#25407-rev & rem-JKK 

2010 SD 57

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

IN THE MATTER OF THE APPLICATION 

OF B.Y. DEVELOPMENT, INC., a 

South Dakota Corporation, FOR 

PROJECT APPROVAL DEADWOOD 

HISTORIC PRESERVATION OFFICE 

NO. 07050 

* * * * 

APPEAL FROM THE CIRCUIT COURT 

OF THE FOURTH JUDICIAL CIRCUIT 

LAWRENCE COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE RANDALL L. MACY 

Judge 

* * * * 

ROGER A. TELLINGHUISEN 

BRAD P. GORDON 

ERIC J. STRAWN of 

Tellinghuisen & Gordon, P.C. Attorneys for appellee 

Spearfish, South Dakota B.Y. Development. 

JASON A. CAMPBELL 

City of Deadwood Attorney for appellant 

Deadwood, South Dakota City of Deadwood. 

* * * * 

CONSIDERED ON BRIEFS 

ON APRIL 26, 2010 

 OPINION FILED 07/07/10 
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KONENKAMP, Justice 

[¶1.] A business sought approval from the local historic preservation 

commission to expand its building in a historic landmark district. In denying the 

application, the commission relied on city ordinances to conclude, in the words of 

the enabling statute, that the project would “encroach upon, damage, or destroy” 

certain historic properties. In reversing the commission’s ruling, the circuit court 

interpreted the enabling statute without reference to the city ordinances the statute 

empowered the city to enact. We reverse and remand for the circuit court to 

examine both the statute and the ordinances to determine whether the commission 

properly denied the application. 

Background 

[¶2.] B.Y. Development sought approval from the City of Deadwood Historic 

Preservation Commission to expand Cadillac Jack’s Gaming Resort located in the 

Deadwood National Historic Landmark District. On November 1, 2007, after three 

hearings, the Commission denied B.Y.’s application. The Commission found that 

B.Y.’s project would encroach upon, damage, or destroy historic properties in the 

National Register of Historic Places and the State Register of Historic Places. See 

SDCL 1-19B-62; Deadwood City Ordinance (DCO) 17.68.020(11); DCO 17.68.050. 

Further, the Commission denied the permit for noncompliance with 36 CFR 67. See 

SDCL 1-19B-62. 

[¶3.] B.Y. appealed the denial to the circuit court. Following a hearing, the 

court issued a memorandum decision remanding the case to the Commission. The 

Commission was ordered to identify the specific historic properties encroached 
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upon, damaged, or destroyed by B.Y.’s project. After two additional public hearings, 

the Commission again denied B.Y.’s application. Using, among other things, the 

criteria in DCO 17.68.050, the Commission identified the Sinclair Station, Auer 

Garage, Auer House, and Ferris House as specific protected properties affected.1

[¶4.] B.Y. again appealed the Commission’s decision to the circuit court. At 

the hearing, the City argued that in deciding whether an undertaking encroaches 

upon, damages, or destroys a protected historic property, the Commission must 

consider the guidelines adopted under DCO 17.68.050. In particular, counsel for 

the City argued that the Commission “went through [the criteria of DCO 17.68.050] 

and explained that very carefully and in great detail, how they believed in that 

fashion, with those criteria, how this project would either encroach upon, damage, 

or destroy specific historic properties that they listed.” The court asked counsel for 

1. The Commission found that “[t]he proposed new construction encroaches 

upon the Ferris House, Auer House, Auer Garage and Sinclair Station . . . 

due to the size and scale of the project, by completely overshadowing them. . . 

. Thus, this size and scale is inconsistent with the historic character of the 

Ferris House, Auer House, Auer Garage and Sinclair Station. The sheer 

domination of the size, scale and massing of the proposed project creates this 

encroachment.” Further, the Commission found that the project “is not 

compatible and is inconsistent with the historic character of the structures 

because it does not preserve the historic relationship between the buildings 

and the landscape.” According to the Commission, “[t]he relationship 

between the height and width of the undertaking is not similar in proportion 

to existing adjacent historic structures, which, in turn, encroaches upon the 

setting of the adjacent historic structures.” Finally, the Commission found 

that “[t]he proposed new construction’s original space encroaches upon the 

Ferris House by sitting only about 13’ away, severely altering the views from 

this historic structure.” After making these findings, the Commission 

adopted the opinions of Mr. Kuchenbecker contained in his report 

recommending that the Commission not grant B.Y.’s application for project 

approval. 
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the City, “How can a property owner be on notice as to what guidelines the 

