#24497-a-JKM
2007 SD 130
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
CITY OF BROOKINGS, SOUTH DAKOTA, Plaintiff and Appellee,
v.
DONNA RAMSAY, dba DHR DESIGN
SERVICES, LTD., Defendant and Appellant.
* * * *
APPEAL FROM THE CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
BROOKINGS COUNTY, SOUTH DAKOTA
* * * *
HONORABLE JON R. ERICKSON
Judge
* * * *
STEVEN J. BRITZMAN Attorney for plaintiff
Brookings, South Dakota and appellee.
MICHAEL S. MCKNIGHT
CHARLES A. LARSON of
Boyce, Greenfield, Pashby & Welk, L.L.P. Attorneys for defendant
Sioux Falls, South Dakota and appellant.
* * * *
CONSIDERED ON BRIEFS
ON OCTOBER 1, 2007
OPINION FILED 12/19/07
#24497
MEIERHENRY, Justice
[¶1.] Donna Ramsay (Ramsay), d/b/a DHR Design Services, Ltd. was
convicted of three municipal ordinance violations. She was convicted of
unauthorized construction of a structure on a public sidewalk, failure to obtain a
building permit and violation of a stop work order. Ramsay filed a motion for a new
trial, which the circuit court denied. Ramsay appeals. We affirm.
FACTS
[¶2.] The charges against Ramsay stem from remodeling and renovations
she was making to a historic building in downtown Brookings, SD. The building is
referred to as the Old City Hall and Old Fire Hall. Ramsay began the interior
remodeling in 2000. Later, as part of the construction, Ramsay built a deck on one
of the building’s several entrances. The deck was elevated approximately forty
inches above the public sidewalk and extended over the sidewalk 1.5 feet. All of the
charges against Ramsay involve the non-compliance of the deck with the City
building code and her failure to discontinue construction of the deck after the
issuance of a stop work order.
[¶3.] In 2000, Ramsay obtained a building permit from the City of
Brookings. The City claimed the 2000 permit was valid for interior remodeling
only. Ramsay testified that she believed the permit also included plans for the
outside deck. After working on the interior renovations to the building, Ramsay
began construction of the deck in September, 2004. She contacted the City of
Brookings Building Services Administrator, Gregory Miller, to inspect the deck
structure prior to completion. Miller observed that the deck was protruding into the
-1-
#24497
public sidewalk area. Protrusions into public right-of-ways are prohibited by the
City code. Miller returned to his office and reviewed Ramsay’s 2000 building
permit. He concluded that the 2000 permit for interior remodeling did not cover the
non-attached external deck. He advised Ramsay that she needed to apply for a
separate building permit for the deck. Ramsay went to City Hall on September 15,
2004, to complete the paperwork. At that time, the City Engineer told Ramsay that
a new permit would not be approved if her building plan showed that the deck
would protrude onto the sidewalk. Ramsay’s only recourse was to request a
variance from the City Council.
[¶4.] Ramsay brought her petition for a variance before the Brookings City
Council on October 12, 2004. She was instructed by the Council to return on
October 26, 2004. The City Council neither granted nor denied Ramsay a variance.
The City Council passed a motion “to instruct the city manager and staff to define
approval criteria in regards to encroachments in the public right-of-way.” The City
approved Resolution No. 68-04 setting forth nine criteria for building in the public
right-of-way on November 23, 2004.
[¶5.] Ramsay was unable to meet the newly adopted criteria despite efforts
to do so. Thus, she did not obtain a permit or variance for the deck. Nevertheless,
she continued to build the deck without a permit. The City Engineer sent several
letters to Ramsay informing her of the necessity of obtaining a permit. Ramsay
acknowledged that she received the letters but failed to respond to them. In June,
2005, the City issued a stop work order. Ramsay continued construction of the deck
after the issuance of the stop work order. The City later filed charges against
-2-
#24497
Ramsay alleging that she had violated City Ordinances by 1) unauthorized
construction of a structure on a public sidewalk, 2) construction without a building
permit, and 3) construction in violation of a stop work order. Ramsay argued that
the City should be estopped from bringing charges against her. She claims that an
employee from the City zoning and building department had worked with her in the
earlier stages of the building project and that he had not told her of the necessity of
getting a separate permit for the deck. The circuit court found Ramsay guilty of the
charges. Ramsay appeals. She claims the circuit court erred on two grounds: (1) in
convicting her when there was insufficient evidence to warrant the convictions, and
(2) in denying her Motion for a New Trial.
