Decramer v. Dorale, McCook County Bd of Adjustment

2025 S.D. 5

• Court: South Dakota Supreme Court
• Decided: February 12, 2025
• Docket: 30652
• Status: Published

Opinion

#30652-r-PJD 2025 S.D. 5

IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA

****

GREG DECRAMER and PATRICIA DECRAMER, Petitioners and Appellants,

v.

ROD DORALE and MCCOOK COUNTY BOARD OF ADJUSTMENT, Respondents and Appellees.

APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT MCCOOK COUNTY, SOUTH DAKOTA

THE HONORABLE CHRIS S. GILES Judge

RONALD A. PARSONS, JR. of Johnson, Janklow & Abdallah, LLP Sioux Falls, South Dakota

PAMELA R. REITER ANTHONY P. SUTTON of Reiter Law Firm, LLC Sioux Falls, South Dakota Attorneys for petitioners and appellants.

CONSIDERED ON BRIEFS SEPTEMBER 30, 2024 OPINION FILED 02/12/25 ****

MICHAEL E. UNKE Salem, South Dakota Attorney for respondent and appellee Rod Dorale.

MIKE C. FINK McCook County State’s Attorney Bridgewater, South Dakota Attorneys for respondent and appellee McCook County Board of Adjustment. #30652

DEVANEY, Justice

[¶1.] The McCook County Board of Adjustment (Board) granted Rod Dorale

a variance after he built his house. Under the applicable county ordinance,

structures must be set back a minimum of nine feet from neighboring property

lines. Dorale built his house with a setback of seven feet three inches. Greg and

Patricia DeCramer, who own the property next to Dorale, appealed the Board’s

decision via a petition to the circuit court for a writ of certiorari. The circuit court

denied the petition. The DeCramers appeal, arguing that the Board exceeded its

authority by violating the governing statute and county ordinance when granting

the variance. We reverse.

Factual and Procedural Background

[¶2.] Greg and Patricia DeCramer own lot 22 in the Eagle Ridge Addition of

McCook County, a housing subdivision zoned in the Lake Residential District. Rod

Dorale owns the adjacent properties, lots 20 and 21. As specified in section 5.03 of

the 2014 Revised Zoning Regulations for McCook County, the Lake Residential

District requires a minimum setback of nine feet for side yards.

[¶3.] On June 29, 2020, Dorale submitted a building permit application to

the McCook County Planning and Zoning Office for the construction of a new house

with a three-stall garage on lots 20 and 21. The building and site plans reflected

that the third stall on the garage would be set back ten feet from the property line

Dorale shares with the DeCramer property. Dorale signed off on the provision in

the application stating that he “agree[d] to comply with all provisions of the McCook

County Zoning regulations, county ordinances and also with building plans and site

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plan submitted.” The building permit application was approved and Dorale

obtained a survey of his property at some point prior to beginning construction. The

construction of his home was completed in November 2020.

[¶4.] A dispute later arose between Dorale and the DeCramers, which

ultimately led to the matter at issue in this appeal. On April 25, 2023, Dorale,

president of the Eagle Ridge Addition Homeowner’s Association, sent the

DeCramers a letter on behalf of the Association, stating that they had violated a

provision in the Association’s restrictive covenants prohibiting garbage and trash on

a homeowner’s property. Sometime after they received this letter, the DeCramers

had their property surveyed and the survey showed that Dorale’s new construction

was only set back seven feet three inches from their property line. The DeCramers

subsequently filed a civil lawsuit against Dorale, alleging negligence and nuisance,

based on the fact that Dorale had built his home in violation of McCook County’s

setback requirement. The complaint included requests for damages and injunctive

relief.

[¶5.] Shortly before the DeCramers filed their lawsuit, Dorale submitted an

application to the Board seeking a variance for a seven-foot three-inch setback for

his already-built home. On his application, Dorale provided the following

explanation of the special conditions and circumstances as requested on the form:

“Covenants of Eagle Ridge Addition called out for minimum 5’ set back. House was

set [at] 7’-3”.”