[Commission] is going to use to make a determination as to whether a project is 

going to damage, destroy, or encroach upon historic property?” Counsel for the City 

directed the court to DCO 17.68.020(11), which provides that adopted guidelines 

will be considered in determining whether a project will encroach upon, damage, or 

destroy a historic property, and DCO 17.68.050, where it states that “the Historic 

Preservation Commission shall use the following criteria and established design 

review guidelines.” The court questioned whether those guidelines only come into 

effect after it is determined that the project will damage, destroy, or encroach upon 

district property. Counsel for the City responded, “But I think there needs to be 

some criteria to look at in some cases, especially when you’re talking about 

buildings either being within the District or immediately adjacent to specific 

historic buildings, like the Ferris House.” Counsel for B.Y. remarked that “there 

has been no official set of guidelines that delineate what would encroach upon, 

damage, or destroy. . . . Even if [the City has], Your Honor, they don’t have the 

authority to do so. We believe that the [Commission] and the City of Deadwood are 

creatures of statute, and, as such, they are required to go back to SDCL 1-19B-62.” 

[¶5.] The court issued its second memorandum decision and an amended 

order of remand, reversing the Commission’s ruling. Citing the plain meaning of 

the words in SDCL 1-19B-62, the court found no facts to support the conclusion that 

B.Y.’s project would “encroach upon, damage, or destroy” any specific protected 

property. On appeal, the City of Deadwood asserts that the circuit court erred in 

ruling that the Deadwood National Landmark District was not a “property” under 
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SDCL 1-19B-62 and erred when it reversed the Commission’s decision to deny B.Y.’s 

application for project approval.2

Analysis and Decision 

[¶6.] The City first argues that the use of the phrase “any historic property” 

in SDCL 1-19B-62 means that the Commission can also protect historic districts. 

The Deadwood National Historic Landmark District is not a locally designated 

historic district under SDCL ch 1-19B. Nonetheless, because B.Y.’s project is within 

the Deadwood National Historic Landmark District, the City maintains that it was 

entitled to consider whether B.Y.’s project would encroach upon, damage, or destroy 

the Deadwood National Historic Landmark District, in addition to specific historic 

properties. 

[¶7.] Statutory interpretation is a question of law reviewed de novo. In re

Certification of a Question of Law from United States District Court, District of 

South Dakota, Southern Division, 2010 SD 16, ¶10, 779 NW2d 158, 162 (citation 

omitted). When interpreting the words of a statute, we give its language 

paramount consideration, with emphasis toward the plain meaning. Esling v. 

Krambeck, 2003 SD 59, ¶6, 663 NW2d 671, 675-76 (citing City of Rapid City v. 

Anderson, 2000 SD 77, ¶7, 612 NW2d 289, 291-92 (citations omitted)). Only when 

the language of a statute is unclear or ambiguous do we apply our rules of 

2. The City also contends that its decision to deny B.Y.’s project application was 

not arbitrary or capricious. Although B.Y. argued to the circuit court that the 

Commission’s decision was arbitrary and capricious, the court declined to 

rule on that issue, stating, “As the proposed Project does not encroach upon, 

damage or destroy any historic properties, the second issue raised in the 

appeal need not be addressed.”
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construction. See Certification of a Question of Law from United States District 

Court, District of South Dakota, Southern Division, 2010 16, ¶10, 779 NW2d at 162 

(citing Wiersma, 1996 SD 16, ¶6, 543 NW2d at 790 (citation omitted)). 

[¶8.] SDCL 1-19B-62 provides: 

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. 

Properties owned by the State of South Dakota are exempt from 

local review. 

(Emphasis added.) From a plain reading of the statute, the phrase “any historic 

property” does not include historic districts. The Legislature used the word 

“property” and by that use we deduce that the Legislature intended to include only 

those specific properties in the national or state registries of historic places. We 

discern a difference between historic properties and historic districts, which are 

made up of buildings, structures, sites, or surroundings that are of historical, 

architectural, archaeological, paleontological, and cultural significance. See SDCL 

1-19B-34. To construe “any historic property” to encompass historic districts as the 

City insists would force into the statute a word that is simply not there. The circuit 

court did not err when it excluded the Deadwood National Historic Landmark 

District from consideration under SDCL 1-19B-62. 
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[¶9.] The parties next dispute the meaning of “encroach upon, damage, or 

destroy” as used in SDCL 1-19B-62 and as applied by the Commission against B.Y.’s 

application. The City maintains that the Commission was required to use the 

standards in DCO 17.68.050. B.Y., on the other hand, contends that “encroach 

upon, damage, or destroy” must be defined using a dictionary or caselaw usage.3 

Although the City argued the applicability of the ordinances to the circuit court, the 

court did not consider either DCO 17.68.020(11) or DCO 17.68.050 in its decision. 