Insufficiency of Evidence -- Estoppel
[¶6.] Ramsay argues the court erred in convicting her because there was
insufficient evidence to warrant the convictions. In reviewing “the sufficiency of the
evidence on appeal in a criminal case, the issue before this Court is whether there is
evidence in the record which, if believed by the [trier of fact], is sufficient to sustain
a finding of guilt beyond a reasonable doubt.” State v. Bordeaux, 2006 SD 12, ¶6,
710 NW2d 169, 172 (citation omitted).
[¶7.] Ramsay’s insufficiency of the evidence claim relies on her estoppel
defense. She claims that the City was estopped from denying that the 2000
building permit covered the construction of the deck; thus, the prosecution failed to
meet the elements of the charges against her. Ramsay claims that the previous
City Building Services Administrator, Ray Froelich, worked with her and advised
her on the building renovations over the years and had not told her she needed a
-3-
#24497
separate permit for the deck or that the deck did not comply with the building code.
Froelich was not called as a witness by either the City or Ramsay. Ramsay also
claimed that the configuration and placement of the deck was necessary to meet
requirements of the American Disabilities Act, Fire and Life Safety Codes and the
South Dakota State Historical Preservation Office. Ramsay argues Froelich’s
actions induced her to alter her position and to proceed with the construction of the
deck.
[¶8.] We have recognized the doctrine of equitable estoppel against
municipalities in our prior cases. See Even v. City of Parker, 1999 SD 72, ¶9, 597
NW2d 670, 674; City of Rapid City v. Hoogterp, 85 SD 176, 179, 179 NW2d 15, 16
(1970); Tubbs v. Custer City, 52 SD 458, 218 NW 599, 601 (1928); City of Deadwood
v. Hursh, 30 SD 450, 138 NW 1122, 1123 (1912); Missouri River Tel. Co. v. City of
Mitchell, 22 SD 191, 116 NW 67, 68 (1908). We explained the estoppel doctrine as
follows:
When considering the application of equitable estoppel, each
case is dependent on application of the doctrine to the specific
facts. When applying the doctrine to municipal corporations in
matters pertaining to their governmental functions. . . . [t]he
basis of its application . . . is . . . municipal officers . . . have
taken some affirmative action influencing another which
renders it inequitable for the municipality to assert a different
set of facts. More than municipal acquiescence . . . should be
required to give rise to an estoppel. The conduct must have
induced the other party to alter his position or do that which he
would not otherwise have done to his prejudice.
Even, 1999 SD 72, ¶12, 597 NW2d at 674 (internal citations omitted).
[¶9.] We also said we only apply estoppel against public entities in
“exceptional circumstances to ‘prevent manifest injustice.’” Id. at ¶11 (citations
-4-
#24497
omitted). “The burden of establishing that such exceptional circumstances are
present is on the party seeking the protection of the doctrine.” Hoogterp, 85 SD at
180, 179 NW2d at 17. “[E]ach case is dependent on application of the doctrine to
the specific facts.” Even, 1999 SD 72, ¶12, 597 NW2d at 674. Our “scope of review
as to whether an equitable estoppel exists is fully reviewable as a mixed question of
law and fact.” Id. ¶9.
[¶10.] Ramsay argues that estoppel applies because her situation was similar
to the facts in Even v. City of Parker. Id. ¶¶2-6. In Even, we held that the City of
Parker was estopped from denying the existence of a building permit for a pole-type
garage granted to Mr. Even. In that case, Even applied for a building permit. He
specified that he had purchased materials for a pole-type garage unit. The City
granted the request. Four days later, the City discovered that it granted the permit
in error because the pole-type garage units were not permitted by City ordinance.
The City revoked Mr. Even’s permit and denied his reapplication for a new permit.
We affirmed the circuit court’s finding that the City was estopped from denying Mr.
Even’s permit. We determined in Even that the City did not have a duty to tell
Even that his structure would not comply with the zoning ordinance, but did have a
duty not to create the impression of compliance and then withdraw approval after
Even had started to build the facility. Id. ¶14. We said,
The City did not have a duty to call to Even’s attention the fact
he could not build a garage of pole type construction under the
terms of the zoning ordinance. Nevertheless, the City may not,
through its agents, affirmatively create an objectively
reasonable impression in an applicant that he has fully complied
with all zoning requirements and then proceed to withdraw
permission after the applicant has taken steps towards
-5-
#24497
construction which result in a substantial detriment to the
applicant.
