#24015-a-CALDWELL, Circuit Judge 

2007 SD 35

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

LAMAR OUTDOOR ADVERTISING 

OF SOUTH DAKOTA, INC., Petitioner and Appellant, 

 v. 

CITY OF RAPID CITY, a municipality, 

THE RAPID CITY COUNCIL and TOM JOHNSON, 

MIKE SCHUMACHER, SAM KOOIKER, DEB 

HADCOCK, KAREN GUNDERSON OLSON, BILL 

OKREPKIE, RAY HADLEY, RON KROEGER, 

MALCOM CHAPMAN, and BOB HURLBUT, in 

their capacity as members of the Rapid 

City Council and BRAD SOLON, in his 

official capacity as Building Official 

for the CITY OF RAPID CITY, Respondents and Appellees, 

 and 

EPIC OUTDOOR ADVERTISING, LLP, Intervenor and Appellee. 

* * * * 

APPEAL FROM THE CIRCUIT COURT 

OF THE SEVENTH JUDICIAL CIRCUIT 

PENNINGTON COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE A. PETER FULLER 

Judge 

* * * * 

ROBERT L. MORRIS of 

Day, Morris Law Firm Attorneys for petitioner 

Belle Fourche, South Dakota and appellant. 

JOEL P. LANDEEN 

City Attorney's Office Attorneys for respondent 

Rapid City, South Dakota and appellee. 

MICHAEL P. REYNOLDS of 

Barker and Reynolds Attorneys for intervenor 

Rapid City, South Dakota and appellee. 

* * * * 

 CONSIDERED ON BRIEFS 

 OCTOBER 4, 2006 

 OPINION FILED 4/4/07 
#24015 

CALDWELL, Circuit Judge 

[¶1.] Lamar Outdoor Advertising of South Dakota, Inc. (Lamar) petitioned 

the circuit court for a writ of certiorari to annul the action taken by the Rapid City 

Common Council (City Council) and a writ of mandamus to compel City Building 

Official Brad Solon (Building Official) to issue a stop work order to Epic Outdoor 

Advertising (Epic). The circuit court found the City Council had jurisdiction to hear 

the matter. The circuit court ended its inquiry there, finding Lamar failed to make 

the required showing that the City Council acted fraudulently, arbitrarily or with 

willful disregard of undisputed or indisputable proof. We affirm. 

FACTS 

[¶2.] In 2002 the City Council made considerable revisions to Chapter 15.28 

of the Rapid City Municipal Code (RCMC) in order to better regulate signs within 

Rapid City, South Dakota. Chapter 15.28, referred to as the sign code, was a 

response to the City Council's findings that off premise signs adversely affect the 

scenic beauty of the city and that the previous regulations adopted by the city were 

inadequate to protect the scenic beauty of the Black Hills. Preamble to RCMC § 

15.28, Ord. 3813. 

[¶3.] From 2002 until 2004 few exemptions existed in the revised sign code. 

In 2004 the City Council broadened an exemption for signs constructed for a public 

purpose. The original 2002 building permit exemption stated: 

The following types of signs and activities are exempt 

from the provisions 15.28.040(A) [sic]1: 

* * * 

 

1. The ordinance should be 15.28.080(A), which is the Sign Building Permit 

section of the sign code. 
#24015 

-2- 

10. Signs required or specifically authorized for a public 

purpose by any law, statute or ordinance; which may be of 

any type, number, area, height above grade, location, 

illumination, or animation, required by law, statute or 

ordinance under which the signs are erected. In no event, 

however, shall such sign or part thereof contain an 

advertising message. 

RCMC § 15.28.080(B)(10), Ord. 3813. In 2004 it was changed to: 

The following types of signs and activities are exempt 

from provisions 15.28.080(A): 

* * * 

10. Signs required or specifically authorized for a public 

purpose, which may be of any type, number, area, height 

above grade, location, illumination, or animation. 

RCMC § 15.28.080(B)(10), Ord. 4030. 

