Kirwan v. City of Deadwood

#29836-a-MES
2023 S.D. 20

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

****

HARLAN KIRWAN and
PANDORA’S BOX, LLC d/b/a
GUNSLINGER SALOON, Appellants,

v.

CITY OF DEADWOOD, DEADWOOD
HISTORIC PRESERVATION
COMMISSION, DEADWOOD
HISTORIC DISTRICT COMMISSION, Appellees.

****

APPEAL FROM THE CIRCUIT COURT OF
THE FOURTH JUDICIAL CIRCUIT
LAWRENCE COUNTY, SOUTH DAKOTA

****

THE HONORABLE MICHELLE K. COMER
Judge

****

KIMBERLY PEHRSON of
Thomas Braun Bernard
& Burke, LLP
Rapid City, South Dakota Attorneys for appellants.

QUENTIN L. RIGGINS
MARIA CRITCHLOW of
Gunderson, Palmer, Nelson
& Ashmore, LLP
Rapid City, South Dakota Attorneys for appellees.

****

ARGUED
AUGUST 31, 2022
OPINION FILED 04/26/23
#29836

SALTER, Justice

[¶1.] Harlan Kirwan sought a certificate of appropriateness from the

Deadwood Historic District Commission to conduct renovations on a building he

owns located in the Deadwood Historic District. After a hearing, the Historic

District Commission voted to deny the certificate. Kirwan appealed to the circuit

court, which affirmed the decision. He now appeals to this Court, and we affirm.

Facts and Procedural History

[¶2.] To further our State’s interest in the preservation of historic property,

the Legislature has authorized “[a] county or municipality” to “establish by

ordinance one or more historic districts within the area of its jurisdiction.” SDCL 1-

19B-38. As part of this authorization, the Legislature has also required the

formation of a historic district commission “[w]henever an historic district is

established[.]” Id. A historic district commission is charged with, among other

things, approving or denying certificates of appropriateness, which are necessary to

alter the “exterior portion of any building” located within a historic district. SDCL

1-19B-42. “If the Historic District Commission determines that the proposed . . .

alteration . . . is appropriate, it shall forthwith approve such application and shall

issue to the applicant a certificate of appropriateness.” SDCL 1-19B-48.

[¶3.] Using its statutory authority, the City of Deadwood has established

the Deadwood Historic District (the Historic District), which includes the property

located in its downtown area. The City has also created the Deadwood Historic

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District Commission (the Commission), which appears to have seven members. 1

See SDCL 1-19B-40 (authorizing historic district commissions to have three to seven

members). The Commission members are assisted by a historic preservation officer.

To guide the Commission in making the determination of whether to issue a

certificate of appropriateness, the City has enacted Deadwood City Ordinance

(DCO) 17.68.050, which provides a number of general considerations, or factors, as

well as specific factors for new construction, exterior alteration, and demolition of

buildings within the Historic District.

[¶4.] Kirwan owns the Gunslinger Saloon located in the Historic District. It

functions as a combination clothing store and bar, much like it has at various times

since 1879 when the building was originally constructed. 2 In May 2020, Kirwan

decided to renovate the exterior of the building by covering the existing facade with

vertical slats of rough-hewn wood made from pine trees harvested from the Black

Hills. The existing facade that Kirwan covered was not original to the building, but

it was a variation of the initial design, which consisted of painted horizontal wood

lap siding. Kirwan later stated that he thought the rough-hewn design was more

aesthetically pleasing than the painted siding and better reflected the “boomtown”

look of the buildings in Deadwood prior to 1879.

1. The imprecision is a consequence of the relative completeness of the record
and the fact that it appears that two similar-sounding commissions—the
Deadwood Historic District Commission and the Deadwood Historic
Preservation Commission—conduct joint meetings and may well have the
same members. See infra note 5.

2. A fire destroyed much of the town of Deadwood in the fall of 1879. The
building now occupied by the Gunslinger Saloon was constructed after the
fire.