Rather, it limited its analysis to the terms of SDCL 1-19B-62. 

[¶10.] SDCL 1-19B-62 is an enabling statute. It gives “any county or 

municipality” the authority to “enact an ordinance” to review projects that will 

“encroach upon, damage, or destroy” certain properties. Id. (emphasis added). 

Therefore, the statutory language alone does not control whether the Commission’s 

ruling was proper, and thus the court erred when it did not consider the ordinances 

enacted by the City. Here, the City enacted DCO 17.68.020(11), giving the 

Commission the power “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, which decision to approve or deny shall be based upon the United States 

Department of the Interior Standards for Historic Preservation Projects codified in 

3. B.Y. also argues that the Commission improperly considered the standards in 

36 CFR 67 in denying its permit request. We need not address the 

applicability of 36 CFR 67 because the matter is remanded for the circuit 

court to review the Commission’s decision of encroachment, damage, or 

destruction under the guidelines established in DCO 17.68.050. 
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36 CFR 67[.]” The ordinance further provides that “[t]his 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)[.]” DCO 17.68.020(11). DCO 17.68.050 

then sets forth the “criteria and established design review guidelines” the 

Commission “shall use[.]”4 The Commission also adopted the Downtown Design 

Guidelines to provide standards in reviewing project applications.5

 (continued . . .) 

4. DCO 17.68.050(B), New Construction provides: 

1. In advance of new construction, steps shall be taken to insure 

evaluation of possible archaeological resources, as set forth in 

SDCL 1-20. 2. The following aspects of new construction shall 

be visually compatible with the buildings and environment with 

which the new construction is visually related. Including but 

not limited to: the height, the gross volume, the proportion 

between width and height of the façade(s), the proportions and 

relationship between door and windows, the rhythm of solids to 

voids created by openings in the facade, the materials, the 

textures, the colors, the patterns, the trims and the design of the 

roof. 3. Existing rhythm created by existing building masses 

and spaces between them shall be preserved. 4. The landscape 

shall be compatible with the resource, and it shall be visually 

compatible with the environment with which it is visually 

related. Landscaping shall also not prove detrimental to the 

fabric or a resource, or adjacent public or private improvements 

like sidewalks and walls. 5. No specific architectural style shall 

be required. 6. With respect to these new construction criteria, 

the commission shall also consider the zoning classification and 

historic integrity of visually related buildings. 

5. The Downtown Design Guidelines provide: 

1. New buildings should be compatible with historic buildings 

and development patterns without imitating older styles or 

details of historic buildings. This is a strongly-established policy 

of historic preservation. Deadwood’s design guidelines can be 
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__________________ 

(. . . continued) 

[¶11.] Because DCO 17.68.020(11) indicates that the section will apply only if 

the undertaking will encroach upon, damage, or destroy protected historic 

properties, and to make such determination, the Commission shall use certain 

adopted standards, the Commission was empowered to consider the standards in 

DCO 17.68.050 when it evaluated B.Y.’s project application. But the propriety of 

the Commission’s decision that such encroachment, damage, or destruction would 

occur based on those guidelines has not yet been reviewed.6 Therefore, we remand 

for the court to review the Commission’s decision under DCO 17.68.020(11) and 

DCO 17.68.050, as well as SDCL 1-19B-62. 

[¶12.] Reversed and remanded. 

[¶13.] GILBERTSON, Chief Justice, and ZINTER, MEIERHENRY, and 

SEVERSON, Justices, concur. 

used to determine the significant characteristics of various types 

of historic buildings, which if incorporated into the design of new 

buildings, will produce compatible new buildings. Exact 

duplication of earlier ornamentation or architectural details is 

not desirable. Simplicity is an important aspect of contemporary 

deigns and materials and by itself can go a long way toward 

creating compatibility. 2. The following should be evaluated: 

local building restrictions; whether the buildings are 

commercial, industrial or residential in character; how far back 

from the street the building is being placed; how much space 

there is between buildings; whether the spacing is regular along 

the street; how high the buildings are; the proportion of height 

to width; the roof forms; how the buildings are placed on a slope; 

what kinds of windows and doors are most common; how trim 

and ornament are used, and any other notable features used in 

the buildings of the surrounding area. 

6. Whether the Deadwood ordinances exceed the powers conferred by SDCL 1-

19B-62 has not been argued, and therefore, we do not address it.