[¶4.] In March 2005, relying on the public purpose exemption of the 

ordinance, Epic began construction of four electronic reader boards in four different 

locations, all in railroad right-of-ways in Rapid City. Epic did not obtain a permit 

before beginning construction. Shortly after construction began, the Building 

Official red tagged the signs and issued a stop work order because Epic had not 

obtained a sign permit.2 

 

2. The letter sent to Epic from the Building Official provided: 

Construction of a sign structure has commenced in the 1400 

Block of West Main Street in Rapid City in the railroad right-ofway. City records reveal no permit for this construction. Signs 

erected without permits are considered unlawful (RCMC § 

15.28.010), therefore the Building Official has determined that 

the signs shall be removed (RCMC § 15.28.030). Also, a 

conditional permit for an off-premises sign is required. City 

records also reveal that no conditional permit has been issued 

for this location. 
#24015 

-3- 

[¶5.] On April 20, 2005, Epic appealed the Building Official's decision to the 

Sign Code Board of Appeals (Board), pursuant to RCMC § 15.28.270.3 In its appeal, 

Epic argued that it did not need a sign building permit because it was utilizing the 

public purpose exemption of the sign code. After deliberations, the Board voted to 

continue Epic's appeal to May 18, 2005, so that notice of the hearing could be sent to 

all adjacent landowners. At the conclusion of the May hearing, the Board upheld 

the Building Official's decision that Epic did not fit within the public purpose 

exemption. Epic appealed the decision of the Board to the City Council on May 24, 

2005. 

[¶6.] Around that same time the City Council amended the sign building 

permit exemption that Epic was attempting to utilize. The new language of the 

exemption provided: 

The following types of signs and activities are exempt 

from the provisions 15.28.080(A): 

* * * 

10. Signs for a public purpose, as declared by the City 

Council, which may be of any type, number, area, height 

above grade, location, illumination, or animation; 

provided that any request for such a declaration can only 

be made by a public body exercising governmental 

authority. 

RCMC § 15.28.080(B), Ord. 5067. The City Council sought to change the 

exemption, in part, because the Council found it was in the best interest of the 

public to amend the language of the section for the purpose of clarifying both the 

language and the original intent of the Council and for insuring that all future uses 

 

3. RCMC § 15.28.270 provides that "[t]here is created a Sign Code Board of 

Appeals to hear and decide appeals and decisions made by the Building 

Official." 
#24015 

-4- 

of this exemption would be approved by the Council. Preamble to Ord. 5067. The 

ordinance also contained a section that specifically stated that it would be 

retroactive and apply to all signs that are currently proposed or under construction. 

Ord. 5067. The ordinance was first read May 16, 2005, and became effective July 5, 

2005. 

[¶7.] Epic's appeal of the Board's decision was heard during a July 18, 2005, 

City Council meeting. Epic strenuously disputed the City Attorney's argument that 

only signs approved by a governing body or a body exercising governmental 

authority could use the public purpose exemption. Epic relied on the plain language 

of the ordinance effective at the time it began construction, which did not identify 

what body was required to specifically authorize signs for a public purpose. Epic 

also disputed the City Attorney's contention that the signs would not serve a public 

purpose, highlighting all of the civic and charitable organizations that would be 

allowed to use the signs at no cost. These groups included, but were not limited to, 

the Journey Museum, the Dahl Fine Arts Center, the Convention and Visitors 

Bureau and the Rapid City Area Hospitality Association. 

[¶8.] After considering the arguments, the City Council voted 9-1 to 

overturn the decision of the Board and allow the signs to be finished under the 

public purpose exemption to the sign code as it existed when construction began. 

[¶9.] On October 3, 2005, Lamar filed a petition for writ of certiorari 

challenging the jurisdiction of the City Council's decision to overturn the Board and 

a writ of mandamus seeking to compel the Building Official to reinstate the stop 

work order on all four of Epic's signs. On October 14, 2005, Epic filed a motion for 
#24015 

-5- 

leave to intervene, which was granted after a hearing on the motion held October 

28, 2005. The parties stipulated to the certified record of all proceedings that were 

presented to the Board and the City Council on November 15, 2005. 

[¶10.] On December 2, 2005, a hearing was held on Lamar's petitions for writ 

of certiorari and writ of mandamus. No additional evidence was offered at the 

hearing. The Honorable Judge A. P. Fuller issued a memorandum opinion denying 

Lamar's requests on December 21, 2005, relying on the certified record and the 

arguments of counsel. In his decision, Judge Fuller found that the City Council had 

jurisdiction to hear the appeal of the Board and that Lamar failed to show that the 

City Council exceeded its jurisdiction by acting fraudulently, arbitrarily or with 

willful disregard of undisputed or indisputable proof. 

[¶11.] Lamar filed a motion for reconsideration on December 27, 2005. On 

January 11, 2006, Judge Fuller signed the findings of fact and conclusions of law 

denying Lamar's petitions and their motion for reconsideration. Lamar filed its 

notice of appeal on February 17, 2006. 