[¶6.] On July 11, 2023, the Board held a public hearing on Dorale’s variance

request at which the County Zoning Administrator presented the information

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provided in Dorale’s application to the Board. According to the Board’s minutes,

Dorale’s attorney suggested that the Eagle Ridge Addition Covenants “supersede

County zoning regulations” and noted that the setback requirement in these

covenants is five feet. His attorney also claimed, in his remarks, that the County’s

nine-foot setback “is a guideline,” and he advised the Board that “Dorale did read

the setback info, old covenants were 9’, same as zoning regulations.” 1 In response,

the DeCramers’ attorney asked the Board to enforce its own nine-foot setback

regulation. He also informed the Board that there was a pending nuisance action

pertaining to this matter and urged the Board to “let [the] civil lawsuit process

proceed with making a determination.”

[¶7.] The Board, with one member abstaining, voted unanimously to grant

Dorale a variance. The DeCramers then appealed the Board’s decision by sending a

letter to the Zoning Administrator, dated July 25, 2023. 2 According to the

DeCramers, after this appeal was filed, the McCook County State’s Attorney

notified the parties’ counsel, the Auditor, and the Zoning Administrator, that the

process employed by the Board did not follow the requirements for granting a

1. The information quoted is from the Board minutes and does not necessarily reflect what Dorale’s attorney, or any of the others at the hearing, said verbatim.

2. This letter follows the appeal procedure in section 16.04 of the McCook County zoning regulations, which states: “A notice of appeal shall be filed with the Zoning Administrator, who shall transmit to the Board of Adjustment all information and records concerning the appeal within ten business days.” This provision allows for a public hearing at which the appellant seeking reconsideration of the Board’s initial decision appears before the Board. It further requires the Board to enter “[w]ritten findings certifying compliance with the specific rules governing the action[.]” -3- #30652

variance set forth in section 16.03 of the County’s zoning regulations (the

Ordinance) and, therefore, another hearing was required.

[¶8.] On August 21, 2023, the Zoning Administrator reviewed Dorale’s

application and completed a written recommendation form that lists the factors

identified in section 16.03 (A) through (F) that must be addressed by an individual

requesting a variance. 3 However, the only factor on which the Zoning

Administrator commented was subsection 16.03 (B), which refers to whether

“[l]iteral interpretation of the provisions of this ordinance would deprive the

applicant of rights commonly enjoyed by other properties in the same district under

the terms of this ordinance[.]” The administrator’s comment as to this provision

states, “recommendation to approve[.] Covenants on this property allow for 5’

setback[.]”

[¶9.] On August 22, 2023, the Board held a public hearing on the appeal.

Counsel for both parties appeared at this hearing and presented similar arguments

for and against the variance. There was some discussion amongst the Board

members regarding the Association’s covenants not complying with the County’s

zoning regulations. It does not appear, from the minutes, that the State’s Attorney

was present or offered any input to the Board. After a motion to follow the

recommendation by the Zoning Administrator, the Board once again approved the

variance, without making any written findings.

3. The factors in subsection 16.03 (A) through (F) of the Ordinance are very similar to the factors identified in section 16.03 (G)(2)(a) to (g), a subsection which requires the Board to make written findings certifying that such provisions have been met when granting a request for a variance. -4- #30652

[¶10.] On September 21, 2023, the DeCramers appealed the Board’s decision

to the circuit court via a petition for a writ of certiorari pursuant to SDCL 11-2-61.

On October 16, 2023, prior to any return being filed, the parties entered into a

stipulation acknowledging that the Board had failed to submit written findings as

required by the County’s zoning regulations and agreeing that the circuit court

could hold the DeCramers’ petition for a writ of certiorari in abeyance until the

Board entered such findings.

[¶11.] The Board then held a third hearing to consider Dorale’s variance

application on November 28, 2023. Both the DeCramers and Dorale submitted

proposed written findings to the Board, and the Zoning Administrator read her

recommendations to the Board at the hearing. The State’s Attorney appeared at

this hearing and advised the Board to “review points of discussion and provide

written findings” regarding the variance application. At the conclusion of the

hearing, the Board entered the following findings pursuant to subsection 16.03

(G)(2)(a)-(g), which requires the Board to make written findings certifying that the

provisions identified in the Ordinance have been met:

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Based on these findings, the Board voted to approve the variance and the

DeCramers subsequently filed an amended petition for writ of certiorari with the

circuit court. They asserted that the Board “neglected to do an act required by law”

by failing to apply the provisions of SDCL 11-2-53(2) and its own Ordinance.