Id. ¶14 (citations omitted).
[¶11.] Ramsay argued that Froelich worked with her for four years without
notifying her that the 2000 building permit did not allow construction of the deck.
She further claimed that Froehlich was actively involved in the project and
consulted with her regularly. She claimed Froelich required her to make costly
changes and additions to the building in order to comply with ADA and Fire and
Life Safety Codes. Froelich was not called to testify, allegedly because he had
retired. The only evidence concerning whether Froehlich gave Ramsay “an
objectively reasonable impression” that she had “fully complied with all zoning
requirements” came from Ramsay’s own testimony. She admits, however, that the
plans for the deck had changed from the original drawing submitted with the 2000
permit application. Her testimony concerning Froehlich’s involvement centered
more on his advice on how to comply with ADA and Fire and Life Safety Codes. In
fact, her testimony seemed to indicate that the deck had not actually been approved
by Froehlich because she testified that she started construction on the deck
sometime after Froehlich retired. Ramsay testified that she initiated inspection of
the deck after she started building it in September of 2004. Miller, the employee
who inspected the deck, informed Ramsay that she needed to get a permit because
the 2000 permit did not include construction of the deck. At that time, she did not
disagree that she needed a permit and proceeded to apply for one.
[¶12.] The trial judge ruled that the 2000 building permit only covered
internal furnishing or remodeling. The court found that under the law, Ramsay
-6-
#24497
was required to get a second permit for the deck. The court also denied the estoppel
claim finding that because Ramsay’s building permit did not cover the deck
construction, the City had no duty and could not be equitably estopped from
asserting the need for a second building permit. Although the court’s comments on
the record as to estoppel are brief, we cannot say his conclusion on the issue was in
error. Ramsay bore the burden to bring forth facts necessary to establish that the
City (through its agent Froehlich) had created “an objectively reasonable
impression” that Ramsay’s deck plans had fully complied with the building code.
Her own testimony does not support such a finding. Although she may not have
realized she needed a second permit for the deck, she sought inspection from the
City before she finished the deck. At that point, Miller told her she needed a second
permit because the deck was not attached to the building. It was when she
attempted to acquire the second permit that her problems began. What happened
after that is not in dispute. The City never granted her the permit for the deck.
She admitted she continued to build the deck without the permit and in disregard of
the stop work order.
[¶13.] Despite Ramsay’s contention, the 2000 building permit on its face was
limited to the interior remodeling of the building. Neither the building permit nor
any other evidence indicates that the City induced Ramsay to begin construction on
the exterior deck. Since the City’s conduct did not induce Ramsay to alter her
position before beginning and proceeding with construction of the deck, Ramsay’s
equitable estoppel defense fails. The circuit court did not err in concluding the City
-7-
#24497
was not estopped from denying the existence of a valid building permit for exterior
construction.
Motion for a New Trial
[¶14.] Ramsay also claims that the circuit court erred by not granting her
motion for a new trial. We review denials of motions for a new trial under an abuse
of discretion standard. State v. Gehm, 1999 SD 82, ¶12, 600 NW2d 535, 539.
[¶15.] Ramsay moved for a new trial pursuant to SDCL 15-6-59(a) (6). This
statutory provision provides that a new trial may be granted if the evidence is
insufficient to justify the verdict or if the verdict is against the law. Ramsay argues
the circuit court abused its discretion because (1) the court lacked jurisdiction over
the case because the City failed to exhaust the administrative remedies; and (2) the
court impermissibly required Ramsay to comply with a retroactive City ordinance.
[¶16.] Ramsay argues the circuit court lacked subject matter jurisdiction
because the City failed to exhaust its administrative remedies prior to filing the
criminal complaints. Without subject matter jurisdiction, any decision rendered by
the court is void. See Barnes v. Matzner, 2003 SD 42, ¶10, n2, 661 NW2d 372, 375,
n2. “Failure to exhaust administrative remedies where required is a jurisdictional
defect.” S.D. Bd. of Regents v. Heege, 428 NW2d 535, 539 (SD 1988).
[¶17.] Ramsay argues the City could not file criminal charges against her
until the City Council made a final determination on her petition for a variance.
