# 26897

- a - JKK 201 4 S.D. 44 IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA * * * * SHAWN TIBBS, VIRGIL STEMBAUGH, GENE GULLICKSON and JANET GULLICKSON , Petitioners and Appellants ,

v. MOODY COUNTY BOARD OF COMMISSIONERS, sitting a s THE BOARD OF ADJUSTMENT, and MUSTANG PASS, LLC, Respondents and Appellees

. * * * * APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT MOODY COUNTY, SOUTH DAKOTA * * * * THE HONORABLE GREGORY J. STOLTENBURG Judge * * * * MITCHELL A. PETERSON of Davenport, Evans, Hurwitz & Smith, LLP Sioux Falls , South Dakota Attorneys for petitioners and appellants

. JACK H. HIEB ZAC H ARY W. PETERSON of Richardson, Wyly, Wise, Sauck & Hieb, LLP Aberdeen , South Dakota Attorney s for appellee Moody County Board of Commissioners Sitting as Board of Adjustment

. JAMES S. SIMKO of Cadwell, Sanford, Deibert & Garry , LLP Sioux Falls, South Dakota Attorneys for appellee Mustang Pass, LLC. * * * * ARGUED ON MAY 28 , 2014 OPINION FILED 

### 07 / 09 / 14# 26897

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- KONENKAMP, Justice [¶ 1. ] The Moody County Board of Adjustment granted a conditional use permit to allow a concentrated animal feeding operation in Moody County. Shawn Tibbs, Virgil Stembaugh, and Gene and Janet Gullickson (the Citizens) petit ioned the circuit court for a writ of certiorari challenging the board of adjustment’s decision to grant the conditional use permit. The Citizens also argued that the statutory scheme governing appeals to circuit court s from county

- level decision s on cond itional use permit s violated their equal protection rights

. The c ircuit court denied the writ and the Citizens appeal. B ackground [¶ 2. ] On January 16, 2013, Mustang Pass, LLC applied for a c onditional use
p ermit (CUP) to construct a concentra ted animal feeding operation in Moody County. The zoning officer issued a written recommendat ion to the Moody County Board of Adjustment that the CUP be approved with the addition of six conditions. On January 23, 2013, the Moody County Board of Adjustme nt published a notice in the local newspaper announcing that a public hearing on Mustang’s application would be held on February 5, 2013. A t the hearing, the b oard received evidence , including testimony from Mustang’ s principals , the engineers who prepare d the CUP, and members of the public

. At a later meeting in March , the b oard approved Mustang’s CUP. The b oard issued written findings and conditional use permit requirements , i dentified the b oard’s jurisdiction to consider Mustang’s application , outline d the procedural history on Mustang’s CUP, certified Mustang ’ s compli ance with the rules governing conditional use requests, and imposed certain “special conditions and safeguards.”# 26897

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- [¶ 3. ] The Citizens petitioned the circuit court for a writ of certiorari to invalidate Mustang’s CUP . They challeng ed the b oard’s jurisdiction to consi der Mustang’s application , asserting that Moody County failed , in 2003, to prope rly enact its zoning ordinances . These ordinances created the Moody County Board of Adjustment and gave it power to hear and consider CUPs. In the Citizen s ’ view, because the zoning ordinances were not properly enacted, all action taken by the Moody County Board of Adjustment since 2003 was void ab init i o , including the decision by the b oard of adjustment to approve Mustang’s CUP . They also asserted that Moody County did not have legislative authority to delegate to the board of

a djustment original jurisdiction to consider a CUP application , and therefore, the board’s approval of Mustang ’s CUP wa s void. Finally, the Citizens argued that SDCL chapter 11

- 2 and the statutory scheme governing appeals from CUP

- related decisions at the circuit court level violate s the Equal Protection Clause of the South Dakota Constitution because it gives so me aggrieved parties a more favorable de novo review before the circuit court and other aggrieved parties less favorable review by writ of certiorari

. See S.D. Const. art. VI, § 18. [¶ 4. ] A fter a hearing in September 2013, the circuit court issued a memorandum decision that was later incorporated into its findings of fact and conclusions o f law