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[¶5.] Despite the obligation to seek permission for the modification before

undertaking it, Kirwan did not apply for a certificate of appropriateness from the

Commission until after renovating the Gunslinger Saloon’s facade. See SDCL 1-

19B-42 (requiring a certificate of appropriateness prior to altering a building within

a historic district). The Commission denied his belated application and ordered

Kirwan to remove the pine wood facade. 3

[¶6.] After the denial of the certificate, Kirwan and his attorney met with

Deadwood Historic Preservation Officer Kevin Kuchenbecker in an effort to discuss

an acceptable plan for the renovation. At the meeting, Kuchenbecker provided

Kirwan with the earliest known photographs of the Gunslinger Saloon building,

dating back to the early 1900s. Kuchenbecker advised Kirwan that the rough-hewn

pine wood design may have been characteristic of the “boomtown” era, but it was

inconsistent with the more modern design of the buildings that were constructed

after 1879. In this regard, the photographs reveal that the building’s original look

was more consistent with the existing, painted lap siding facade. Kuchenbecker

also offered Kirwan several alternative renovation concepts that would not alter the

important historical details of the facade.

3. Kirwan received a letter advising him of the denial and stating he had a right
to seek review in circuit court within 30 days, but he did not appeal what
may well have been a final administrative action by the Commission. The
parties have not raised a question of appellate jurisdiction in this appeal,
which involves a later and essentially identical application, and the
jurisdictional issue is complicated by the fact that the procedural rules
governing appeals from historic district commissions are uncertain, as
explained further below.

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[¶7.] Despite this, Kirwan applied for a new certificate of appropriateness in

February 2021, once again requesting permission to cover the existing facade with

pine wood, as he had in his initial application. Prior to the Commission’s hearing

on the application, Kuchenbecker submitted a “Staff Report” to the Commission in

which he described Kirwan’s proposed renovations.

[¶8.] The Staff Report chronicled the history of the Gunslinger Saloon

building and described the facade design on similar buildings of the same era.

Kuchenbecker ultimately recommended that the application be denied. Though it

did not expressly cite DCO 17.68.050, the Staff Report did state and apply several of

the factors contained in the ordinance. The Staff Report also referenced “Standards

for Rehabilitation” issued by the United States Department of the Interior, see 36

C.F.R. § 67.7. 4 Based at least partially on the Department of Interior standards,

Kuchenbecker concluded that “the proposed work . . . does encroach upon, damage

or destroy a historic resource and has an adverse effect on the character of the

building[.]”

[¶9.] At the application hearing, Kuchenbecker noted that at the time the

Gunslinger Saloon building was constructed, “the boomtown architecture, the rough

sawn lumber storefronts and the log cabins and canvas tents [had] disappeared.”

He reiterated the importance of “maintain[ing] the traditional site layout and

material of [the building]” and cautioned that “[a]ltering these traditional elements

4. All property within the downtown area of the City was designated as a
National Historic Landmark District by the Department of Interior in 1989.
See National Register of Historic Places,
https://npgallery.nps.gov/GetAsset/669730fb-5825-4ba1-b11d-2a476357de9d
(lasted visited January 18, 2023).

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by introducing non-painted materials and stylistic elements as proposed” would be

incompatible with the building’s historic character. Kuchenbecker also reviewed

the Standards of Rehabilitation with the Commission and stated that the balance of

those factors weighed in favor of denying the permit.

[¶10.] Through his counsel, Kirwan argued that the rough-hewn facade was

representative of the buildings that existed in Deadwood circa 1875—when the

town was founded. Kirwan claimed that the technique used for fashioning the

rough-hewn lumber was consistent with the tools used by early settlers of the town,

and rather than reflecting historical inaccuracy, he believed the new facade would

“help to bring [Deadwood’s] history to life[.]”

[¶11.] The Commission questioned Kuchenbecker about the evolution of the

building’s design and architecture. The discussion focused principally on a 1913

photograph of the Gunslinger Saloon building attached to the Staff Report.

According to Kuchenbecker, the photograph reflected the oldest evidence of the

building’s design and depicted “the horizontal lap siding that it has today.”

[¶12.] Several members of the Commission expressed concern about altering

the building as Kirwan proposed. One member stated, “I think we have to be really

careful because this [sic] are our oldest buildings. . . . I think changing it is a really

big deal[.]” Another member suggested “that if any changes were to be made that it

should be taken back to its more original look, not add something that’s new that

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was never there. I don’t think that’s the purpose of a historic district.” The

Commission ultimately voted unanimously to deny the application. 5

[¶13.] Kirwan appealed the Commission’s decision to the circuit court.

