Even v. City of Parker

1999 SD 72, 597 N.W.2d 670, 1999 S.D. LEXIS 92
CourtSouth Dakota Supreme Court
DecidedJune 16, 1999
DocketNone
StatusPublished
Cited by30 cases

This text of 1999 SD 72 (Even v. City of Parker) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Even v. City of Parker, 1999 SD 72, 597 N.W.2d 670, 1999 S.D. LEXIS 92 (S.D. 1999).

Opinions

GILBERTSON, J.

[¶ 1.] Donald Even (Even) brought a verified petition alleging illegality of a decision by the City of Parker Board of Adjustment (Board) pursuant to SDCL 11-4-25 and an application for a writ of certiorari. The trial court, First Judicial Circuit, Turner County, found the Board was estopped from enforcing a zoning ordinance on Even. The Board appeals and Even files notice of review. We affirm.

FACTS AND PROCEDURE

[¶ 2.] Even and his wife are owners of real property in the City of Parker, South Dakota that they purchased in 1996 upon their marriage. Even is a dairy farmer and his wife is a full-time student. In the summer of 1997, Evens decided to remove an old garage from their property considered by them to be in “poor” condition1 and build a new garage. Family finances dictated that it be a pole type construction [672]*672as that was considered the least expensive and most affordable option. Even was unaware he was required to apply for a conditional use permit to build a “pole type” garage. Apparently, prior to 1996 it was permissible to build pole type buildings in the City of Parker. In that year the City amended its Zoning Regulations to prohibit pole type buildings in residential areas unless a conditional use permit was obtained.

[¶ 3.] Even first orally visited with Mr. Kastner, the City Zoning Administrator, who informed him of various restrictions on the building of garages.2 The newly enacted prohibition against pole type garages was not mentioned. On September 22, 1997, Even filled out an application for a building permit. The application form, which was drafted on behalf of the City, did not ask whether the proposed building was to be of pole type construction. The application was given to the Zoning Administrator, who reviewed it and issued Even a city building permit for the construction of the garage without further discussion. The Zoning Administrator personally delivered the permit to the Even residence and left it in Even’s front door.

[¶ 4.] When he received the building permit, Even began buying materials for the garage and incurred approximately $4,470.00 in building material expenses. To save money he ordered a customized kit of materials from a supplier who had a business relationship with Even’s brother. However, since it was a customized kit, the supplier would not accept a return of the materials unless another customer ordered the exact same kit. The materials were delivered by the supplier to the Even residence. On September 26, 1997, the Zoning Administrator re-visited the Even property and told Even the proposed garage was of “pole type” construction and under the zoning ordinance he could not build the garage.

[¶ 5.] A family member later told the Evens they might be able to build the garage if they procured a conditional use permit. On October 6, 1997, Even completed another Building Permit Application for a conditional use permit. The City Planning and Zoning Board of Adjustment (Board) met to consider Even’s application on October 23, 1997. The Board voted to deny Even’s application. The Board never made any written findings as to Even’s second application. However, the Board failed to revoke the previously issued building permit.

[¶ 6.] Even filed the verified petition pursuant to SDCL 11-4-253 and for a writ of certiorari which commenced this action against the Board. His claims were heard by the trial court, which found the City was estopped from enforcing the provisions of the zoning ordinance. The City appeals raising the following issues:

1. Whether the trial court erred in es-topping the City of Parker from enforcing the zoning ordinance on Even.
2. Whether Even was required to exhaust administrative remedies prior [673]*673to commencing this action in circuit court.

Even filed notice of review raising the following issues:

3. Whether the inclusion in the zoning ordinance of a provision allowing buildings of pole construction as a use permitted with a conditional use permit is a legislative finding that the use is generally compatible with adjoining properties and other property in the zoning district.
4. Whether the trial court erred in its decision that the Board did not abuse its discretion in denying Even’s application for a conditional use permit because the building was not compatible with adjoining properties.
5. Whether the Board’s denial of Even’s application for a conditional use permit is an abuse of discretion because the Board based its decision on an incorrect legal standard.
6. Whether the Board’s failure to enter findings of fact and conclusions of law renders its decision an abuse of discretion and arbitrary and capricious as a matter of law.
7. Whether the zoning ordinance, which makes a building of pole construction a conditional use, is vague and overbroad and deprives Even of due process under the South Dakota and United States Constitutions.
8. Whether the City of Parker Zoning ordinance is ambiguous in its reference to making a budding of “pole construction” a conditional use in a residential district.