. The court found “no procedural defects” in Moody County’s 2003 adoption of its zoning ordinances and accordingly ruled that the board of adjustment was validly created . T he court further concluded that Moody County did not improperly delegate its authority to the board of a djustment , even though SDCL 11

- 2

- 17.3 (the statute giving counties the power to designate the approving authority for CUPs) was not in effect at the time Moody County ad opted its# 26897

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- ordinance

. In examining SDCL chapter 11

- 2 , the circuit court concluded that a harmonious and workable reading of the statutes necessitated the conclusion that the Moody County Board of Adjustment had both appel late and original jurisdiction

. [¶ 5. ] On the Citizens ’ equal protection claim, the cour t detailed the legislative history leading to the i nconsistent appellate process es from c ounty CUP decision s . See Armstrong v. Turner Cnty. Bd. of Ad justment , 2009 S.D. 81, ¶ ¶ 1 0

- 11 , 772 N.W.2d 643, 64 7

- 48

. T he court noted that i n 2003, the Legislature amended SDCL 11

- 2

- 53 and gave boards of adjustment the power to consider certain CUP issues. Then, in 2004 , the Legislature removed the statutory prov ision giving boards of adjustment the authority to approve CUPs

. But the Legisla ture enacted SDCL 11

- 2

- 17.3 giving counties the power to designate the approving authority for CUPs

. T he Legislature d id not make “any reference to an appeal procedure if the county

- designated entity was not a board of adjustment.” See Armstrong , 2009 S.D. 81, ¶ 10, 772 N.W.2d at 64 8

. Therefore, “the same action of approving or denying a conditional use permit may have a different appeal procedure depending on whi ch entity a pproves the permit.” Id. ¶ 11. [¶ 6. ] The circuit court then applied the traditional two

- part test for claim s that a statute violates equal protection: (1) does the statute create an arbitrary classification among citizens, and (2) “ if the class ification does not involve a fundamental right or suspect group , ” is there a rational relationship “ between a legitimate legislative purpose and the classification created ” ? See In re Davis , 2004 S.D. 70, ¶ 5 , 681 N.W.2d 452, 454

. On the first prong , the court concluded that,

“ [w]hen applied, the statute [SDCL 11

- 2

- 17.3] gives every county in South Dakota# 26897

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- the same opportunity to choose which entity they would like to place the conditional use authority in.” Thus, the court found that the Legislat ure did not create a classification. The court ruled alternatively that even if the statute create d a classification among citizens , the Citizens “would still fail to prove arbitrariness.” As the court explained , “I t makes sense to allow the individual counties the flexibility to determine the mechanism by which zoning issues are considered and appealed.” The court highlighted the “great disparity between counties in this state,” and opined that “[i]t may be appropriate to allow Moody County, or any county, diff erent options when dealing with zoning issues.” The Citizens’ recourse, according to the court, “rests primarily in the ballot box.” [¶ 7. ] Although the court found no arbitrary classification, it addressed the second prong

— whether there is a rational relationship between a legitimate legislative purpose and the classification. The court determined that a legitimate legislative purpose existed in the allowance of flexibility to each county on zoning issue s and that differing standards of rev iew are rationally related to that purpose

. It concluded t hat the Citizens failed to meet their burden that there is no rational relationship between the legitimate legislative purpose and the classification created and denied the Citizens’ petition for a writ of certiorari

. [¶ 8. ] On appeal, t he Citizens assert that the statutory scheme applicable to the appeal procedure from a board of adjustment decision is unconstitutional in violation of the Equal Protection Clause and that the Moody Count y Board acted in excess of its jurisdiction, failed to pursue its authority in a regular manner, and failed to do an act required by law

.# 26897

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- A nalysis and Decision 1. Equal Protection [¶ 9. ] The Citizens argue that the writ of certiorari standard of review applied to a board of adjustment ’ s CUP decision violates their right to equal protection of the law

. See SDCL 11

- 2

- 61,

- 62. They claim an inequality exists because citizens in counties without a board of ad justment receive a more favorable de novo standard of review of CUP decisions at the circuit court level under SDCL
7

- 8

- 30 , while citizens in counties with a board of adjustment receive a less favorable standard of review b y writ of certiorari under SDCL ch apter 11

