#25237-rev & rem-SLZ
2010 SD 5
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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CITY OF DEADWOOD Plaintiff and Appellant,
v.
M. R. GUSTAFSON FAMILY TRUST, Defendant and Appellee.
* * * *
APPEAL FROM THE CIRCUIT COURT OF
THE FOURTH JUDICIAL CIRCUIT
LAWRENCE COUNTY, SOUTH DAKOTA
* * * *
HONORABLE WARREN G. JOHNSON
Judge
* * * *
JASON A. CAMPBELL
City of Deadwood Attorney for plaintiff
Deadwood, South Dakota and appellant.
ROGER A. TELLINGHUISEN
MARYA VROOMAN TELLINGHUISEN of
Tellinghuisen & Gordon, PC Attorneys for defendant
Spearfish, South Dakota and appellee.
* * * *
CONSIDERED ON BRIEFS
ON NOVEMBER 16, 2009
OPINION FILED 01/13/10
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ZINTER, Justice
[¶1.] The M.R. Gustafson Family Trust (Gustafson) sought to demolish a
building located in the City of Deadwood (City). The building was included on both
the national and state registers of historic places. The City informed Gustafson
that, under a City ordinance, review and permitting by the local Historic
Preservation Commission (HPC) was necessary to demolish the building. Gustafson
contended that such a review was not required under a proper interpretation of the
statute authorizing the City ordinance. The City sued, and Gustafson
counterclaimed to determine whether HPC review and permitting were required.
The circuit court granted declaratory relief allowing Gustafson to demolish the
building without HPC review. We reverse.
Facts and Procedural History
[¶2.] Gustafson is the owner of the “Sinclair Station,” a former gas station
located at 300 Main Street in Deadwood. The building has been unoccupied for
years. Although the City had not adopted an ordinance designating the building as
a local historic property under SDCL 1-19B-20 through 24, 1 the property was listed
as a historic property on both the national and state registers of historic places.
1. These statutes prescribe a procedure by which cities may adopt ordinances
designating properties within cities as local historic properties. If a property
is designated as a local historic property, the HPC may then require a 180-
day waiting period in which the parties negotiate alternatives to demolition,
alteration, remodeling, or removal. See SDCL 1-19B-23 and 27. Although
the City has not attempted to invoke this 180-day waiting period in
accordance with SDCL 1-19B-21 through 24, the circuit court concluded that
these local designation statutes were incorporated within SDCL 1-19B-62,
the statute we are reviewing on appeal. Because the local designation
(continued . . .)
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(. . . continued)
statutes necessary to invoke the 180-day waiting period were incorporated by
the circuit court, they are set forth below.
SDCL 1-19B-20 provides:
The local governing body of any county or municipality may
adopt an ordinance designating one or more historic properties
on the following criteria: historical, architectural,
archaeological, and cultural significance; suitability for
preservation or restoration; educational value; cost of
acquisition, restoration, maintenance, operation, or repair;
possibilities for adaptive or alternative use of the property;
appraised value; and the administrative and financial
responsibility of any person or organization willing to
underwrite all or a portion of such costs. In order for any
historic property to be designated in the ordinance, it must in
addition meet the criteria established for inclusion of the
property in the state register of historic places established
pursuant to chapter 1-19A. No ordinance designating an
historic property pursuant to this section may be adopted until
the procedural steps set forth in §§ 1-19B-21 to 1-19B-24,
inclusive, have been taken.
SDCL 1-19B-21 provides:
Before an ordinance designating an historic property is adopted
pursuant to § 1-19B-20, the local historic preservation
commission shall make an investigation and report on the
historical, architectural, archaeological or cultural significance
of the property in question.
SDCL 1-19B-22 provides:
Before an ordinance designating an historic property is adopted
pursuant to § 1-19B-20, the local governing body shall hold a
public hearing on the proposed ordinance, after giving sufficient
written notice to the owners and occupants of the property and
posting public notice in its normal manner.
SDCL 1-19B-23 provides:
For each designated historic property, an ordinance adopted
pursuant to §§ 1-19B-20 to 1-19B-24, inclusive, shall require
(continued . . .)
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[¶3.] SDCL 1-19B-62 authorizes cities to enact ordinances requiring review
by local HPCs before any undertaking that may destroy a historic property listed on
the national or state registers of historic places. The statute contains no
requirement that the property must also have been designated by city ordinance as
a local historic property pursuant to SDCL 1-19B-20 through 24. The decision to
approve or deny a permit must, however, be based on the U.S. Department of the
Interior Standards for Historic Preservation Projects codified in 36 C.F.R. 67 as of
January 1, 1994. The statute provides in relevant part:
Any county or municipality may enact an ordinance requiring a
county or municipal historic preservation commission to review
any undertaking, whether publicly or privately funded, which
will encroach upon, damage, or destroy any historic property
included in the national register of historic places or the state
register of historic places. The ordinance may require the
issuance of a permit before any undertaking which will encroach
upon, damage, or destroy historic property may proceed. The
decision to approve or deny a permit shall be based on the U.S.