Attached to the Commission’s appellate brief to the circuit court was a previously

unfiled affidavit of Kuchenbecker, in which he provided the details of his discussion

with Kirwan and his attorney after the denial of Kirwan’s original application. In

his reply brief, Kirwan objected to Kuchenbecker’s affidavit, claiming it had been

improperly submitted.

[¶14.] The circuit court conducted a hearing and heard argument on the

Commission’s decision to deny the permit as well as on the submission of

Kuchenbecker’s affidavit. As to the affidavit, counsel for the Commission explained

that the affidavit was necessary to respond to Kirwan’s argument on appeal that

the Commission had violated an ordinance by not meeting with him prior to a

hearing on his application. The court accepted the Commission’s explanation and

admitted Kuchenbecker’s affidavit.

5. Kirwan notes that it is unclear which administrative body heard and denied
his application—the Deadwood Historic Preservation Commission or the
Deadwood Historic District Commission. He points specifically to the letter
notifying him of the denial, which uses the “Historic Preservation
Commission” letterhead but states the “Historic District Commission” was
the body that denied the application. Though the difference between the two
may sound semantic, it is not. Our statutes recognize that each is a distinct
body with distinct powers. Compare SDCL 1-19B-42 (authorizing a historic
district commission to hear and decide applications for certificates of
appropriateness), with SDCL 1-19B-2 (authorizing a county or municipality
to “establish an historic preservation commission, to preserve, promote, and
develop the historical resources of such county or municipality”). However,
Kirwan does not allege the lack of clarity furnishes a basis to challenge the
denial of the certificate of appropriateness.

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[¶15.] Regarding the denial of his application itself, Kirwan’s principal

argument was that the Commission failed to comply with DCO 17.68.050. The

ordinance lists eight “general factors” that focus upon the property or “resource,” its

historic significance, and the nature of the proposed alteration. Additional specific

factors for new construction and exterior alterations emphasize the need to conform

contemporary changes with the historic character of the property and the area.

Because DCO 17.68.050 states that “[t]he historic district . . . commission[ ] shall

use the following criteria and established design review guidelines in granting or

denying certificates of appropriateness[,]” Kirwan claimed that the Commission’s

decision cannot be sustained because it did not expressly reference each of the

factors. The Commission compounded the problem, Kirwan argued, by relying upon

similar factors promulgated by the Department of Interior.

[¶16.] Kirwan made a separate argument alleging that the Commission’s

written notice of its decision to deny his application for a certificate of

appropriateness failed to comply with the technical requirements of SDCL 1-19B-

49. The statute provides that “the commission shall place upon its records the

reasons for such determination and shall forthwith notify the applicant of such

determination, furnishing the applicant an attested copy of its reasons therefor and

its recommendations, if any, as appearing in the records of the commission.” Id.

[¶17.] Kirwan was present for the Commission’s consideration of his

application and the vote denying it, and he later received a letter from

Kuchenbecker that stated “based upon the guidance found in DCO 17.68.050, the

exterior alteration proposed is incongruous with the historical, architectural,

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archeological or cultural aspects of the district[.]” In Kirwan’s view, however,

Kuchenbecker’s letter was merely a “form letter” unsupported by particular reasons

for the denial of his application.

[¶18.] Finally, Kirwan challenged the sufficiency of the Commission’s factual

findings, alleging they were not supported by “substantial evidence.” Specifically,

he claimed the 1913 photograph did not accurately depict the style of the building in

1879. Kirwan also argued that the Commission overlooked the fact that his

proposed renovations would not impact other historical exterior features, including

the recessed storefront entry, the use of wood as the primary siding material, and

the dimensions of the display windows.

[¶19.] The circuit court issued an oral decision at the conclusion of the

hearing in which it affirmed the Commission’s decision. Applying a substantial

evidence standard of review, the court determined that the Commission considered

the appropriate criteria and that its factual findings were adequately supported by

the record.

[¶20.] Kirwan now appeals to this Court, raising several issues, which we

have restated as follows:

1. Whether the Commission complied with applicable
Deadwood city ordinances.

2. Whether the Commission complied with SDCL 1-19B-49.

3. Whether the Commission’s stated reasons for denying
Kirwan’s application for a certificate of appropriateness
were clearly erroneous.