- 2

. The Citizens further co ntend t hat these differing standards of review at the circuit court level are arbitrary and in no way relate to county flexibility in handling local zoning issues. Although the Citizens insist that this implicates a fundamental right b ecause the ir propert y rights are at stake , they claim alternatively that e ven if a fund amental right is not involved, there is no “legitimate legislative purpose for providing an absolute right to de novo review of CUP decisions to some citizens, while simultaneously restrict ing the review for other similarly situated citizens located in other counties.” [¶ 10. ] A statute’ s constitutionality and proper interpretation are questions we review de novo. In re Z.B. , 2008 S.D. 108, ¶ 5, 757 N.W.2d 595, 59 8 (citing Buchho lz v. Storsve , 2007 S

. D

. 101, ¶ 7, 740 N.W.2d 107, 110)

. “Any legislative act is accorded a presumption in favor of constitutionality and that presumption is not overcome until the unconstitutionality of the act is clearly and unmistakably shown and there is no reasonable doubt that it violates fundamental constitutional principles. ” Accounts Mgmt., Inc. v. Williams , 484 N.W.2d 297, 299 (S.D. 1992)# 26897

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- (citations omitted). The constitutional question here is whether the Equal Protection Clause prohibits the differing standards of review applied to CUP decisions at the circuit court level. See SDCL 7

- 8

- 30 (appeal from a county decision); SDCL 11

- 2

- 61 , - 62 (appeal from a board of adjustment decision)

. The Equal Protection Clause of the South Dakota Constituti on guarantees that “[n]o law shall be passed granting to any citizen, class of citizens or corporation, privileges or immunities which upon the same terms shall not equally belong to all citizens or corporations.” S.D. Const. art. VI, § 18. [¶ 11. ] In deciding whether a statutory scheme comports with the Equal Protection Clause, we apply a two

- part test. “ First, we determine whether the statute creates arbitrary classifications among citizens. ” Davis , 2004 S.D. 70 , ¶ 5, 6 81 N.W.2d at 454 (citi ng City of Aberdeen v. Meidinger , 89 S.D. 412, 233 N.W.2d 331, 333 (1975) )

. “ Second, if the classification does not involve a fundamental right or suspect group, we determine whether a rational relationship exists between a legitimate legislative purpose and the classifications created. ” Id. (citing Accounts M gmt., Inc. , 484 N.W.2d at 300 )

. [¶ 12. ] On the first prong, we look to see whether “ the statute applies equally to all people

. ” Accounts M gmt., Inc. , 484 N.W.2d at 300

. While SDCL 11

- 2

- 17. 3 on its face applies equally to all counties, in that each county is afforded the opportunity to designate the approving authority for a C UP, the statutes governing circuit court appe al s of CUP decisions in effect sets up two clas ses of citizens

. One cla ss comprises citizens in a county that designated a board of adjustment to consider CUPs, thereby invoking the writ of certiorari review process in circuit
court. See SDCL 11

- 2

- 61 , - 62

. The second class comprises citizens in a county that# 26897

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- chose not to de signate a board of adjustment, thereby invoking the de novo standard of review in circuit court. See SDCL 7

- 8

- 30 ; see Armstrong , 2009 S.D. 81, ¶ ¶ 10

- 11, 772 N.W.2d at 647

- 48

. [¶ 13. ] The next inquiry is whether the classification is arbitrary

. Equal protection of the law does not deny a state the right to make classifications in law, so long as those classi fications are rooted in reason. State v. Krahwinke l , 2002 S.D. 160, ¶ 21, 656 N.W.2d 451, 460

- 61. Indeed, classification is the essence of legislation and the L egislature is not prohibited “from making classifications based upon difference in ‘terms’ surrounding individuals.” Accounts M g mt

. , Inc. , 484 N.W.2d at 300 ; see also Clements v. Fashing , 457 U.S. 957, 964, 102 S. Ct. 2836, 2845, 73 L. Ed. 2d 508 (1982)

