Conditional Use Permit Decisions Are Quasi-Judicial and Not Referable; Ordinance Aligning CUP Authority Is Administrative Under SDCL 7-18A-15.1

1. Introduction

Lawrence County adopted Ordinance #24-05 amending its zoning ordinance provisions governing conditional use permits (CUPs) (and, similarly, variances). The amendment principally replaced references to the “County Commission” and “Planning and Zoning Board” with “Board of Adjustment,” clarifying that the commissioners, acting as the board of adjustment, would decide CUP applications.

Save Centennial Valley Association (SCVA) and Charles Brown sought to force a public referendum on Ordinance #24-05 under SDCL 7-18A-15.1, contending the ordinance was a “legislative decision.” The Lawrence County Auditor rejected the petition as non-referrable because the ordinance was “administrative.” SCVA pursued mandamus to compel ballot placement; the circuit court denied relief on judgment on the pleadings, and SCVA appealed.

The central issues were (1) how to distinguish “legislative” from “administrative” county commission decisions for referendum purposes under SDCL 7-18A-15.1, and (2) whether shifting/clarifying the approving authority for CUPs (and any claimed effect on citizen referendum rights over future CUP decisions) constituted a legislative policy change.

2. Summary of the Opinion

The Court affirmed judgment on the pleadings and the denial of a writ of mandamus. It held that discretion in government action is not, by itself, decisive of “legislative” status under SDCL 7-18A-15.1; instead, the statutory question is whether the decision establishes a new permanent law/policy or merely executes an already-adopted plan. Ordinance #24-05 did not change CUP standards or criteria; it implemented/clarified an existing statutory and ordinance framework by specifying the commissioners sitting as the board of adjustment as the decision-maker.

Critically, the Court also rejected the premise that citizens lose a referendum right over CUP decisions when the decision-maker is the board of adjustment. It reasoned that CUP decisions are quasi-judicial, constrained by due process and objective criteria, and—by statute—are reviewable through certiorari regardless of the “form of the approving authority.” Accordingly, CUP decisions are not “legislative” within the meaning of SDCL 7-18A-15.1.