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Analysis and Decision

Standard of Review

[¶21.] We review issues of statutory interpretation as questions of law under

our de novo standard of review. Jensen v. Kasik, 2008 S.D. 113, ¶ 4, 758 N.W.2d 87,

88 (citation omitted). The same is true for interpreting ordinances. Brant Lake

Sanitary Dist. v. Thornberry, 2016 S.D. 66, ¶ 5, 886 N.W.2d 358, 360. Determining

the appropriate standard of review for the Commission’s factual findings is more

difficult. 6

[¶22.] Although the Legislature has expressly authorized appeals from the

decisions of historic district commissions, it has not prescribed guidance for

procedural rules or the applicable standard of review. See SDCL 1-19B-50 (“Any

applicant aggrieved by a determination of the Historic District Commission may

appeal to the circuit court for the county in which the land concerned is situated.”).

The parties and the circuit court have all operated under the view that the

Commission’s factual findings should be tested against a “substantial evidence”

standard, citing our decision in Olson v. City of Deadwood, 480 N.W.2d 770, 774

(S.D. 1992). But this view is problematic, as a close reading of Olson reveals.

[¶23.] In Olson, we reviewed the zoning decision of a municipal adjustment

board—not a determination by a historic district commission—pursuant to a writ of

6. Kirwan suggests that we are reviewing only the decision of the circuit court,
but we generally regard the circuit court as an intermediate appellate court
in administrative appeals. See e.g., In re Tinklenberg, 2006 S.D. 52, ¶ 11, 716
N.W.2d 798, 801 (“Our standard of review of an administrative appeal is the
same as that of the circuit court.”).

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certiorari—not a traditional administrative appeal. These critical differences

render Olson inapposite on its face.

[¶24.] Perhaps adding to the confusion regarding Olson’s applicability here is

the fact that our formulation of the certiorari standard in Olson was sourced to

dicta in our 1954 decision in Graves v. Johnson, 75 S.D. 261, 266, 63 N.W.2d 341,

344 (1954), which incorporated the substantial evidence rule—a concept no longer

reflected in our more contemporary view that “[c]ertiorari cannot be used to

examine evidence for the purpose of determining the correctness of a finding[,]”

Dunham v. Lake County Commission, 2020 S.D. 23, ¶ 11, 943 N.W.2d 330, 334

(quoting Hines v. Board of Adjustment of Miller, 2004 S.D. 13, ¶ 10, 675 N.W.2d

231, 234). Instead, judicial inquiry in certiorari cases is limited “to whether the

[tribunal] had jurisdiction over the matter and whether it pursued in a regular

manner the authority conferred upon it.” Id. ¶ 10, 943 N.W.2d at 333 (quoting

Wedel v. Beadle Cnty. Comm’n, 2016 S.D. 59, ¶ 11, 884 N.W.2d 755, 758).

[¶25.] By providing a statutory basis to “appeal” decisions of a historic

district commission to circuit court in SDCL 1-19B-50, it seems the Legislature

intended a more conventional type of review—not the limited review afforded by the

certiorari process. But the question concerning the correct standard of review

persists.

[¶26.] In their appellate submissions, both parties continue to apply the

substantial evidence test for the Commission’s factual findings as they did before

the circuit court. Curiously, though, Kirwan has also identified the clearly

erroneous standard set out in our Administrative Procedures Act (APA) at SDCL 1-

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26-36 as the correct standard for reviewing factual findings. 7 But we are not

convinced the APA applies here because the Commission does not appear to be an

agency.

[¶27.] The APA’s definition of an “agency” generally includes executive

branch departments, boards, and commissions, but it does not include

municipalities unless they operate under a home rule charter and have “adopted

[their] own administrative appeals process, whose final decisions, rulings, or actions

rendered by that process are subject to judicial review pursuant to [SDCL chapter

1-26].” SDCL 1-26-1(1). Nothing in the record suggests that the Commission

satisfies the definition of an agency, and the parties have not asserted otherwise.

[¶28.] Still, Kirwan’s invocation of SDCL 1-26-36 finds some support in our

In re B.Y. Development, Inc. decision, though perhaps not sustainable support. See

2000 S.D. 102, 615 N.W.2d 604. In B.Y. Development, we cited SDCL 1-26-36 in our

standard of review discussion relating to a decision of the similar, but distinct,

Deadwood Historic Preservation Commission. Id. ¶ 6, 615 N.W.2d at 607–08. But

we did so not because the Deadwood Historic Preservation Commission was an

agency—we held it was not—but rather because a separate statute, not implicated

here, required the application of SDCL 1-26-36. See SDCL 1-19A-11.1 (authorizing

7. The provisions of SDCL 1-26-36 state in relevant part, that when reviewing
an agency decision,

[t]he court may reverse or modify the [agency’s] decision if
substantial rights of the appellant have been prejudiced because
the administrative findings, inferences, conclusions, or decisions
are: . . . (5) Clearly erroneous in light of the entire evidence in
the record; or (6) Arbitrary or capricious or characterized by
abuse of discretion or clearly unwarranted exercise of discretion.