. “ A statute will not be declared invalid ‘unless it is “patently arbitrary” and bears no rational relationship to a legitimate governmental interest.’” Accounts Mgmt., Inc. , 484 N.W.2d at 300 (citations omitted) ; see also Davis , 2004 S.D. 70, ¶ 4, 681 N.W.2d at 454. As the United Sta te Supreme Court explained, “W hen social or economic legislation is at issue, the Equal Protection Clause allows the States wide latitude, and the Constitution presumes that even improvident decisions wil l eventually be rectified by the democratic processes. ” City of Cleburne v. Cleburne Living Ctr

. , 473 U.S. 432 , 440, 105 S. Ct. 3249, 3254, 87 L. Ed. 2d 313 (1985) (internal citations omitted). [¶ 14. ] Here, although the classes of citizens app ear to be arbitrarily classified

— differing standards of re view of CUP decisions based on whether the county has a board of adjustment or not

— our review of the constitutionality of the statutory sche me is not isolated to a simple comparison of standards of review at the circuit court level. See Sedlacek v. S.D. Teener Baseball Program , 437 N.W.2d 866, 869# 26897

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- (S.D. 1989). On the contrary, we must examine the CUP processes as a whole to determine if the two classes of citizens are “postured in the same stan ce.” See Accounts M gmt., Inc. , 484 N.W.2d at 300

. This is because “[e]qual protection of law requires that the rights of every person be governed by the same rule of law, under similar circumstances .” Krahwinke l , 2002 S.D. 160, ¶ 21, 656 N.W.2d at 460 ( citation omitted)

. [¶ 15. ] In probing the circumstances surrounding a CUP decision by a board of adjustment compared to a CUP decision by a county commission , we note one procedural difference. I n a county that designated a board of adjustment as the approving authority, SDCL 11

- 2

- 59 mandates that a “concurring vote of two

- thirds of the members of the board of adjustment is necessary . . . to decide in favor of the applicant [.]” A decision before the county commission, on the other hand, requir es only a simple

- majority vote. See SDCL 7

- 8

- 18. Based on this statutory difference alone, the Legislature could have properly concluded that a decision by a board of adjustment should be a fforded more deference at the circuit court level than a decision by a county commission , and therefore, t he se differing standards of review are not arbitrary. [¶ 16. ] Nonetheless, the Citizens contend that Aberdeen , 89 S.D. 412, 233 N.W.2d 331 and Metro politan Assoc iate s v. City of Milwaukee , 796 N.W.2d 717 (Wis. 2011) support proof of arbitrary classifications. In Meidinger , the challenged statutory scheme created a classification affectin g similarly situated citizens: a city with a municipal court could impose a greater penalty for the same municipal ordin ance violation as compared to a city without a municipal court. The classification meant that a person convicted of the same infraction could be# 26897

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- subjected to a great er penalty depending on whether the city had a municipal court. 89 S.D. at 415, 233 N.W.2 d at 333. Here, however, the classification created by the statutory scheme does not involve the same circumstances. Rather, the classification can be related to a “difference in ‘terms’ surrounding individuals,” see Accounts M gmt., Inc. , 484 N.W.2d at 3 00 , based upon the fact an applicant seeking a CUP must obtain a super

- majority vote of a board of adjustment versus a simple

majority vote of a county commission. [¶ 17. ] Likewise, t he statutory scheme in Metro politan Assoc iates created a classi fication affecti ng similarly situated citizens: appellant taxpayers living in a municipality opting out of de novo review and appellant taxpayers living in a municipality not opting ou t. 796 N.W.2d at 724. The classification did not relate to any distinc tions between the characteristics of the taxpayers. Id. at 733 . According to the Wisconsin C ourt, “[t] axpayers in opt out municipalities are no different from taxpayers in all other municipalities, except for the different rights available to taxpayers i n opt out municipalities at the Board of Review and circuit court review stages. ” Id. at 734. Here, however, the procedure in obtaining a CUP before a board of adjustment is different from the procedure before a county commission , making citizens appeali ng a board of adjustment ’ s CUP decision in circuit court different from citizens similarly appealing a CUP decision from a county commission