STANDARD OF REVIEW 

[¶12.] "In certiorari proceedings, the initial scope of review is limited to 

determining whether the inferior courts, officers, boards or tribunals had 

jurisdiction to take the action under review, and whether they properly utilized 

their authority." In re Writ of Certiorari as to Wrongful Payments of Attorney Fees 

Made by Brookings Sch. Dist. Sch. Bd., 2003 SD 101, ¶9, 668 NW2d 538, 542. Our 

review is also limited: 

Because this matter was presented to the trial court on 

certiorari, our scope of review is limited to the questions 
#24015 

-6- 

of whether the inferior courts, officers, boards, and 

tribunals had jurisdiction and whether they have 

regularly pursued the authority conferred upon them. 

"When such courts, officers, boards, or tribunals have 

jurisdiction over the subject matter and of the party, their 

action will be sustained unless in their proceedings they 

did some act forbidden by law or neglected to do some act 

required by law." 

Id. (quoting Peters v. Spearfish ETJ Planning Comm'n, 1997 SD 105, ¶6, 567 NW2d 

880, 883). In addition, because the facts in this case are undisputed,4 we are left 

with only questions of law. We review questions of law de novo. Hamerly v. City of 

Lennox Bd. of Adjustment, 1998 SD 43, ¶10, 578 NW2d 566, 568. 

ISSUE 

[¶13.] Did the City Council have jurisdiction to consider Epic's 

appeal of the Board's interpretation of the city sign code?

DECISION 

[¶14.] Lamar filed a writ of certiorari, contending that the City Council 

exceeded its jurisdiction when it overturned the decision of the Board. SDCL 21-31-

1 provides: 

A writ of certiorari may be granted by the Supreme and 

circuit courts, when inferior courts, officers, boards, or 

tribunals have exceeded their jurisdiction, and there is no 

writ of error or appeal nor, in the judgment of the court, 

any other plain, speedy, and adequate remedy. 

 

4. Lamar argues that the circuit court's findings of facts and conclusions of law 

were not appropriate in this case because no evidence outside of the certified 

record was taken. The facts in this matter are set forth in the certified 

record, which was agreed upon by all sides. That some facts are set out in a 

findings of fact format is irrelevant. 
#24015 

-7- 

[¶15.] Chapter 15.28 of the RCMC regulates the construction of signs within 

the city. Section 15.28.270 of the sign code governs appeals. In relevant part, it 

states: 

1. Any person aggrieved or [sic] by any officer, 

department, board or bureau of the city affected by any 

decision of the Building Official may appeal to the 

Common Council the decision of the Sign Code Board of 

Appeals. 

RCMC § 15.28.270(I)(1). 

[¶16.] In this case, Epic attempted to utilize the public purpose exemption in 

the sign code, which at that time exempted "signs required or specifically 

authorized for a public purpose[.]" RCMC § 15.28.080(B)(10), Ord. 4030. The 

Building Official placed a stop work order on the signs. The Board agreed with the 

Building Official's determination that the four signs did not fit the definition of the 

ordinance. Epic was affected or aggrieved by the Board's decision and appealed it to 

the City Council, asking the City Council to determine whether Epic fell within the 

express language of the exemption. Accordingly, the City Council's jurisdiction to 

hear the appeal was proper. 

[¶17.] The circuit court stopped its review there. In doing so, it found that 

Lamar failed to produce any specific evidence that the City Council did not follow 

its own ordinances when it found that Epic's signs fit the definition of public 

purpose and allowed Epic's signs to remain in a railroad right-of-way. The circuit 

court relied on a series of cases in Cole v. Board of Adjustment of the City of Huron, 

in making its decision to stop the inquiry at this point. 1999 SD 54, 592 NW2d 175 

(Cole I); 2000 SD 119, 616 NW2d 483 (Cole II). 
#24015 

-8- 

[¶18.] As recognized by the Court in Cole I, South Dakota law is well 

established regarding a writ of certiorari. "[T]he only question presented on 

certiorari is whether the lower tribunal exceeded its jurisdiction." Cole I, 1999 SD 

54, ¶10, 592 NW2d at 177 (citing Hamerly, 1998 SD 43, ¶14, 578 NW2d at 569 

("[T]he circuit court should . . . [limit] its judgment to a reversal of the Board's final 

decision as illegal and in excess of its jurisdiction."); Willard v. Civil Service Board 

of Sioux Falls, 75 SD 297, 298, 63 NW2d 801, 801 (1954) ("Review of circuit court 

proceedings on certiorari extends only to determination of whether board which 

circuit court reviewed acted without jurisdiction or in excess of jurisdiction; court 

will not review matters of evidence in absence of showing that board acted 

fraudulently or in arbitrary or willful disregard of undisputed and indisputable 

proof."); Kirby v. Circuit Court, McCook County, 10 SD 38, 40-41, 71 NW 140, 141 

(1897) ("[T]he only questions to be considered in this court [on a writ of certiorari] 

are whether the court, upon the record before it, exceeded its jurisdiction, or 

whether that court has failed to regularly pursue the authority of such court.")). 