3. Analysis

A. Precedents Cited (and How They Shaped the Decision)

• Sturzenbecher v. Sioux Cnty. Ranch, LLC, 2025 S.D. 24
  Used for the procedural framework governing judgment on the pleadings under SDCL 15-6-12(c) (no material fact dispute; entitlement to judgment as a matter of law; de novo appellate review).
• Puffy's, LLC v. Dep't of Health, 2025 S.D. 10
  Supplied the mandamus standard of review (abuse of discretion) and the principle that legal errors constitute abuse of discretion; statutory interpretation in mandamus actions is reviewed de novo.
• Okerson v. Common Council of City of Hot Springs, 2009 S.D. 30 and Hauck v. Clay Cnty. Comm'n, 2023 S.D. 43 and Pres. French Creek, Inc. v. Cnty. of Custer, 2024 S.D. 45
  These cases framed mandamus as an extraordinary, narrow remedy requiring a clear right/duty and the absence of an adequate alternative remedy.
• Vitek v. Bon Homme Cnty. Bd. of Comm'rs, 2002 S.D. 45
  Provided the specific mandamus requirement applicable to referendum disputes: a clear legal right to compel the auditor/official and a definite legal obligation to perform the referendum-related duty.
• Kirschenman v. Hutchinson Cnty. Bd. of Comm'rs, 2003 S.D. 4 and Wang v. Patterson, 469 N.W.2d 577 (S.D. 1991)
  SCVA relied on these for the proposition that when local government has discretion and acts under it, the action is legislative and referable. The Court narrowed that idea: it held that “discretion alone is not dispositive,” because SDCL 7-18A-15.1 treats some discretionary acts (e.g., program supervision, personnel actions) as administrative. This effectively limits the breadth of Kirschenman’s referendum rationale in the CUP context.
• Bechen v. Moody Cnty. Bd. of Comm'rs, 2005 S.D. 93
  Used in two ways: (1) to note that Kirschenman was “overruled on other grounds” (the Court’s earlier concern about treating a county commission as identical to a board of adjustment), and (2) for the statement that board of adjustment decisions cannot be referred—though the Court’s broader reasoning in this case emphasizes that CUP decisions are not referable as “legislative” regardless of the approving authority, given their quasi-judicial character and statutory certiorari review scheme.
• In re Conditional Use Permit No. 13-08, 2014 S.D. 75 and Tibbs v. Moody Cnty. Bd. of Comm'rs, 2014 S.D. 44
  Cited for background on pre-2015 law: a board of adjustment could be authorized by comprehensive zoning ordinance to consider CUPs, but such authority was not necessarily exclusive. The Court ultimately found it unnecessary to decide exclusivity in this appeal.
• Miles v. Spink Cnty. Bd. of Adjustment, 2022 S.D. 15 and Holborn v. Deuel Cnty. Bd. of Adjustment, 2021 S.D. 6
  Central to the Court’s classification of CUP decisions as quasi-judicial and subject to due process constraints—supporting the conclusion that CUP determinations do not “make new law” but apply existing standards to specific facts.
• Dep't of Game, Fish & Parks v. Troy Twp., 2017 S.D. 50 and Prentis v. Atl. Coast Line Co., 211 U.S. 210 (1908)
  Provided the conceptual test distinguishing legislative from quasi-judicial administrative action: quasi-judicial action applies existing law to present/past facts; legislative action makes new rules for future application.
• Schafer v. Deuel Cnty. Bd. of Comm'rs, 2006 S.D. 106
  Supported the due process foundation in zoning/CUP matters and the need for standards and evidentiary decision-making—undercutting the idea that CUP approvals are purely policy-making decisions.
• Croell Redi-Mix, Inc. v. Pennington Cnty. Bd. of Comm'rs, 2017 S.D. 87
  Signaled the Court’s movement toward the prevailing view that CUP decisions are administrative/quasi-judicial; its footnote collected out-of-state authority aligning with that view.
• Mustang Run Wind Project, LLC v. Osage Cnty. Bd. of Adjustment, 2016 O.K. 113, Cnty. of Lancaster v. Mecklenburg Cnty., 434 S.E.2d 604 (N.C. 1993), Redelsperger v. City of Avondale, 87 P.3d 843 (Ariz. Ct. App. 2004), Arnel Dev. Co. v. City of Costa Mesa, 620 P.2d 565 (Cal. 1980) (en banc), Chioffi v. Winooski Zoning Bd., 556 A.2d 103 (Vt. 1989)
  These cases reinforced the mainstream doctrinal classification: variances and use permits (including CUPs/special exceptions) are adjudicative/quasi-judicial implementations of existing zoning policy, not legislative enactments suitable for voter referendum.

B. Legal Reasoning

1) The statutory hinge: “new policy” vs “execution of an existing plan”

The Court read SDCL 7-18A-15.1 as directing courts to evaluate the nature of the challenged action:

• Legislative decision: enacts permanent law or lays down a rule of conduct/course of policy for future guidance.
• Administrative decision: merely puts into execution a plan already adopted by the governing body or the Legislature.

On this statutory text, the Court rejected a simplified “discretion = legislative” test. Even discretionary choices can be administrative if they implement an existing framework rather than create new policy.

2) Ordinance #24-05 did not change CUP law; it clarified who applies it

Ordinance #24-05 left intact the County’s pre-existing choices: permitting CUPs within the zoning ordinance and the standards/criteria governing CUP determinations. The ordinance changed/clarified the decision-maker label to “Board of Adjustment,” consistent with state law and the County’s ability under SDCL 11-2-60 to have the commissioners “act as and perform all the duties and exercise the powers of the board of adjustment.”

Because it did not “lay down” new standards or a new course of zoning policy, the Court categorized it as administrative implementation—“put[ting] into execution a plan already adopted” within the meaning of SDCL 7-18A-15.1.