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appeals “pursuant to the provisions of chapter 1-26” for decisions of a political

subdivision’s governing body relating to projects that impact “historic property

included in the national register of historic places or the state register of historic

places”). 8

[¶29.] We make one additional comment about Kirwan’s invocation of both

the substantial evidence and the clearly erroneous standards of review: they are not

interchangeable. The clearly erroneous standard is different than the substantial

evidence rule, as we have recognized. See Sopko v. C & R Transfer Co., 1998 S.D. 8,

¶ 7 n.2, 575 N.W.2d 225, 228 n.2 (“On the deference spectrum, clearly erroneous fits

somewhere between de novo (no deference) review and substantial evidence

(considerable deference) review.” (quoting 1 S. Childress & M. Davis, Federal

Standards of Review § 15.03 at 15–17 (2d ed. 1992)). 9

[¶30.] Though the standard used would not be outcome determinative here,

we do think it is important to determine a standard of review for this class of

administrative appeals. Doing so will provide clarity for parties and circuit courts

in the absence of a specific statutory standard of review. Drawing upon the

standard widely used to review factual findings in administrative appeals under

8. Nothing in SDCL 1-19B-50 or any other provision of chapter 1-19B
specifically incorporates the APA, as SDCL 1-19A-11.1 does.

9. Apropos of nothing perhaps, but SDCL 1-26-36 did, at one time, require
factual findings of administrative agencies to be reviewed under the
substantial evidence standard, but that was prior to a 1978 amendment to
the statute. See Sopko, 1998 S.D. 8, ¶ 7, 575 N.W.2d at 229; see also In re
Ehlebracht, 2022 S.D. 46, ¶¶ 24–26, 978 N.W.2d 741, 749–50 (noting the
distinction between the substantial evidence and clearly erroneous standards
and citing Sopko).

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SDCL 1-26-36 and, more broadly, in the common law, we conclude that a clearly

erroneous standard of review is justified as a prudential matter. The deferential

clearly erroneous standard is a familiar and acceptable means by which courts

routinely review factual findings. The standard also serves to acknowledge not only

a fact-finder’s advantage for weighing evidence, but also the limitations of reviewing

courts. Using the clearly erroneous standard, we will reverse only “[i]f after careful

review of the entire record we are definitely and firmly convinced a mistake has

been committed[.]” Sopko, 1998 S.D. 8, ¶ 6, 575 N.W.2d at 228.

Compliance with Deadwood City Ordinances

[¶31.] The provisions of DCO 17.68.030 recognize the creation of the

Commission. 10 The ordinance also establishes requirements for members of the

Commission and its authority “[t]o issue or deny the issuance of certificates of

appropriateness[.]” As we indicated above, a separate ordinance, DCO 17.68.050,

lists “general factors” that the Commission “shall use” in its determination of an

application for a certificate of appropriateness:

1. Architectural design of the resource and proposed alteration;
2. Historical significance of the resource;
3. General appearance of the resource;
4. Condition of the resource;
5. Materials composing the resource;
6. Size of the resource;
7. The relationship of the above factors to, and their effect upon
the immediate surroundings and upon the district as a whole
and its architectural and historical character and integrity;
and
8. The location and visibility of the alteration and resource.

10. The text of DCO 17.68.030 does not, itself, establish the Deadwood Historic
District or the Commission, but acknowledges that it was created by a
separate ordinance not implicated here.

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[¶32.] Also listed in DCO 17.68.050 are criteria for the Commission to

consider when the certificate of appropriateness application involves “exterior

alteration”:

1. All exterior alterations to a building, structure, object, site or
landscape feature shall be compatible with the resource itself
and other resources with which it is related. The original
design of a building, structure, object or landscape feature
shall be considered in applying these standards.
2. Exterior alterations shall not affect the architectural
character or historic quality of a resource and shall not
destroy the significance of resource sites.