[¶19.] The Cole cases are similar in both facts and procedure to the matter 

now before us. In Cole, Casey's General Stores sought a variance from the Board of 

Adjustment for the City of Huron to permit the construction of a gas station and 

convenience store in an area zoned residential. The Board of Adjustment granted 

the variance after finding that the land had been vacant for fifty years and was in a 

transition from a residential to a commercial area. An adjacent landowner filed a 

writ of certiorari with the circuit court, arguing that the Board's actions were not 

consistent with the zoning ordinances. The circuit court granted the petition 
#24015 

-9- 

finding that the Board's decision did not comply with the City's zoning ordinance. 

The City appealed the decision. 

 [¶20.] In Cole I, this Court found that the circuit court improperly reviewed 

the record de novo in making its determination that the Board did not comply with 

the ordinance. 1999 SD 54, ¶11, 592 NW2d at 177. The case was remanded with 

direction for the circuit court to apply the correct standard of review. Id. In Cole II, 

this Court again reversed the circuit court, which found the variance had been 

granted illegally and in excess of the Board's jurisdiction because the Board "failed 

to make any finding 'that there exists special conditions which constitute an 

unreasonable deprivation of use.'" 2000 SD 119, ¶6, 616 NW2d at 485. "Instead of 

reviewing whether the Board exceeded its jurisdiction in granting the variance, the 

circuit court tried the case on the merits, by analyzing [the] Huron City Ordinance . 

. . and concluding that there was no evidence supporting the Board's finding of a 

special condition to justify the variance." Id. ¶11. 

[¶21.] This Court stated that the Board of Adjustments has "wide discretion 

in deciding whether or not to grant a variance to a zoning ordinance, and in 

reviewing that decision, the circuit court may not substitute its discretion for that of 

the Board." Id. ¶17. This limitation on scope of review prevents "courts from 

usurping policy decisions from other branches of government." Id. (citation 

omitted). Courts must not review the merits of a petition or evidence for the purpose 

of determining the correctness of a finding, in the absence of a showing that the 

Board "acted fraudulently or in arbitrary or willful disregard of undisputed and 
#24015 

-10- 

indisputable proof." Cole I, 1999 SD 54, ¶10, 592 NW2d at 177; Willard, 75 SD at 

298, 63 NW2d at 801. 

[¶22.] Like in Cole, Lamar argues that the City Council exceeded its 

jurisdiction by failing to apply its own city ordinances. The circuit court properly 

held that Lamar did not meet its burden of showing that the City Council, in 

making its decision to reverse the Board, acted fraudulently or in arbitrary or 

willful disregard of undisputed and indisputable proof. 

[¶23.] Lamar claims that the City Council exceeded its jurisdiction by 

reversing the Board because the signs lie in a railroad right-of-way. To support its 

contention, Lamar points to RCMC § 15.28.080 of the sign code, which is entitled 

sign building permits. RCMC § 15.28.080(A) provides that, except as otherwise 

provided, it is unlawful to "erect, construct, enlarge, move or convert any sign in the 

city, or cause the same to be done without first obtaining a sign building permit[.]" 

Section 15.28.080(B) describes signs and activities that are exempt from obtaining a 

sign code permit. Because the exemption refers specifically to the sign building 

permit section of the sign code, Lamar argues that the public purpose exemption 

does not exempt anything other than the need for a permit. 

[¶24.] However, the plain language of the exemption goes further than simply 

exempting a permit. RCMC § 15.28.080(B)(10) exempts, "signs required or 

specifically authorized for public purpose, which may be of any type, number, area, 

height above grade, location, illumination, or animation." (Emphasis added). The 

ordinance allows for signs authorized for public purpose to be constructed without a 

permit, but it also states that the sign may be of any type, area, height above grade, 
#24015 

-11- 

location, illumination and animation of signs. The City Council did not exceed its 

jurisdiction by permitting the signs to be located in the railroad right-of-way. 

