#29928-r-SPM

2023 S.D. 50

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

LES GONSOR and JULIE GONSOR, Plaintiffs and Appellants,

v.

DAY COUNTY PLANNING

COMMISSION and DAY COUNTY

BOARD OF ADJUSTMENT, Political

Subdivisions of the State of South Dakota, Defendants and Appellees.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE FIFTH JUDICIAL CIRCUIT

DAY COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE JON S. FLEMMER

Judge

* * * *

GORDON P. NIELSEN

TREVOR J. ARCHER of

Delaney, Nielsen & Sannes, P.C.

Sisseton, South Dakota Attorneys for plaintiffs

and appellants.

JOHN D. KNIGHT

Day County State’s Attorney

Webster, South Dakota Attorney for defendants and

appellees.

* * * *

CONSIDERED ON BRIEFS

OCTOBER 3, 2022

OPINION FILED 09/20/23
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MYREN, Justice

[¶1.] The Gonsors appeal the circuit court’s determination that the Day 

County Board of Adjustment could reconsider and modify a previously granted 

variance. We reverse.

Factual and Procedural History

[¶2.] Les and Julie Gonsor own real property in Day County, South Dakota. 

Day County Planning and Zoning Commissioner Dari Schlotte informed the 

Gonsors that their property violated the Day County Planning and Zoning 

Ordinance because they altered the grading and added rocks to the property. After 

learning of this infraction, the Gonsors submitted an Application for Variance to 

Zoning Regulations to the Day County Planning and Zoning Board (hereinafter 

Board of Adjustment),1 seeking a variance from the ordinance that would change 

the setback requirement and allow the existing grading and rocks to remain.

[¶3.] On November 17, 2015, the Board of Adjustment voted unanimously to 

approve the Gonsors’ variance application. In a later proceeding related to this 

variance, the circuit court determined that “the decision had been filed at least by 

December 15, 2015.” Neither party has challenged that determination in this 

appeal. Consequently, we accept that finding and view that decision approving the 

variance as “filed” by December 15, 2015.

1. The minutes of the meetings identify the board as the “Planning and Zoning 

Board.” The Day County Zoning Ordinances specify the “County Planning 

Commission” is the “board of adjustment” for Day County. Day County 

Zoning Ordinance Section 1901. Despite the misnomer, the “Planning and 

Zoning Board” was clearly acting as the “Board of Adjustment” as authorized 

by SDCL 11-2-49.
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[¶4.] Day County residents Jack Schmidt, Terry Thompson, and Judy 

Thompson were at the November 17 meeting but did not object to the proposed 

variance. That same day, they complained to Day County State’s Attorney Danny 

Smeins that they had not been given an opportunity to object to the variance. 

Smeins suggested they request that the Board of Adjustment reconsider the 

variance. Schmidt and the Thompsons then verbally made this request to Schlotte. 

At the Board of Adjustment’s next regular meeting, on December 15, 2015, Schmidt 

expressed his disagreement with the Board of Adjustment’s decision to grant the 

Gonsors’ variance.

[¶5.] On January 14, 2016, Schmidt and Tim Harr sent Schlotte a letter on 

behalf of the Beals Pickerel Lake Subdivision Association asking the Board of 

Adjustment to “reconsider” the Gonsors’ variance. The following day, Schlotte 

informed the Gonsors of this request. The Board of Adjustment discussed the letter 

during a regular meeting on January 19, 2016. During its February 16, 2016 

meeting, the Board of Adjustment voted unanimously to reconsider the Gonsors’ 

variance at their next meeting. At its March 29, 2016 meeting, the Board of 

Adjustment reconsidered the Gonsors’ variance and voted to modify the previously 

approved variance. On March 29, 2016, Schlotte sent the Gonsors a letter 

informing them of the Board of Adjustment’s decision to “change the variance, to 

include the removal of the rock/boulders and to reslope the property adjacent to the 

road for better visibility and safety reasons as well as easier snow removal.” 

Eventually, Schlotte informed the Gonsors that a stay was in place to prevent any 

building on their property until they complied with the modified variance.
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[¶6.] Four years later, in June 2020, the Gonsors applied for a permit to 

build a house on their property. On June 16, 2020, the Board of Adjustment voted 

to deny the permit application because the Gonsors had not complied with the 

modified variance.

[¶7.] In August 2020, the Gonsors sued the Day County Planning 

Commission and the Day County Board of Adjustment, seeking a declaration under 

SDCL 21-24-1 that the Board of Adjustment’s November 2015 decision granting 

them a variance was a final determination and requesting “the right to utilize and 

develop their property in a manner that would be consistent with the variance . . . .” 