Department of the Interior Standards for Historic Preservation
Projects codified in 36 C.F.R. 67 as of January 1, 1994.
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(. . . continued)
that the waiting period set forth in § 1-19B-27 be observed prior
to its demolition, material alteration, remodeling or removal.
The ordinance shall also provide for a suitable sign or marker on
or near the property indicating that the property has been so
designated.
SDCL 1-19B-24 provides:
Upon adoption of an ordinance pursuant to § 1-19B-20, the
owners and occupants of each designated historic property shall
be given written notification of such designation by the local
governing body. One copy of the ordinance shall be filed by the
local historic preservation commission in the office of the
register of deeds for the county in which the property is located.
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SDCL 1-19B-62 (emphasis added).
[¶4.] The City adopted an ordinance giving its HPC these powers.
Deadwood City Ordinance DCO 17.68.020(C)(11) requires the Deadwood HPC to
“review and to issue or deny a permit for any undertaking or project . . . which will
encroach upon, damage, or destroy any historic property included in the National
Register of Historic Places or the State Register of Historic Places[.]” (Emphasis
added.) Like SDCL 1-19B-62, the ordinance applies to any national or state
registered historic property. The ordinance contains no requirement that the
property must also be locally designated as a historic property pursuant to SDCL 1-
19B-20 through 24.
[¶5.] Gustafson informed the City of his intent to demolish the Sinclair
Station. The City objected to the undertaking absent review and permitting by the
HPC. Because the parties disagreed whether review and permitting was required,
the City commenced this action to enjoin demolition. Gustafson counterclaimed for
a declaration that, under the statute and ordinance, the HPC lacked jurisdiction
over property that was not locally designated as “historic” by a city ordinance
pursuant to SDCL 1-19B-20 through 24. After a bench trial, the circuit court held
that “[b]ecause the Sinclair [S]tation has not been designated by local ordinance as
‘a historic property,’ . . . City may not require a demolition permit be obtained from
the [HPC].”
Decision
[¶6.] The issue in this case involves statutory construction. Our standard of
review and rules of statutory construction are well settled:
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Questions of law such as statutory interpretation are reviewed
by the Court de novo. . . . The purpose of statutory construction
is to discover the true intention of the law which is to be
ascertained primarily from the language expressed in the
statute. The intent of a statute is determined from what the
legislature said, rather than what the courts think it should
have said, and the [C]ourt must confine itself to the language
used. Words and phrases in a statute must be given their plain
meaning and effect. When the language in a statute is clear,
certain and unambiguous, there is no reason for construction,
and the Court’s only function is to declare the meaning of the
statute as clearly expressed.
Martinmaas v. Engelmann, 2000 SD 85, ¶ 49, 612 NW2d 600, 611.
[¶7.] We must determine whether SDCL 1-19B-62, the statute authorizing
DCO 17.68.020(C)(11), limits the HPC’s power to review national and state historic
properties to only those that have also been locally designated a historic property. 2
Although Gustafson’s local designation requirement is not within the text of the
statute, the circuit court incorporated SDCL 1-19B-21 through 24’s local
designation requirements into SDCL 1-19B-62. The circuit court believed that the
Legislature intended SDCL 1-19B-62 to “supplement” the local designation
2. Gustafson argues that “[r]eading SDCL 1-19B-62 alone [without
incorporating other provisions of the chapter requiring a local designation] is
‘untenable’ and creates an absurd result.” He explains that reading the
statute alone “nullifies the rest of Ch. 1-19B as it gives HPC control over all
historic properties within the City of Deadwood, even properties located
within a locally designated historic district, which by statute, [are] under the
jurisdiction of [a different commission, i.e.,] the Historic District
Commission.” The City, however, points out that because this property is not
within a locally designated historic district, the issue of conflicting concurrent
jurisdiction is not before the Court. We further observe that Gustafson cites
no authority suggesting that concurrent jurisdiction over historic properties
is legally impermissible. If anything, the federal, state, and local
jurisdictional scheme already in place would suggest otherwise. In any event,
for the reasons explained in this opinion, we do not reach this argument.
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statutes. 3 The plain language of the statute does not support the circuit court’s
conclusion.