[¶33.] Kirwan claims that DCO 17.68.050 requires the Commission to

explicitly make findings concerning all the “general” and “exterior alteration”

factors when considering a certificate of appropriateness. This much is clear from a

plain reading of the ordinance, Kirwan argues, because the ordinance uses the

mandatory verb “shall” followed by a syndetic list. In Kirwan’s view, the

Commission failed to follow the directive of the ordinance because “the criteria from

DCO 17.68.050 were never formally discussed or considered by either the Historic

District Commission or in the Staff Report.”

[¶34.] We agree that the use of the verb “shall” indicates a clear command

that the Commission must use the enumerated factors listed in the ordinance when

it considers an application for a certificate of appropriateness. See Discover Bank v.

Stanley, 2008 S.D. 111, ¶ 21, 757 N.W.2d 756, 762 (“[W]hen ‘shall’ is the operative

verb in a statute, it is given ‘obligatory or mandatory’ meaning.” (citation omitted)).

However, Kirwan’s argument that this language means the Commission must

consider every factor in all instances, even when one does not apply, and issue

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discrete, corresponding factual findings is not supportable under a more

comprehensive reading of the ordinance.

[¶35.] For example, DCO 17.68.050 also contains six standards for “[n]ew

construction” and seven for “[d]emolition” of a building within the Historic District,

none of which are implicated here. Under Kirwan’s reading of the ordinance, a

legally sound decision by the Commission must include explicit findings on each of

those factors regardless of whether the applicant is contemplating new construction

or demolition. 11 But this interpretation has textual and practical impediments.

[¶36.] As a textual matter, the ordinance itself does not require the

Commission to issue findings of fact at all. Of course, the presence of factual

findings can assist with meaningful appellate review, but even in proceedings in

which findings are required, their absence is not necessarily fatal where the record

will otherwise support review. See Batchelder v. Batchelder, 2021 S.D. 60, ¶ 22, 965

N.W.2d 880, 886 (holding that even where findings are required, “an appellate court

may decide the appeal without further findings if it feels it is in a position to do so”

(citation omitted)). 12

11. Kirwan himself did not address each of the individual factors set out in DCO
17.68.050 in his application.

12. Kirwan also claims that the circuit court failed to make findings of fact, but
this argument overlooks the fact that its principal authority, SDCL 1-26-36,
does not apply, in its entirety, to decisions of a historic district commission,
as we noted above. And, in any event, SDCL 1-26-36’s requirement that “[a]
court shall enter its own findings of fact and conclusions of law,” only applies
if the court does not affirm the agency’s decision. See Amundson v. S.D. Bd.
of Pardons & Paroles, 2000 S.D. 95, ¶ 29, 614 N.W.2d 800, 806 (holding that
under SDCL 1-26-36, the circuit court is required to “enter its own findings of
(continued . . .)
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[¶37.] In addition, we do not read DCO 17.68.050’s language—“[the

Commission] shall use the following criteria”—as an unyielding litany of factors

that must be considered even where they are not implicated. Instead, the ordinance

serves as a directive to the Commission to use the factors listed to guide the

decision-making process and ensure that the ordinance is evenly applied. For this

reason, the mandatory phrase of DCO 17.68.050 does not inflexibly enjoin the

Commission to consider inapplicable factors. Therefore, we must determine

whether the Commission considered the relevant factors in deciding Kirwan’s

application, and we conclude it did.

[¶38.] The Staff Report, from which Kuchenbecker read large portions at the

Commission hearing, begins with two substantive paragraphs discussing the

“historic significance of the resource” and the “architectural design of the resource

and proposed alterations”—both factors which are specifically listed in DCO

17.68.050. The report also analyzes at length the “general appearance of the

resource” factor of DCO 17.68.050, noting the Gunslinger Saloon building “consists

of very simple detailing on the store front and is of traditional design.”

Kuchenbecker’s report also discusses the ordinance’s “materials composing the

resource” factor by indicating the building is currently “a wooden structure” and

that the proposed renovations will result in a new, wood facade.

[¶39.] The report further discusses the “exterior alteration” factors,

commenting on the building’s “original design,” “architectural character,” and

________________________
(. . . continued)
fact and conclusions of law when reversing or modifying an administrative
agency’s decision”).

