#23591-a-TIMM, Circuit Judge

2006 SD 4

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

SUZANNE KORZAN, JOAN SCHULZ,

BETTY HEIDINGER, LUCILLE GEISLER

and GLADYS SEBASTIAN, Plaintiffs and Appellants,

 v.

CITY OF MITCHELL, Defendant,

 and

ROMAN CATHOLIC CHURCH

OF HOLY FAMILY OF MITCHELL, Intervenor and Appellee.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SIXTH JUDICIAL CIRCUIT

HUGHES COUNTY, SOUTH DAKOTA

* * * *

HONORABLE MAX A. GORS

Judge

* * * *

TIMOTHY W. BJORKMAN

MIKE C. FINK of

Bjorkman & Fink

Bridgewater, South Dakota Attorneys for appellants.

JOHN F. COGLEY of

Morgan, Theeler, Wheeler, Cogley

 & Petersen

Mitchell, South Dakota Attorneys appellee.

* * * *

ARGUED NOVEMBER 8, 2005

 OPINION FILED 01/04/06
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TIMM, Circuit Judge

[¶1.] Korzan appeals from the circuit court’s findings that the City of 

Mitchell had complied with SDCL 1-19A-11.1 and that application of SDCL 1-19A11.1 created a substantial burden on Holy Family in violation of the Religious Land 

Use and Institutionalized Persons Act of 2000. We Affirm. 

Facts and Procedural History

[¶2.] The Appellants seek to prevent the demolition of Notre Dame 

Academy, a building that is listed on the National and State Registers of Historic 

Places. The Notre Dame Academy (School) is located on the one block campus of the 

Holy Family Catholic Church (Holy Family). The School, a three story structure, 

was built in 1912. Additions were constructed in 1922 and 1955. The School, 

church and a rectory, also located on the campus, were listed on the National 

Register of Historic Places in 1974 and subsequently placed on the South Dakota 

Register. 

[¶3.] In 1995 Holy Family received a report from the State Fire Marshall’s 

Office whose inspection of the School revealed a number of building and fire code 

violations as well as other unsafe conditions that required correction. Holy Family, 

along with Holy Spirit (the other Catholic Church in Mitchell) formed a task force to 

study the educational facilities at both locations with the initial goal of preserving

the School. The task force and the two Parishes met on numerous occasions and 

eight options were studied. The task force ultimately recommended that the old 

school be demolished, a new school be built at Holy Family, and that the school at 

Holy Spirit be added on to and remodeled. Members of both Parishes met in 
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September of 1998. All options were explained and discussed. A strong majority 

approved the recommended option of demolishing the School.

[¶4.] In May of 1999 Holy Family announced plans to demolish the School 

and initiated the process with the City of Mitchell (City) to obtain a demolition 

permit. The State Office of History (SOH) was notified on May 19, 1999, of the 

proposed project in accordance with SDCL 1-19A-11.1. SOH determined that the 

project would have an adverse effect on a historic building and requested a case 

report on June 1, 1999. A case report was prepared. The Mitchell City Council

(City Council) considered the project in lengthy discussions at a meeting on May 17, 

1999. The Case Report was considered by the Mitchell Historic Preservation 

Commission (Historic Commission) on July 6, 1999. The Historic Commission voted 

to unanimously agree with the findings of the Case Report that there were no 

feasible and prudent alternatives to the demolition of the School and that the report 

included all possible planning to minimize the harm to the historic property. 

[¶5.] The City Council considered the matter again on July 6, 1999; and 

voted unanimously to adopt the Case Report and issue the demolition permit. The 

City Council found that based on the consideration of all relevant facts, there were

no feasible and prudent alternatives to the proposal to demolish the School and that 

the project included all possible planning to minimize harm to historic property. 

Korzan appealed to the Sixth Judicial Circuit on July 16, 1999. On October 25, 

2001, the circuit court remanded the matter back to the City Council for further 

proceedings only after the SOH had the opportunity to comment on the project. The 

circuit court determined that SDCL 1-19A-11.1 did not permit the City Council to 
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make its final findings regarding feasibility and alternatives prior to comment from 

SOH. 

[¶6.] The application for a demolition permit lay dormant from the date of 

the circuit court’s remand in 2001 well into 2003. During that time, Holy Family 

and Holy Spirit made the decision to construct a new school at Holy Spirit. The 

question of what to do with the School at Holy Family remained under study. 

Evolving needs of the Parish came into play, i.e., the need for a handicap accessible 

entrance to the Church and more off-street parking. Holy Family also considered 

several other options for the School. These options included renovation of the 

School for use as gathering space, a small chapel and offices or converting the 

School to housing for the elderly. In evaluating these options, it was determined 

that having a housing complex and the Church in such close proximity would not be

compatible.

1 It was also determined that renovating the School would not be

suitable for the needs of the Parish. Holy Family concluded that the occupied space 

could be used in a more efficient manner for a new structure and off-street parking. 

Thus, in 2003 Holy Family again sought a demolition permit from the City Council. 

[¶7.] A supplement to the Case Report was prepared and sent to the SOH. 