Ramsay cites two cases in support of her argument from other jurisdictions that
have held that the pending administrative proceedings are fatal to a prosecution
under these circumstances and deprive the circuit court of jurisdiction. She cites
-8-
#24497
City of Woburn v. McNutt Bros. Equipment Corp., 451 NE2d 437 (MassCtApp 1983)
and State v. Anonymous, 413 A2d 134 (ConnSuperCt 1980). Both cases are
distinguishable. The holdings of the cases are based on state statutory provisions
requiring the government to exhaust administrative remedies before bringing
criminal sanctions because the illegality of the defendants’ acts was contingent
upon the outcome of the administrative proceedings. In both Woburn and
Anonymous, Massachusetts and Connecticut state administrative procedure codes
provided for exhaustion of remedies by city and local governments.
[¶18.] Unlike the law in Massachusetts and Connecticut, the South Dakota
Administrative Procedures Act excludes cities. It applies to agencies but in the
Act’s definition of “agency”, SDCL 1-26-1(1), “any unit of local government” is
specifically excluded. SDCL 1-26-30. 1 Under South Dakota law, the City was not
required to exhaust administrative remedies. Thus, the circuit court had subject
matter jurisdiction over the criminal action.
[¶19.] Ramsay also claimed in her Motion for a New Trial that the circuit
court lacked jurisdiction because the Amended Judgment of Conviction required
1. Compare GL c 40A, § 7 (“No action, suit, or proceeding shall be maintained in
any court . . . except in accordance with the provisions of this section”) where
the Woburn court stated “GL c 40A, § 7 requires that local administrative
remedies, if available be exhausted before judicial relief is sought; and Conn.
Gen. Stat. s 47a-68 (establishing administrative remedies) where the court in
Anonymous held [a] [prosecution based upon municipal code violations
requires compliance with the procedural due process requirements of the
code” as applied to cities; with SDCL 1-26 30 providing: “A person who has
exhausted all administrative remedies available within any agency or a party
who is aggrieved by a final decision in a contested case is entitled to judicial
review under this chapter . . . .” See SDCL 1-26-1(1) (excluding local
governments from definition of agency).
-9-
#24497
Ramsay to comply with the City’s subsequently adopted criteria for a variance
(Resolution No. 68-04) in order for her fines to be suspended.2 Ramsay argues that
she should only be required to comply with the laws in place at the time she applied
for the permits.
[¶20.] Ramsay claims that because Resolution 68-04 was not passed until
October 26, 2004, the court erred in requiring compliance with the ordinance in
order for her fines to be suspended. Ramsay, however, cites no authority to support
her argument that an erroneous sentence provision entitled her to a new trial.
Ramsay’s argument is directed at a provision of the court’s suspended sentence
rather than any trial error. The City’s subsequently adopted criteria in Resolution
68-04 were not the basis of her charges nor did they enter into the court’s finding of
guilt. The court merely gave Ramsay the option of complying with the ordinance in
his sentencing order. If Ramsay could comply with the criteria in Resolution 68-04,
then the court would not impose her fines. Thus, we find no merit in her request for
a new trial based on the sentencing provision.
[¶21.] Ramsay also alleges that the City passed the ordinance in bad faith.
She cites examples of other Brookings residents who were previously granted
building permits allowing encroachments onto public rights-of-way. At the time of
Ramsay’s original application and the variances granted to other residents, the City
had no established criteria for granting encroachments onto public rights-of-way.
2. Ramsay’s basis for her motion for a new trial is lack of subject matter
jurisdiction. However, if the court lacks jurisdiction to hear the matter, then
a motion for a new trial would not be the appropriate remedy because the
court would lack jurisdiction upon remand as well.
-10-
#24497
Again, Ramsay cites no applicable authority requiring a new trial under these
circumstances, even presuming the bad faith allegations were true. 3
[¶22.] Therefore, the circuit court did not abuse its discretion in denying
Ramsay’s motion for a new trial. We affirm the circuit court on all issues.
[¶23.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and
ZINTER, Justices, concur.
3. Ramsay cites one case in support of her argument. Whitehead Oil Co. v. City
of Lincoln, 515 NW2d 390, 397 (Neb 1994) (holding new ordinances enacted
in bad faith cannot be retroactively applied). However, the facts of this case
are distinguishable, and further, do not support granting a new trial when
the retroactive ordinances were not a basis of guilt.
-11-