[¶8.] The language of SDCL 1-19B-62 is clear, certain, and unambiguous. It
provides that the HPC may review “any” historic property “included in the national
register of historic places or the state register of historic places.” There is nothing
in the text of the statute, or any other provision of SDCL ch 1-19B, requiring a local
designation before a HPC may exercise the permitting power granted by the
statute. Consequently, as we have said many times, we do not utilize statutory
construction aids to ascertain what the Legislature may have intended. In these
circumstances, “the Court’s only function is to declare the meaning of the statute as
clearly expressed.” Martinmaas, 2000 SD 85, ¶ 49, 612 NW2d at 611. 4
3. The circuit court also mentioned in its memorandum decision and in its
conclusions of law that the Legislature intended to incorporate the local
designation requirements to afford property owners the constitutional due
process rights to notice and opportunity to be heard. Gustafson repeats that
concern on appeal. Neither the circuit court nor Gustafson, however, cited
authority supporting a specific due process violation. Furthermore, the
parties have not informed us of the extent of their due process concerns in
light of the state and national registrations and the fact that the HPC’s
decision must be based on the U.S. Department of the Interior Standards for
Historic Preservation Projects as well as other applicable City ordinances. In
the absence of argument and supporting authority, we decline to address any
due process issues in this case.
4. Because we do not engage in statutory construction when the words of the
statute are clear and unambiguous, we reject Gustafson’s argument that
incorporation of the local designation statutes is required under the statutory
construction aid of in pari materia. Furthermore, even if statutory
construction were required, the rule of in pari materia is inapplicable. The
rule applies when statutes “relate to the same person or thing, to the same
class of person[s] or things, or have the same purpose or object.” Lewis and
Clark Rural Water Sys. Inc. v. Seeba, 2006 SD 7, ¶ 15, 709 NW2d 824, 831.
In this case, SDCL 1-19B-62 and the local designation statutes have different
(continued . . .)
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[¶9.] In this case, the circuit court’s incorporation of statutes not mentioned
in the text of SDCL 1-19B-62 would add an additional requirement that is not found
in the statute. Had the Legislature intended to include a local designation
requirement, it would have included that requirement in SDCL 1-19B-62. After all,
SDCL 1-19B-20 through 24 were in existence at the time the Legislature enacted
SDCL 1-19B-62. “A court is not at liberty to read into the statute provisions which
the [L]egislature did not incorporate[.]” In re Adams, 329 NW2d 882, 884 (SD 1983)
(quoting Red Bird v. Meierhenry, 314 NW2d 95, 96-97 (SD 1982)). “[F]or us to [add
a statutory requirement] by judicial decree, as urged by [Gustafson], would require
that we assume a role the [C]onstitution forbids. ‘In interpreting legislation, this
[C]ourt cannot add language that simply is not there.’” See In re Estate of
Gossman, 1996 SD, 124, ¶ 11, 555 NW2d 102, 106 (quoting Helmbolt v. LeMars
Mut. Ins. Co., 404 NW2d 55, 59 (SD 1987) (additional citations omitted)). We
therefore conclude that if SDCL 1-19B-62 (the state and national designation
requirement) should “supplement” the local designation statutes, that is a function
for the Legislature, not the courts.
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(. . . continued)
purposes and relate to different things. SDCL 1-19B-62 deals with the
review and permitting of undertakings regarding national and state historic
properties in accordance with federal regulations. SDCL 1-19B-20 through
24 deal with a local waiting period to allow negotiation to find alternatives to
the demolition, material alteration, remodeling or removal of properties that
are of local historical significance.
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[¶10.] Reversed and remanded for further proceedings consistent with this
opinion.
[¶11.] GILBERTSON, Chief Justice, and KONENKAMP and SEVERSON,
Justices, concur.
[¶12.] MEIERHENRY, Justice, concurs with a writing.
MEIERHENRY, Justice (concurring).
[¶13.] I concur with the majority opinion. I write specifically to emphasize
that the result of this opinion is that Gustafson is required under the city ordinance
to come before the HPC for a demolition permit. The Deadwood City Ordinance
requires the HPC to review a permit to demolish as follows:
In addition to any review by the city’s planning and zoning
commission and/or building official, to review and to issue or
deny a permit for any undertaking or project, whether publicly
or privately funded, which will encroach upon, damage or
destroy any historic property included in the National Register
of Historic Places or the State Register of Historic Places, which
decision to approve or deny shall be based upon the United
States Department of the Interior Standards for Historic
Preservation Projects codified in 36 CFR 67 as of January 1,
1994. Properties owned by the state of South Dakota are
exempt from this review. This section shall not apply to any
project or undertaking which the historic preservation
commission or its staff determines will not encroach upon,
damage or destroy any historic property. Such determination
shall be based upon the guidelines adopted by the Deadwood
historic preservation and district commission(s)[.] 5
DCO 17.68.020(C)(11) (emphasis added). This language provides Gustafson with
the same procedural protections that an owner of locally designated historic
5. These guidelines are found at DCO 17.68.050.
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property would receive. Therefore, Gustafson still has the right to a hearing on the
permit request, and the HPC must consider his permit request under the same
criteria as other local, state, or national historically designated property.
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