. [¶ 18. ] “In the area of economics and social welfare, a State does not violate the Equal Protection Cla use merely because the classifications made by its laws are imperfect.” Dandridge v. Williams , 397 U.S. 471, 485, 90 S. Ct. 1153, 1161 , 25 L. Ed. 2d 491 (1970) ; see also Heller v. Doe , 509 U.S. 312, 321 , 113 S. Ct. 26 37, 2643 ,# 26897

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- 125 L. Ed. 2d 257 (1993). T he Le gislature need not “‘actually articulate at any time the purpose or rational e supporting its classification.’” Z.B. , 2008 S.D. 108, ¶ 9 , 757 N.W.2d at 600 (quoting Heller , 509 U.S. at 320, 113 S. Ct. at 2642). Rather, “[i] n an equal protection chall enge, ‘ [t]he burden is on the one attacking the legi slative arrangement to negate every conceivable basis which might support it.’ ” Id. ¶ 5 (quoting Lehnhausen v. Lake Shore Auto Parts Co ., 410 U.S. 356, 364, 93 S. Ct. 1001, 1006, 35 L. Ed. 2d 351 (1973) (citations omitted) )

. Here, the Citizens have failed to negate the conceivable set of facts providing the rational basis for the classification

— t he different procedural means by which a CUP decision reaches the circuit court. Although this classificati on might not be “made with mathematical nicety” and “in practice [may result ] in some inequality,” s ee Lindsley v. Natural Carbonic Gas Co. , 220 U.S. 61, 78, 31 S. Ct. 337, 340, 55 L. Ed. 369 (1911 ), there is a plausible reason for the differing standards of review and thus “our inquiry is at an end.” See United States R.R. Ret

. Bd. v. Fritz , 449 U.S. 166, 179, 101 S. Ct. 453, 461, 66 L. Ed. 2d 368 (1980); see also In re Certain Territorial Elec

. Boundaries (Mitchell Area) F

– 3105 , 281 N.W.2d 65, 71 (S.D. 1 979). [¶ 19. ] W e nonetheless address the second prong: whether a rational relationship exists between the legitimate legislative purpose and the classification s . The Citizens insist that a fundamental right is at stake because the b oard’s decisio n implicated a property right and a right to access the courts . On the contrary, the issue before us is the statutory scheme governing CUP decisions, and therefore, t he Citizens ’ constitutional question does not involve a fundamental right. See Lindsey v . Normet , 405 U.S. 56, 77, 92 S. Ct. 862, 876, 31 L. Ed. 2d 36 (1972) (no constitutional right to appellate review). Because a fundamental right is# 26897

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- not involved, we need only determine “whether a rational relationship exists between a legitimate legislati ve purpose and the classifications created. ” See Davis , 2004 S.D. 70, ¶ 5 , 681 N.W.2d at 454

. It is a legitimate legislative purpose to create different procedural means by which certain county authorities manage proceedings before them. This is not a c ase like Metro politan Associates where Wisconsin

e nacted a statute giving counties the authority to decide what standard of review would be applied to landowner challeng es of CUP decisions

. 796 N. W.2d at 724. Rather, our case involves separate and distin ct county procedures before different county government bodies , where dissimilar circumstances result in different standards of review at the circuit court level

. We conclude that there is a rational relationship between a legitimate legislative purpose a nd the classifications.
2. Validity of Zoning Ordinance Creating the Board of Adjustment [¶ 20. ] The Citizens contend that Moody County did not properly establish its board of a djustment because the county failed to validly enact its zoning ordin ances in 2003, when it did not hold two separate hearings as required by SDCL 11

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- 18 through SDCL 11

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- 20. Because of this failure, the Citizens aver that all action taken since 2003 by the Moody County Board of Adjustment is void , including its approval of Mustang’s CUP. [¶ 21. ] Moody County responds that it complied with SDCL chapter 11

- 2 in 2003 when it adopted its zoning ordinances. It concedes that it did not hold two separate and distinct hearings, but asserts that nothi ng in chapter 11

- 2 required separate and distinct hearings. Because the planning commission and board of county commission ers each gave ten

- days’ notice of the public hearing s , held the# 26897

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- public hearing s , and adopted the 2003 zoning ordinances , Moody County maintains that th e 2003 ordinances were validly enacted