STANDARD OF REVIEW

[¶ 7.] We review a decision by the Parker Board of Adjustment, made pursuant to the provisions of SDCL 11-4-25 through 11 — 4—29, to determine whether the order of the Board is supported by substantiál evidence and is reasonable and not arbitrary. Schrank v. Pennington County Bd. of Commissioners, 1998 SD 108, ¶ 18, 584 N.W.2d 680, 683 (citing Graves v. Johnson, 75 S.D. 261, 266, 63 N.W.2d 341, 344 (1954)). We review it in the same manner as the circuit court, unaided by any presumption of the correctness of the circuit court’s determination. Hamerly v. City of Lennox, Bd. of Adj., 1998 SD 43, ¶10, 578 N.W.2d 566, 568 (citing Olson v. City of Deadwood, 480 N.W.2d 770, 774-75 (S.D.1992)).

[¶ 8.] As to the petition for writ of certiorari, our scope of review is:

Zoning ordinances are interpreted according to the rules of statutory construction and any rules of construction included in the ordinances themselves. Cordell v. Codington County, 526 N.W.2d 115, 117 (S.D.1994). See also 83 Am.Jur.2d Zoning and Planning § 698 (1992). The interpretation of an ordinance presents a question of law which we review de novo. See Matter of Estate of Gossman, 1996 SD 124, ¶ 6, 555 N.W.2d 102, 104 (citing Sioux Valley Hosp. Ass’n v. State, 519 N.W.2d 334, 335 (S.D.1994); King v. John Hancock Mut. Life Ins. Co., 500 N.W.2d 619, 621 (S.D.1993)).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Stockwell v. McCook County Board of Commissioners
2024 S.D. 2 (South Dakota Supreme Court, 2024)
Strizheus v. Kooistra
D. South Dakota, 2023
McLAEN v. WHITE TOWNSHIP
974 N.W.2d 714 (South Dakota Supreme Court, 2022)
First Dakota National Bank v. Gregg
2021 S.D. 53 (South Dakota Supreme Court, 2021)
City of Rapid City v. Big Sky
2018 SD 45 (South Dakota Supreme Court, 2018)
City of Rapid City v. Big Sky, LLC
2018 SD 45 (South Dakota Supreme Court, 2018)
Hoffman v. Van Wyk
2017 SD 48 (South Dakota Supreme Court, 2017)
Maryland Reclamation Associates, Inc. v. Harford County
994 A.2d 842 (Court of Appeals of Maryland, 2010)
HARDING COUNTY, SD v. Frithiof
575 F.3d 767 (Eighth Circuit, 2009)
City of Brookings v. Ramsay
2007 SD 130 (South Dakota Supreme Court, 2007)
Kay v. City of Rancho Palos Verdes
504 F.3d 803 (Ninth Circuit, 2007)
Kay v. Rancho Palos Verdes
Ninth Circuit, 2007
State v. Aaberg
2006 SD 58 (South Dakota Supreme Court, 2006)
Squires v. City of Saraland
960 So. 2d 651 (Court of Civil Appeals of Alabama, 2005)
Atkinson v. City of Pierre
2005 SD 114 (South Dakota Supreme Court, 2005)
City of Marion v. Rapp
2002 SD 146 (South Dakota Supreme Court, 2002)
Gluscic v. Avera St. Luke's
2002 SD 93 (South Dakota Supreme Court, 2002)
Faulk v. Faulk
2002 SD 51 (South Dakota Supreme Court, 2002)
In Re the Estate of Catron
2001 SD 57 (South Dakota Supreme Court, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
1999 SD 72, 597 N.W.2d 670, 1999 S.D. LEXIS 92, Counsel Stack Legal Research, https://law.counselstack.com/opinion/even-v-city-of-parker-sd-1999.