs had not waived their due process objections to a commission’s
enactment of a zoning regulation by being present and being heard at the
meetings. 2019 S.D. 39, ¶ 17, 931 N.W.2d at 721. Today, our discussion of
the Littles’ participation in the hearings addresses the question of prejudice
as opposed to a waiver of their due process claim.

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consent, we cannot say the Board abused its discretion in approving the drainage

permit.

2. Whether the circuit court erred by denying the Littles’
request to present additional testimony.

[¶30.] The Littles contend that the circuit court erred by not permitting them

to present evidence that they allege would establish that the Township’s consent to

the permit was invalid due to a failure to post public notice of the special meeting

and to publish the minutes from the meeting.

[¶31.] “Questions of the relevance of proffered testimony are committed to the

discretion of the trial court and this [C]ourt will not reverse its ruling absent an

abuse of discretion.” State v. Olson, 408 N.W.2d 748, 752 (S.D. 1987). “Proffered

evidence is relevant under our rules if: (a) It has any tendency to make a fact more

or less probable than it would be without the evidence; and (b) The fact is of

consequence in determining the action.” In re E.T., 2019 S.D. 23, ¶ 18, 932 N.W.2d

770, 774 (quoting SDCL 19-19-401).

[¶32.] Hanson County Drainage Ordinance § 2.02 states, “[t]he applicant

must obtain written approval of the governing agency for any drainage into a road

right-of-way[.]” The record before the Board established that Paulson had received

the Township’s written approval. As discussed earlier, the Board had no obligation

to verify that the Township had complied with its notice requirements before

issuing its approval. Therefore, whether the evidence would establish the Township

failed to provide notice is not a fact of consequence in determining whether the

Board complied with its ordinances in granting the permit. Accordingly, the circuit

court did not abuse its discretion by denying the admission of this testimony.

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3. Whether the circuit court erred by denying the
Littles’ request to take judicial notice of the 2019
proceeding.

[¶33.] The Littles argue that the circuit court erred by failing to take judicial

notice of the 2019 proceeding. They claim that the record of the prior proceeding

established that Paulson removed a driveway and culvert from the drainage ditch

without obtaining a permit. In their view, the prior proceeding was relevant to

whether the Board abused its discretion in granting the permit without first

inquiring into the propriety of the Township’s consent. In particular, the Littles

assert that the record of the prior proceeding established that the Board was aware

that Paulson had removed a driveway and culvert from the drainage ditch without

obtaining a permit, and that the circuit court had found that the process utilized by

Paulson to get approval from the Township was flawed. They thus contend that the

Board should have required Paulson to remedy the prior improper removal of the

culvert and the driveway by reinstalling them before accepting the Township’s

consent and approving Paulson’s current application.

[¶34.] A circuit court’s denial of a request to take judicial notice is reviewed

under an abuse of discretion. See In re Dorsey & Whitney Tr. Co. LLC, 2001 S.D. 35,

¶ 19, 623 N.W.2d 468, 474. SDCL 19-19-201(b)(2) provides that a “court may

judicially notice a fact that is not subject to reasonable dispute because it . . . [c]an

be accurately and readily determined from sources whose accuracy cannot

reasonably be questioned.” However, “[t]he right to take judicial notice of . . . [a]

record, or other fact which may be considered properly by the court or jury, does not

mean that any such judicially noticeable matter is [a]dmissible in evidence.”

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Mendenhall v. Swanson, 2017 S.D. 2, ¶ 12 n.4, 889 N.W.2d 416, 420 n.4 (second

alteration added) (quoting Winekoff v. Pospisil, 181 N.W.2d 897, 899–900 (Mich.

1970)). “[A] fact judicially noticed must be relevant and may not violate

exclusionary rules of evidence.” Mendenhall, 2017 S.D. 2, ¶ 12 n.4, 889 N.W.2d at

420 n.4.

[¶35.] As discussed earlier, the circuit court correctly determined that

questions regarding the Township’s compliance with its notice requirements were

not properly before the court, and the Board was not required to examine the

validity of the Township’s consent. Therefore, the circuit court did not abuse its

discretion in declining to take judicial notice of the 2019 proceeding.

[¶36.] We affirm the circuit court’s decision upholding the Board’s approval of

Paulson’s application for a drainage permit.

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

Justices, concur.

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