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“historic quality.” Additionally, at the conclusion of the hearing, the Commission

passed a motion that found “[b]ased upon guidance found in DCO 17.68.050 . . . the

exterior alteration proposed is incongruous with the historical, architectural,

archaeological, or cultural aspects of the district.” For these reasons, we cannot

accept Kirwan’s assertion that “the criteria in DCO 17.68.050 was never discussed.”

Under Kirwan’s view, we would vacate the Commission’s denial and remand the

case for the unnecessary consideration of factors relating to new construction and

demolition, which unquestionably do not apply.

[¶40.] Kirwan acknowledges that the “Commission may have stumbled into

addressing some of the required factors through individual comments and

questions[,]” but he appears to find fault with the portion of the three-page Staff

Report that applied specific federal regulatory standards promulgated by the

Department of Interior for properties included within National Historic Landmark

Districts. See 36 C.F.R. § 67.7(b) (listing ten standards for “specific rehabilitation

projects”). However, Kirwan overlooks the fact that these standards also emphasize

retaining a property’s historic elements and discourage alterations that compromise

the historic characteristics of the property, as DCO 17.68.050 does. See e.g., 36

C.F.R. § 67.7(b)(5) (“Distinctive features, finishes, and construction techniques or

examples of craftsmanship that characterize a historic property shall be

preserved.”); 36 C.F.R. § 67.7(b)(9) (“New additions, exterior alterations, or related

new construction shall not destroy historic materials that characterize the

property.”). Further, despite his criticism of the Commission’s reference to these

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federal standards, Kirwan does not directly claim their use can provide a basis for

reversal. 13

[¶41.] Under the circumstances, the Commission hearing appears to have

been a purposeful effort to apply the relevant factors in the ordinance and reach a

conclusion that it believed to be focused on the preservation of historic property.

Given the record before us, we conclude the Commission complied with the

applicable Deadwood city ordinances.

Compliance with SDCL 1-19B-49

[¶42.] The text of SDCL 1-19B-49 provides:

If the Historic District Commission determines that a certificate
of appropriateness should not be issued, the commission shall
place upon its records the reasons for such determination and
shall forthwith notify the applicant of such determination,
furnishing the applicant an attested copy of its reasons therefor
and its recommendations, if any, as appearing in the records of
the commission.

[¶43.] Kirwan claims the Commission did not follow the requirements in the

statute because it did not “place upon its records the reasons” for its denial or

“furnish[ ] the applicant an attested copy of its reasons[.]” We do not believe either

of these arguments is sustainable. As to the former, the reasons for the denial of

Kirwan’s application appear clearly in the record generated by the Commission as

13. Though not central to our discussion here, the use of the federal standards
may be justified by the fact that the Gunslinger Saloon appears to be
included in an area identified by the City as a “historic overlay zone” that is
coterminous with the federally designated Deadwood National Historic
Landmark District. But regardless, the degree of overlap between the federal
standards and the criteria listed in DCO 17.68.050 is so extensive that we are
unable to determine a meaningful difference between the two, at least insofar
as the circumstances of this case are concerned. Counsel for Kirwan was
similarly unable to identify any fundamental differences at oral argument.

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evidenced by the transcript of the hearing and the Staff Report prepared by

Kuchenbecker and considered by the Commission.

[¶44.] As to the notice-of-reasons requirement, Kirwan claims that “[t]he

form letter from Mr. Kuchenbecker does not satisfy” SDCL 1-19B-49. But Kirwan

does not cite any authority for this proposition, and we think the letter, dated

March 11, 2021, and signed by Kuchenbecker, expresses precisely the reason the

application was denied: “based upon the guidance found in DCO 17.68.050, the

exterior alteration proposed is incongruous with the historical, architectural,

archaeological or cultural aspects of the district[.]” 14

[¶45.] Kirwan’s observation that the Commission did not comply with SDCL

1-19B-49’s requirement to provide him with an “attested copy” of the reasons for its

denial is factually accurate. (Emphasis added.) Although Kirwan’s notice of the

denial was signed by Kuchenbecker, it did not contain an attestation, which

generally requires a person to bear witness, or testify, or affirm a document to be

true or genuine. See Attest, Black’s Law Dictionary (11th ed. 2019).

[¶46.] The lack of an attestation, however, does not, itself, require reversal.