[¶25.] Lamar also contends that the City Council exceeded its jurisdiction by 

failing to apply the recently passed retroactive public purpose exemption to Epic's 

signs. This Court has held that zoning laws may not be retroactively applied so as 

to deprive property owners of prior vested rights by preventing a use that was 

lawful before the enactment of zoning laws. City of Marion v. Rapp, 2002 SD 146, 

¶6, 655 NW2d 88, 90. The City's sign code is similar in nature and the same 

rationale applies. The Building Official stopped construction of the signs. The City 

Council determined the signs fit within the public purpose exemption. To apply the 

new ordinance retroactively would divest Epic of its property rights in the signs 

that were legal when construction began. The City Council did not exceed its 

jurisdiction in failing to apply a law that is legally questionable. 

[¶26.] The circuit court also held that Lamar failed to point to any specific 

evidence that the City Council, in making their determinations, acted arbitrarily or 

with willful disregard. We agree. "[C]ertiorari cannot be used to examine evidence 

for the purpose of determining the correctness of a finding, at least in the absence of 

fraud, or willful and arbitrary disregard of undisputed and indisputable proof [.]" 

Willard, 75 SD at 298, 63 NW2d at 801. It was Lamar's burden to put forth 

evidence that the City Council's decision was made in some arbitrary fashion and it 

failed to do so. Because this came before the circuit court on a writ of certiorari, this 

Court's inquiry will end here. Accordingly, the decision of the lower court to deny 

the writ of certiorari and writ of mandamus is affirmed. 
#24015 

-12- 

[¶27.] GILBERTSON, Chief Justice, and SABERS and MEIERHENRY, 

Justices, concur. 

[¶28.] ZINTER, Justice, concurs specially. 

[¶29.] CALDWELL, Circuit Judge for KONENKAMP, Justice, disqualified. 

ZINTER, Justice, (concurring specially). 

[¶30.] I concur and write to clarify when a retroactive application of zoning 

ordinances is impermissible. 

[¶31.] The Court states that zoning laws may not be applied retroactively to 

deprive property owners of prior vested rights by preventing a use that was lawful 

before the enactment. See supra ¶25 (citing City of Marion v. Rapp, 2002 SD 146, 

¶6, 655 NW2d 88, 90, for the proposition that zoning ordinances cannot be 

retroactively applied to deprive a person of vested rights). This rule, although 

simply stated, is difficult to apply. The difficulty arises in determining when a 

property owner acquires vested rights. The Indiana Supreme Court set forth the 

elements of vested rights in a billboard case.

As a general proposition, the courts have been willing to hold 

that the developer acquires a “vested right” such that a new 

ordinance does not apply retroactively if, but only if, the 

developer “(1) relying in good faith, (2) upon some act or 

omission of the government, (3) . . . has made substantial 

changes or otherwise committed himself to his substantial 

disadvantage prior to a zoning change.” 

Metro Dev. Comm’n of Marion County v. Pinnacle Media, L.L.C., 836 NE2d 422, 

425-426 (Ind 2005) (citing John J. Delaney and Emily J. Vaias, Recognizing Vested 

Development Rights as Protected Property in Fifth Amendment Due Process and 

Takings Claims, 49 Wash U J Urb & Contemp L 27, 31-35 (1996)) (other citation 
#24015 

-13- 

omitted), aff’d and explained on reh’g, Metro Dev. Comm’n of Marion County v. 

Pinnacle Media, L.L.C., 846 NE2d 654 (Ind 2006)). See also, 8 Patrick J. Rohan and 

Eric Damian Kelly, Zoning and Land Use Controls, ch 52D (discussing the concept 

of vested rights). The Indiana Supreme Court ultimately held that although 

construction of a structure was deemed sufficient to create vested rights, having a 

building permit on file did not necessarily create vested rights. Metro Dev. I, 836 

NE2d at 428; Metro Dev. II, 846 NE2d at 656-657.

[¶32.] In this case, the amended ordinance added a new requirement that 

only a public body could request the public purpose exemption. See supra ¶6. 

However, that new provision could not be applied retroactively because construction 

of Epic’s signs started before the new ordinance was adopted. The law is well 

settled that construction generally meets the vested rights test. “Structures in the 

course of construction at the time of the enactment or the effective date of the 

zoning law are exempt from the restrictions of the [new] ordinance.” Metro Dev., 

836 NE2d at 426.