. [¶ 22. ] We will sustain Mood y County’s actions “unless it did some act forbidden by law or neglected to do some act required by law.” See Armstrong , 2009 S.D. 81, ¶ 12, 772 N.W.2d at 648 (citations omitted ). SDCL 11

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- 18 provides : The planning commission shall hold at least one public hearing on the respective comprehensive plan, zoning ordinance, or subdivision ordinance. Notice of the time and place of the hearings shall be given once at least ten days in advance by publication in a legal newspaper of the county. Following the public hearing, the planning commission shall submit its recommendation to the board. Then , SDCL 11

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- 19 provides : After receiving the recommendation of the planning commission the board shall hold at least one public hearing on the respective comprehensive plan, zoning ordinance, or subdivision ordinance. Notice of the time and place of the hearings shall be given once at least ten days in advance by publication in a legal news paper of the county. [¶ 23. ] Here, it is undisputed that the planning commission held a public hearing on the proposed ordinances , before which it gave ten

- days’ notice and after which it submitted its recommendation to the board of commissioners . It is further undisputed that after receiving the recommendation from the planning commission , the board of commissioners held a hearing on the respective zoning ordinances

. Although the board of commissioners gave notice of its hearing before receivin g the planning commission’s recommendation, nothing in SDCL 11

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- 19 mandates that the board wait to give notice until after it receives the planning commission’s recommendation

. B ased on our review of the record, therefore, the board of# 26897

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- adjustment’s appro val of Mustang’s CUP is not void because of the procedure Moody County followed in enact ing its 2003 ordinances. [¶ 24. ] Nonetheless, t he Citizens argue that even if the zoning ordinances were validly enacted in 2003 , the zoning ordinances giving the board of adjustment the power to hear and consider CUPs were adopted prematurely , because Moody County d id not have specific legislative authority in February 2003 to give a board of adjustment power to hear and consider CUP applications. They point o ut that it was not until July 1, 2003 , after the L egislature amended SDCL 11

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- 53 and gave boards of adjustment authority to hear CUPs , that Moody County could enact an ordinance empowering the board of adjustment

. See 2003 S.D. Sess. Laws c h. 78 , §
2 (am ending SDCL 11

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- 53 ). Since July 1, 2003 was after February 23, 2003, the Citizens maintain that Moody County’s zoning ordinance was not validly create d , and therefore, any action taken by the board of adjustment , including its approval of Mustang’s CUP, is void ab init i o . [¶ 25. ] A county is a creature of statute and has “only such powers as are expressly conferred upon it by statute and such as may be reasonably implied from those expressly granted.” State v. Quinn , 2001 S

. D

. 25, ¶ 10, 623 N.W.2d 36, 38 (quoting State v. Hansen , 75 S.D. 476, 68 N.W.2d 480, 481 (1955)) . A rticle IX, section 2 of the South Dakota Constitution provides that counties have the authority to “exercis e any legislative power or perform any function not denied by its charter, the Constitution or general laws of the state.” In particular, SDCL 7

- 18A

- 2 gives a county the authority to adopt ordinances “as may be proper and necessary to carry into effect the powers granted to it by law . . . .” Yet a county may not enact an ordinance that conflict s with state law. SDCL 6

- 12

- 5; Rantapa a# 26897

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- v. Black Hills Chairlift Co. , 2001 S.D. 111, ¶ 23, 633 N.W.2d 196, 203. A conflict exists if (1) the county ordinance prohibits the same act forbidden by state law (the ordinance is void to the extent it is duplicative), (2) a conflict exists between state law and an ordinance, or (3) state law occupies the fiel d to the exclusion of all local regulation. Rantap aa , 2001 S.D. 111, ¶ 23, 633 N.W.2d at 203

. [¶ 26. ] From our review of Moody County’s 2003 ordinances and the statutory scheme governing boards of adjustment, we conclude that Moody County’s ordinance was not void ab init i o . The Citizens have not established that the ordinance prohibit ed an act forbidden by state law, creat e d a conflict between state law and the ordinance, or encroach ed upon a field occupied by state law to the exclusion of all local regulation. See id. In enacting the ordinance, Moody County deemed it necessary to create a board of adjustment to hear and consider CUPs. See SDCL 7