Kirwan has not claimed that his substantial rights were affected in any way by the

lack of attestation. Nor has he claimed that the denial letter from Kuchenbecker

was not genuine or that it did not correctly reflect the Commission’s action. Indeed,

14. This is similar to the motion that the members of the Commission approved
at the hearing to consider Kirwan’s application for a certificate of
appropriateness. He suggests we should view this language with skepticism
because it was prepared for the Commission members by its staff. But
Kirwan fails to explain how this fact would render the Commission’s ultimate
vote unauthorized, or even how the practice is all that unusual.

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Kirwan and his attorney were personally present at the Commission’s meeting

concerning his second application and participated in the Commission’s

consideration. See Mimick v. U.S., 952 F.2d 230, 232 (8th Cir. 1991) (holding that

administrative summonses that failed to comply with a federal statutory attestation

requirement were, nevertheless, enforceable where there was “[n]o evidence . . . that

any of the summoned parties hesitated to act or lost substantial rights because of

the absence of an attestation . . . [and] the copies served [were] true and correct

copies of the originals and lack only the attestation”).

[¶47.] In addition to his claims regarding technical compliance with SDCL 1-

19B-49, Kirwan also argues more broadly that the Commission failed to sufficiently

develop a factual record that would provide an opportunity for meaningful review.

We view the record differently. The discussion reflected in the Commission meeting

transcript and the material considered by the Commission, including the Staff

Report, provide a clear and unmistakable basis on which to conduct appellate

review, and we perceive no difficulty in this regard.

Denial of the Certificate of Appropriateness

[¶48.] Kirwan notes that the Commission’s basis for denying his application

was that his proposal was “incongruous with the historical, architectural,

archeological or cultural aspects of the district” and argues that these stated

reasons were not supported by “substantial evidence” and reflected only “vague

reservations” about the appropriateness of Kirwan’s proposal. But as we have

explained above, we review these factual findings by the Commission for clear error,

and our review of the record reveals no such error. The Commission was correctly

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oriented to the appropriate factors, and its decision denying Kirwan’s application

for a certificate of appropriateness is supported by the record.

[¶49.] The transcript from the hearing reveals that the Commission engaged

in a substantive review of Kirwan’s application, which centered on his principal

claim that using rough-hewn pine on the exterior of his building would advance the

historical character of the building. But Kirwan’s bare claim lacked factual support,

and the members of the Commission received contrary evidence in the form of

photographs and the statements of the historic preservation officer, Kuchenbecker.

He offered an unrebutted explanation that “this building was built in 1879, and so

the boomtown architecture, the rough sawn lumber storefronts and the log cabins

and canvas tents [had] disappeared[,]” along with his ultimate opinion that

Kirwan’s “proposal does not retain the characteristics that define this building.”

[¶50.] Kirwan argues that the Commission overlooked the fact that other

features of the facade would be unaffected by his proposal and relied too heavily

upon the 1913 photograph. However, the record makes clear that the Commission

was keenly aware that certain features of the Gunslinger Saloon building’s facade

would remain unchanged under Kirwan’s proposal, but regardless, both arguments

relate to the weight of the evidence considered by the Commission—a topic

distinctly ill-suited for appellate review. 15 See Huether v. Mihm Transp. Co., 2014

15. Kirwan also argues that the circuit court should not have enlarged the
administrative record by allowing an affidavit from Kuchenbecker that was
not presented to the Commission. The affidavit related to whether
Kuchenbecker satisfied a requirement to meet with Kirwan prior to the
hearing on the application, but compliance with a “meet and confer”
obligation is not identified as an issue on appeal. Accordingly, the issue does
(continued . . .)
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S.D. 93, ¶ 30, 857 N.W.2d 854, 864 (“[T]his Court will not usurp the [factfinder]’s

function in resolving conflicts in the evidence, weighing credibility, and sorting out

the truth.” (citations omitted)).

Conclusion

[¶51.] The Commission complied with DCO 17.68.050 and properly

considered the relevant factors from the ordinance when it considered Kirwan’s

application. The Commission’s ultimate decision denying the application either

complied with the technical requirements of SDCL 1-19B-49 or the noncompliance

did not impact Kirwan’s substantial rights. Finally, the Commission’s factual

determinations underlying its decision to deny the certificate of appropriateness are

supported by the record and were therefore not clearly erroneous. For these

reasons, we affirm.

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

Justices, concur.

________________________
(. . . continued)
not appear to represent a live, justiciable controversy, and we decline to
consider it.

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