The Historic Commission held a hearing on August 20, 2003, and received

testimony from proponents and opponents. They again considered the matter on 

 

1. The School is located less than 100 feet from the Church. 
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August 23 and October 22, 2003. At both of these meetings the Historic 

Commission heard proposals and testimony from both sides. 

[¶8.] On October 28, 2003, the Historic Commission having reviewed both 

the original Case Report and the Supplement, considered the testimony of 

proponents and opponents, and examined the old school, voted five to two in favor of 

a motion to agree with the findings of both the original Case Report and 

Supplement that there were no feasible and prudent alternatives to demolition of 

the School. 

[¶9.] The City Council received a response from SOH on December 3, 2003. 

In this response SOH concluded that several feasible and prudent alternatives to 

demolition existed including: 1) doing a less than full scale renovation of the 

original building for use as a chapel with a handicapped accessible entrance with 

the rest of the building being “mothballed” for future renovations; and, 2) 

supporters of the School be given the opportunity to raise money to pay the 

difference, if any, between the cost of renovating the building and the cost of 

demolishing the current building and constructing a new building. 

[¶10.] The City Council considered the request on December 15, 2003. After 

reviewing the original Case Report, the Supplement, the response from SOH and 

hearing testimony from both sides, the City Council unanimously adopted a 

resolution. This resolution acknowledged the Case Report, the Supplement and the 

decision of the Historic Commission and stated, based on consideration of all 

relevant factors, that there were no reasonable and prudent alternatives to the 

demolition of the School. The City Council also found that the project included all 
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possible planning to minimize harm to the historic property resulting from the 

demolition. 

[¶11.] Korzan appealed again to the Sixth Judicial Circuit. The circuit court 

affirmed the decision of the City Council in all respects. The court also concluded 

that the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 

42 USC § 2000cc et seq., prohibits a governmental body from imposing or 

implementing a land use regulation in a manner that would substantially burden 

the religious exercise of a person or institution. The court further held that as it 

was being applied in this case, SDCL 1-19A-11.1 was a “land use regulation” as 

defined in RLUIPA and that the statutory prerequisites of RLUIPA were satisfied. 

Finally, the court found that RLUIPA prohibited the application of SDCL 1-19A11.1, as the effect of the statute was to deny Holy Family the ability to develop its 

property as it desires in accord with its religious teachings. Korzan appeals raising 

the following issues:

1. Whether the trial court erred in finding that the Mitchell City 

Council had complied with SDCL 1-19A-11.1.

2. Whether application of SDCL 1-19A-11.1 created a substantial 

burden on Holy Family’s religious exercise and is thus barred 

under RLUIPA.

Standard of Review

[¶12.] We review an agency’s decision the same as the circuit court, “unaided 

by any presumptions of the correctness of the circuit court’s determination.” In Re 

B.Y. Development Inc., 2000 SD 102, ¶6, 615 NW2d 604, 607. Our review is

confined to the record. SDCL 1-26-35. Questions of law and statutory construction 

are fully reviewable. B.Y. Development, 2000 SD 102, ¶6, 615 NW2d at 608. This
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Court shall give great weight to the findings made and inferences drawn by an 

agency on questions of fact. SDCL 1-26-36. The court may reverse or modify the 

decision if the administrative findings, inference, conclusions, or decisions are 

clearly erroneous in light of the entire evidence in the record or arbitrary or 

capricious or characterized by abuse of discretion or clearly unwarranted exercise of 

discretion. Id. 

Analysis and Decision

[¶13.] 1. Whether the trial court erred in finding that the Mitchell 

City Council complied with SDCL 1-19A-11.1.

[¶14.] Korzan contends that the City Council did not comply with the 

requirements of SDCL 1-19A-11.1. This statute provides in relevant part: 

The state or any political subdivision of the state, or any 

instrumentality thereof, may not undertake any 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 until the Office of History has been 

given notice and an opportunity to investigate and comment on 

the proposed project. The office may solicit the advice and 

recommendations of the board with respect to such project and 

may direct that a public hearing be held thereon. If the office 

determines that the proposed project will encroach upon, 

damage or destroy any historic property which is included in the 

national register of historic places or the state register of 

historic places or the environs of such property, the project may 

not proceed until:

(1) The Governor, in the case of a project of the state or an 

instrumentality thereof or the governing body of the 

political subdivision has made a written 

determination, based upon the consideration of all 

relevant factors, that there is no feasible and prudent

alternative to the proposal and that the program 

includes all possible planning to minimize harm to 

the historic property, resulting from such use; and

. . .
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Any person aggrieved by the determination of the Governor or 

governing body may appeal the decision pursuant to the 

provisions of chapter 1-26[.]

SDCL 1-19A-11.1. Specifically, Korzan contends that the City Council failed to 

consider all relevant factors and failed to evaluate whether there were any feasible 

and prudent alternatives to the proposed demolition. 