3) CUP decisions are quasi-judicial; referendum is structurally mismatched

The Court emphasized that CUP determinations are quasi-judicial: they apply existing ordinance criteria to a particular land-use application on a factual record, constrained by due process and evidentiary principles. Drawing from Miles v. Spink Cnty. Bd. of Adjustment, Holborn v. Deuel Cnty. Bd. of Adjustment, and Dep't of Game, Fish & Parks v. Troy Twp. (quoting Prentis v. Atl. Coast Line Co.), the Court framed CUP decisions as akin to what courts do—fact-bound adjudication—rather than lawmaking.

This matters for referendum: a referendum vote does not replicate required quasi-judicial procedural protections (notice, hearing, evidence-based decision-making), and it is not designed to review individualized adjudications.

4) Statutory channeling: certiorari is the CUP review mechanism—regardless of who decides

The Court treated the Legislature’s remedial scheme as decisive context. SDCL 11-2-61.1 requires challenges to CUP grants/denials to proceed by petition for a writ of certiorari and expressly applies “regardless of the form of the approving authority.” Relatedly, SDCL 7-8-30 directs that appeals of county commission CUP determinations are heard pursuant to SDCL 11-2-61.1. Together, these provisions undercut SCVA’s claim that Ordinance #24-05 “extinguished” a referendum remedy for CUP decisions by changing the decision-maker.

5) The Court’s treatment of Kirschenman’s “duality premise”

SCVA’s argument presupposed that some CUP decisions by a county commission could be “legislative” and referrable (as Kirschenman v. Hutchinson Cnty. Bd. of Comm'rs suggested), whereas board of adjustment decisions could not. The Court rejected that premise as “not supportable,” reasoning that CUP decisions do not “create a new rule” but apply existing criteria, and that “unfettered discretion” is inconsistent with modern statutory and due-process constraints (including SDCL 11-2-17.3 and the due process concerns cited from Schafer v. Deuel Cnty. Bd. of Comm'rs).

Practically, while the opinion does not expressly say “Kirschenman is overruled,” it sharply confines Kirschenman’s referendum logic in the CUP setting by re-centering the analysis on (a) quasi-judicial classification, (b) required standards and due process, and (c) the Legislature’s certiorari-only review channel.

C. Impact

• Referendum boundaries clarified: County ordinance amendments that merely align local zoning processes with state law—especially those clarifying the decision-maker without changing standards—are likely to be treated as administrative and not referable under SDCL 7-18A-15.1.
• CUP determinations positioned as categorically non-legislative for referendum purposes: By emphasizing the quasi-judicial character of CUP decisions and the certiorari review scheme “regardless of the form of the approving authority,” the decision reduces room to frame CUP approvals/denials as referrable “legislative decisions.”
• Litigation channeling: Parties challenging CUP decisions should expect courts to insist on SDCL 11-2-61.1 certiorari as the vehicle (with deference to ordinance interpretation), rather than initiative/referendum strategies.
• Local government drafting and clean-up ordinances: Counties may read the decision as support for non-referrable “compliance” amendments when the ordinance does not alter substantive land-use standards but corrects governance structure language to match statutory architecture (e.g., board of adjustment references).

4. Complex Concepts Simplified

5. Conclusion

Save Centennial Valley Association v. McGruder reframes the referendum inquiry under SDCL 7-18A-15.1 around the statutory distinction between creating new policy and executing an existing plan, rejecting “discretion alone” as a referendum trigger. It holds that an ordinance clarifying that CUP decisions will be made by the commissioners sitting as the board of adjustment is administrative and not referrable. More broadly, the Court’s reasoning treats CUP determinations as quasi-judicial implementations of existing standards—subject to due process and reviewable via certiorari under SDCL 11-2-61.1—thereby substantially limiting attempts to characterize CUP approvals/denials as legislative decisions suitable for referendum.