[¶12.] The circuit court held a hearing on the DeCramers’ petition and denied

their request for a writ of certiorari in an oral ruling. In its ruling, the circuit court

began by concluding that the Ordinance is not ambiguous. The court then noted

that variances are usually requested prior to construction, and that “[i]t appears

from the facts that Mr. Dorale blatantly disregarded the building permit.” The

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court further noted that a survey had been conducted and Dorale “knew what he

was doing and he knew how he built it.” The court expressed its view that Dorale’s

claimed reliance on the five-foot setback in the restrictive covenants was “very

problematic in that his building permit said 10 feet, plain and clear on the face.”

The court acknowledged that the County’s more restrictive setback would apply,

and further noted that although the zoning regulations Dorale relied on required a

nine-foot setback, Dorale “went ahead and did what he wanted to do.”

[¶13.] However, the circuit court nevertheless determined that the Board

complied with the requirements for granting a variance in SDCL 11-2-53(2).

Specifically, the court noted that the Board had “determined in its findings that

allowing the variance would not be offensive to the public” and “that undue

hardship exists because Mr. Dorale would have to move the house[.]” The court

then explained its view on the limited nature of a review on a writ of certiorari,

stating, “It is not within the [c]ourt’s discretion to question the [Board] or to

examine the facts leading up to the request for the variance by the defendant.”

Referring to this Court’s precedent, the circuit court further noted that “[t]he

Board’s decision will be upheld unless it did some act forbidden by law or neglected

to do some act required by law[.]” The court then concluded the Board was “acting

within its authority in granting the variance” under the Ordinance.

[¶14.] The DeCramers appeal from the circuit court’s order denying the writ.

They maintain the Board exceeded the scope of its authority by violating SDCL 11-

2-53(2) and the Ordinance.

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Standard of Review

[¶15.] When reviewing a board’s decision via a writ of certiorari, we have

stated that “[w]e will not disturb the [board’s] decision . . . unless it did not have

jurisdiction, did not pursue ‘in a regular manner the authority conferred upon it[,]’

or ‘did some act forbidden by law or neglected to do some act required by law.’”

Stockwell v. McCook Cnty. Bd. of Comm’rs, 2024 S.D. 2, ¶ 15, 2 N.W.3d 236, 240

(quoting Ehlebracht v. Deuel Cnty. Plan. Comm’n, 2022 S.D. 18, ¶¶ 12–13, 972

N.W.2d 464, 470) (third alteration in original). “[C]ertiorari cannot be used to

examine evidence for the purpose of determining the correctness of a finding[.]”

Hines v. Bd. of Adjustment of Miller, 2004 S.D. 13, ¶ 10, 675 N.W.2d 231, 234

(citations omitted). Whether the Board’s decision violates a statutory directive or

the Ordinance at issue here “is a legal question we review de novo.” Stockwell, 2024

S.D. 2, ¶ 15, 2 N.W.3d at 240.

[¶16.] To the extent a review of whether the Board neglected to do some act

required by law involves interpretation of statutes or ordinances, we have noted

that “[z]oning ordinances are interpreted according to the rules of statutory

construction and any rules of construction included in the ordinances themselves.”

Id. ¶ 21 (quoting Hoffman v. Van Wyk, 2017 S.D. 48, ¶ 8, 900 N.W.2d 596, 598).

Statutory interpretation begins with an analysis of the statute’s text. Id. If the text

“is clear, certain and unambiguous, our only function is to declare the meaning of

the ordinance as expressed.” Id. (quoting City of Sioux Falls v. Strizheus, 2022 S.D.

81, ¶ 19, 984 N.W.2d 119, 124).