- 18A

- 2

. While , on February 23, 2002, SDCL 11

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- 53 did not specifically give boards of adjustment the authority to consider CUPs, there was nothing in SDCL chapter 11

- 2 (2003) to suggest that the Legislature intended a board of ad justment to have only appellate jurisdiction. That a board of adjustment’s powers then extend ed beyond appellate matters is evidence d in SDCL 11

- 2

- 59 (2003) , which provided , in part, that a board of adjustment may “decide in favor of the applicant

on any matter upon which it is required to pass under any such ordinance [.] ” (Emphasis added.) Finally, there is no evidence that in 2003 the Legislature intended to occupy the field of CUPs to the exclusion of all local regulation. Contra In re Yankton Cnty. Comm’n , 2003 S.D. 109, ¶ 21, 670 N.W.2d 34 , 41 (Legislature intended to fully occupy the field of appeals of county zoning decisions). In fact, mere months after Moody County’s ordinance went into effect, the Legislature# 26897

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- amended SDCL 11

- 2

- 53 to give board s of adjustment specific statutory authority to consider certain c onditional uses . And today, through SDCL 11

- 2

- 17.3, the Legislature has placed the power in counties to choose the approving authority for CUPs.
3. Original Jurisdiction [¶ 27. ] The Citizens next contend that although SDCL 11

- 2

- 17.3 gives Moody County the power to designate the approving authority for a CUP application , “[t]he phrase ‘board of adjustment’ appears nowhere in SDCL 11

- 2

- 17.3 ,” which means the Moody County Board of Adjustment could only act as an appellate body of county government under SDCL chapter 11

- 2. In its entirety, SDCL 11

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- 17.3 provides: A county zoning ordinance adopted pursuant to this chapter that authorizes a conditional use of real property shall spec ify the approving authority, each category of conditional use requiring such approval, the zoning districts in which a conditional use is available, and the criteria for evaluating each conditional use. The approving authority shall consider the stated cr iteria, the objectives of the comprehensive plan, and the purpose of the zoning ordinance and its relevant zoning districts when making a decision to approve or disapprove a conditional use request. T his statute directed Moody County to specify the approv ing authority for allowing conditional uses of real property. Here, Moody County adopted a n ord i nance that created a board of adjustment and empowered the board of adjustment to hear and consider CUPs as the approving authority

. The Citizens ’ claim is wi thout merit and neither Moody County nor th e board acted in excess of its authority when the board exercised original jurisdiction over Mustang’s CUP application. 4. Regularity of the Board’s Procedures [¶ 28. ] “ Our consideration of a matter pr esented on certiorari is limited to whether the board of adjustment had jurisdiction over the matter and whether it# 26897

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- pursued in a regular manner the authority conferred upon it. A board’ s actions will be sustained unless it did some act forbidden by law or neglected to do some act required by law.” Armstrong , 2009 S.D. 81, ¶ 12, 772 N.W.2d at 648 (citations omitted). The Citizens seek revers al of the board of adjustment’s decision to grant Mustang’s CUP because the y allege that the board failed to adopt r ules as required by SDCL 11

- 2

- 54 , and one board member was not a resident of Moody County when the board voted to approve Mustang’s CUP

. On these issues , the circuit court, in its findings of fact, wrote : “At the oral hearing in front of this C ourt, couns el for Petitioners conceded that, assuming arguendo , the zoning ordinance is valid, there were no procedural or substantive due process violations as they pertain to the BOA proceedings.” The Citizens did not object to the circuit court’s findings of fact and conclusions of law nor propose findings and conclusions of their own. Although we would, therefore, limit our review to whether the court’s findings of fact sup port its conclusions of law, there are no specific findings to review. See Premier Bank, N.A. v. Mahoney , 520 N.W.2d 894, 895 (S.D. 1994) (quoting Huth v. Hoffman , 464 N.W.2d 637, 638 (S.D. 1991)). W ithout such findings , or an objection by the Citizens , a meaningful review by this Court is not possible

. [¶ 29. ] Affirm ed

. [¶ 30. ] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and WILBUR, Justices, concur.