[¶15.] The City Council was informed by the SOH that the proposed 

demolition of the School would destroy historic property. Thus, under SDCL 1-19A11.1 the City Council could not issue the demolition permit until it made a written 

determination, after reviewing all relevant factors, that there were no feasible and 

prudent alternatives and all possible planning to minimize harm to the historic 

property had been considered. This Court has held that a city “is not required to 

consider as ‘relevant factors’ any and all alternatives, but only those supported by 

sufficient facts to indicate they are feasible and prudent.” B.Y. Development, 2000 

SD 102, ¶16, 615 NW2d at 610. 

[¶16.] Holy Family, the City Council, and the Historic Commission 

considered several alternatives to demolishing the School, either in whole or just 

the 1922 and 1955 additions. Each time, Holy Family, the Historic Commission and 

the City Council determined that none of the alternatives were feasible. The last 

two alternatives considered by the City Council were provided by the SOH. These 

alternatives were: 1) a less than full scale renovation of the original building and 

“mothballing” the remaining portion of the building; and, 2) allowing supporters of 

the building the opportunity to raise money to pay the difference in costs between 

demolishing and building a new building to renovating the current building. As the 
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trial court correctly pointed out, “mothballing” the School is neither feasible nor 

prudent. The trial court recognized that mothballing the structure would leave 

many unanswered questions: how long must the Church wait, who would pay for 

stabilization of the roof to prevent further deterioration of the building, who would 

pay the cost of maintenance, who would decide when a use was found and when the 

search was over? The determination by the City Council that the first alternative 

was not feasible was not clearly erroneous.

[¶17.] The other alternative provided by SOH, allowing Korzan an 

opportunity to raise money, is also not feasible or prudent. Holy Family, the 

Historic Commission, and the City Council have already determined that the needs 

of the church cannot be met unless the building is torn down. Raising money, an 

enterprise that may or may not succeed and could take several years, does not 

address this concern and it does not give Holy Family the space it needs. What it 

does give them is a building they do not want. The City Council was not clearly 

erroneous in determining this option was not feasible. 

[¶18.] This Court’s function is to “decide from the record whether the [City 

Council] took a hard look at the prudent and reasonable alternatives using relevant 

factors and based its decision on evidence. The weight to be given the individual 

factors is for the [City Council] to decide.” B.Y. Development., 2000 SD 102, ¶17, 

615 NW2d at 611. The record reveals that extensive consideration has been given 

to this project, a project that has been ongoing for nearly six years. A Case Report 

detailing options and the feasibility of those options was prepared and reviewed by 

both the Historic Commission and City Council. Both bodies determined that, after 
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considering all relevant factors, no feasible and prudent alternatives to the 

demolition of the School existed. This Case Report was sent to the SOH as required 

under SDCL 1-19A-11.1. A Supplement to the original Case Report was prepared, 

describing what had transpired from the time of the first appeal to the present. The 

Supplement set out the alternatives to demolition that had been considered and the 

reasons why they had not been pursued. The Supplement was reviewed by the 

Historic Commission and the City Council. Again the Historic Commission 

determined, after reviewing all relevant factors that no feasible and prudent 

alternatives to the proposed demolition of the School existed. 

[¶19.] The City Council reviewed and approved the Supplement and the 

recommendations of the Historic Commission. This Supplement was then 

forwarded to the SOH for comment as per SDCL 1-19A-11.1. The City Council 

received and reviewed those comments from the SOH. At a meeting on December 

15, 2003, the City Council also heard testimony and presentations from proponents 

and opponents of the project. At the conclusion of this meeting, the City Council 

passed a Resolution in which they acknowledged the hearings they had held and 

those held by the Historic Commission. They acknowledged the vote in favor of 

demolition by the Historic Commission. They acknowledged the comments provided 

by SOH and that they had considered them. Finally, the City Council concluded

that upon consideration of all relevant factors, there were no feasible and prudent 

alternatives to the demolition of the School and the project included all possible 

planning to minimize harm to the historic property. 
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[¶20.] Based on the record, it is clear that the City Council took a ‘hard look’ 

at this project. All options and proposals against demolition were presented by 

proponents and opponents to both the Historic Commission and the City Council on 

several occasions. Twice, after taking a ‘hard look’ both the Historic Commission 

and the City Council determined that no feasible and prudent alternatives to 

demolition of the School existed.

2

[¶21.] On this record, the trial court did not err in concluding that the City 

Council’s determination was not clearly erroneous or arbitrary or capricious. 

[¶22.] 2. Whether application of SDCL 1-19A-11.1 to this case 

creates a substantial burden on Holy Family’s religious 

exercise and is thus barred under RLUIPA.

[¶23.] Because we have held the trial court ruled correctly on the first issue, 

the second issue need not be addressed. 

[¶24.] Affirmed.

[¶25.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and 

MEIERHENRY, Justices, concur.

[¶26.] TIMM, Circuit Judge, sitting for ZINTER, Justice, disqualified.

 

2. Although the parties engage in an extended discussion of authority from 

another jurisdiction, (Allen Realty, Inc. v. City of Lawrence, 790 P2d 948 (KS 

1990) and Lawrence Preservation Alliance v. Allen Realty Inc., 819 P2d 138 

(KS 1992), the result in this case is controlled by B.Y. Development, 2000 SD 

102, 615 NW2d 604. Consequently, we do not address that authority.