They further sought a corresponding declaration that the Board of Adjustment’s 

later decision in March 2016 was void because the Board of Adjustment had no 

authority “to hear an appeal and then to amend the previously approved variance

. . . .” In its answer to the complaint, the Board of Adjustment denied that it had 

granted the Gonsors’ requested variance. Instead, it asserted that it notified them 

“that the variance was being reconsidered . . . on or about January 15, 2016.”

[¶8.] Following a court trial, the circuit court, relying primarily on this 

Court’s decision in Jundt v. Fuller, 2007 S.D. 62, 736 N.W.2d 508, issued a 

memorandum opinion concluding that “[b]ased on the above case law and the lack of 

any statutory prohibition preventing a board of adjustment from reconsidering its 

own decision, the Day County Planning Commission, acting as the Day County 

Board of Adjustment, had authority to reconsider the decision of the Board made on 

November 17, 2015, granting Gonsors’ Application For Variance.” The circuit court 

determined that the Board of Adjustment’s March 20, 2016 decision amending the 
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Gonsors’ variance was proper and constituted the final decision of the Board of 

Adjustment. It denied the Gonsors’ request for relief and dismissed their complaint. 

The Gonsors appeal.

Decision

[¶9.] The Legislature provided a means to contest a decision of a board of 

adjustment:

Any person or persons, jointly or severally, or any officer, 

department, board, or bureau of the county, aggrieved by any 

decision of the board of adjustment may present to a court of 

record a petition duly verified, setting forth that the decision is 

illegal, in whole or in part, specifying the grounds of the 

illegality. The petition shall be a petition for writ of certiorari

presented to the court within thirty days after the filing of the

decision in the office of the board of adjustment. The board of 

adjustment shall respond to the petition within thirty days of 

receiving the notice of the filing and shall simultaneously 

submit the complete record of proceedings of the board appealed 

from, in the form of a return on a petition for writ, without need 

for a court order or formal issuance of writ.

. . .

SDCL 11-2-61 (emphasis added).

[¶10.] This Court has previously noted that the Legislature intended 

certiorari to be the only remedy to appeal the decision of a board of adjustment: 

“[w]e believe that the repeal of the prior statutes and the enactment of this new 

comprehensive appellate scheme [i.e., SDCL 11-2-61 to -65] expressed legislative 

intent to completely occupy the field of taking board of adjustment appeals.” In re 

Yankton Cnty. Comm’n, 2003 S.D. 109, ¶ 18, 670 N.W.2d 34, 40.

[¶11.] The exclusive means to challenge the Board of Adjustment’s November 

2015 decision approving the variance was through a writ of certiorari under SDCL 

11-2-61. Without any effort to petition for a writ of certiorari under SDCL 11-2-61, 
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the November 2015 variance decision became final 30 days after it was filed.

Because the circuit court determined this decision had been filed by December 15, 

2015, the Board of Adjustment’s November 2015 variance decision became final no 

later than January 14, 2016.

[¶12.] The circuit court acknowledged that the time to appeal the Board of 

Adjustment’s decision would have expired on January 14, 2016. However, the 

circuit court determined that the Board of Adjustment’s November 2015 decision 

was not final because the January 14, 2016 letter asking the Board of Adjustment 

to “reconsider” its November 2015 decision was submitted within the 30-day 

timeframe for filing an appeal.

[¶13.] We disagree with the circuit court’s reasoning. As noted in Jundt, the 

“right to reverse an earlier, erroneous adjudication lasts until jurisdiction is lost by 

appeal or until a reasonable time has run, which would at least be co-extensive with 

the time required by statute for review.” 2007 S.D. 62, ¶ 7, 736 N.W.2d at 512 

(quoting Stearns-Hotzfield v. Farmers Ins. Exch., 360 N.W.2d 384, 389 (Minn. Ct. 

App. 1985)). Consequently, any authority the Board of Adjustment had to 

reconsider its November 2015 decision ceased to exist when that decision became 

final on January 14, 2016. The filing of a request for reconsideration did not extend 

the time to appeal, and the Board of Adjustment did not reconsider the variance 

before the appeal time expired. Consequently, the Board of Adjustment no longer 

had the authority to reconsider the variance when it did so on March 29, 2016.
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[¶14.] SDCL 21-24-12 gives circuit courts the broad ability to provide 

declaratory relief. We reverse and remand for a declaration, consistent with this 

opinion, of the Gonsors’ rights under the variance the Board of Adjustment granted 

on November 17, 2015.

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

Justices, concur.

2. SDCL 21-24-1 provides:

Courts of record within their respective jurisdictions shall have 

power to declare rights, status, and other legal relations 

whether or not further relief is or could be claimed. No action or 

proceeding shall be open to objection on the ground that a 

declaratory judgment or decree is prayed for. The declaration 

may be either affirmative or negative in form and effect; and 

such declaration shall have the force and effect of a final 

judgment or decree.