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Analysis and Decision

[¶17.] The DeCramers contend the Board unlawfully granted Dorale a

variance because it did not enter the requisite findings required by SDCL 11-2-

53(2). They also claim the Board failed to certify that the overlapping provisions

identified under subsection 16.03 (G)(2)(a)-(c) of the Ordinance had been met. As to

these claims, we note, at the outset, that the circuit court seemed to apply an overly

narrow interpretation of the parameters of the review of a board’s decision on a writ

of certiorari. While the court correctly observed that it could not review whether a

board’s decision or findings were correct, a court considering the merits of a petition

for a writ of certiorari can, and should, review whether a board’s specific findings, or

a lack thereof, make the grant of a variance unlawful. See Dunham v. Lake Cnty.

Comm’n, 2020 S.D. 23, ¶ 20, 943 N.W.2d 330, 335–36 (finding the board exceeded

its authority under SDCL 11-2-53(2) and its county ordinance when it failed to

“meaningfully address the special conditions required” and “made no

determination” that a variance was necessary “because of some ‘extraordinary and

exceptional’ situation on the property[.]”).

[¶18.] A board of adjustment’s authority to grant a variance is not without

limitations. In accordance with SDCL 11-2-53(2), a board of adjustment may:

Authorize upon appeal in specific cases a variance from the terms of the ordinance that is not contrary to the public interest, if, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship and so that the spirit of the ordinance is observed and substantial justice done . . . .

(Emphasis added.) For the Board to grant the variance, Dorale was thus required

to show that “‘special conditions’ exist under which ‘a literal enforcement’ of the

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ordinance would cause ‘unnecessary hardship,’ which would not impair the spirit of

the ordinance and substantial justice.” Hines, 2004 S.D. 13, ¶ 12, 675 N.W.2d at

234.

[¶19.] The DeCramers maintain that Dorale established neither special

conditions nor an unnecessary hardship. In regard to the “special conditions”

requirement, they argue the “Board’s approval of an after-the-fact variance was

forbidden by law under the circumstances because the Board found there were no

special conditions warranting the variance[.]” Dorale, on the other hand, contends

the Board found that special conditions existed. To support this contention, he

claims that “Dorale was unaware of the 9’ setback” and because of the lack of a

county zoning compliance officer, no one warned him about this setback

requirement.

[¶20.] Dorale’s claim is not supported by the existing record. Aside from the

fact that he agreed in his building permit “to comply with all provisions of the

McCook County zoning regulations, county ordinances and also with [his] building

plans and site plan[,]” the Board did not find that Dorale was unaware of the nine-

foot setback. Instead, it found that the “information presented was unclear as to

[Dorale’s] action.” Moreover, Dorale’s conclusory claim that the Board found the

existence of special conditions is also contrary to the Board’s actual finding as to the

similar requirement in subsection 16.03 (G)(2)(a) of the Ordinance. As to the

County’s requirement that “[e]xtraordinary conditions or circumstances exist which

are peculiar to the use or structure involved and are not applicable to other uses or

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structures in the same district,” the Board found, “nothing extraordinary in this

residential district.”

[¶21.] Although the language in subsection 16.03 (G)(2)(a) referring to

“extraordinary conditions” is not identical to the “special conditions” language in

SDCL 11-2-53(2), Dorale has not argued that there is a significant difference

between the two phrases. Notably, SDCL 11-2-53(2) refers to the “spirit of the

ordinance” being observed, and even if the language in the statute and Ordinance is

not synonymous, the Board did not find that any special conditions existed. Absent

such a finding, the Board violated SDCL 11-2-53(2) when granting the variance. In

addition, the Board’s finding that there was “nothing extraordinary in this

residential district” precluded it from granting the variance under the terms of the

Ordinance.

[¶22.] Because the Board acted illegally and in excess of its authority by

granting a variance that did not comply with either SDCL 11-2-53(2) or the

Ordinance, the circuit court should have reversed the decision of the Board and

vacated the grant of the variance. Given our resolution of this first issue, we need

not address the DeCramers’ further claims regarding the Board’s findings on

whether there was an unnecessary or undue hardship and whether any special

conditions or circumstances were the result of Dorale’s actions. We reverse the

circuit court’s decision and remand for the entry of an order vacating the variance

granted by the Board.

[¶23.] Reversed and remanded.

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[¶24.] JENSEN, Chief Justice, and KERN, SALTER, and MYREN, Justices,

concur.

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