Hines v. BD. OF ADJUSTMENT OF CITY, 22730.

• Citation: 675 N.W.2d 231,2004 SD 13
• Decision Date: 28 January 2004
• Docket Number: No. 22730.,22730.
• Parties: Rex HINES, Petitioner and Appellant, v. BOARD OF ADJUSTMENT OF the CITY OF MILLER, (the Common Council acting thereas), Respondent and Appellee.
• Court: Supreme Court of South Dakota

675 N.W.2d 231

2004 SD 13

Rex HINES, Petitioner and Appellant, v. BOARD OF ADJUSTMENT OF the CITY OF MILLER, (the Common Council acting thereas), Respondent and Appellee.

No. 22730.

Supreme Court of South Dakota.

Considered on Briefs November 17, 2003.

Decided January 28, 2004.

Eric D. Slaathaug, Pierre, South Dakota, Attorney for petitioner and appellant.

Gregory G. Rediger, Miller, South Dakota, Attorney for respondent and appellee.

KONENKAMP, Justice.

[¶ 1.] Rex Hines requested a variance for one of his lots from a city ordinance restricting the placement of mobile homes. Following a hearing, the Board of Adjustment for the City of Miller denied the request. Hines filed a Petition for a Writ of Certiorari with the circuit court under SDCL 11-4-26. The circuit court ruled that the board was within its authority and jurisdiction when it denied the variance. Because the record of the hearing before the board clearly indicates that the board merely acceded to neighbor objections and failed to follow the city ordinance in considering the variance request, we reverse.

Background

[¶ 2.] Rex Hines owns four lots on the southwest outskirts of Miller. On the property to the north lies a solitary outbuilding, to the south, an overgrown lot with abandoned cars, and to the east, a sheep pasture. Two houses sit on adjoining lots to the west, one owned by Elma Thorson and the other by Don Joy. Other houses are located in the vicinity, one directly north of the Joy house and another directly south of the Thorson house.

[¶ 3.] Elaine Lingscheit, Rex's mother, deeded the lots to Rex in May 2001. The lots were once part of a larger property that originally included the lots along with the house and lots owned by Thorson. The Hines family owned this house and lots until the late 1960s or early 1970s. The family then divided the property, selling the front lots to Thorson. In the transfer, Lingscheit reserved easements for utilities and access across the Thorson property.

[¶ 4.] One or more mobile homes occupied the lots during the 1970s. Testimony suggested that the homes were most likely gone by 1982 when the City of Miller's new zoning ordinance came into effect. However, evidence showed that two mobile homes occupied the lots as late as 1976. In any event, the mobile homes were no longer located on the lots by 1984. In 1997, Lingscheit went to the city's zoning board to request a variance to place a mobile home on the lot. After a hearing, the board denied the request.

[¶ 5.] On July 2, 2001, Brian Hines and Attorney Michelle Hines requested a building permit to have a mobile home moved onto the lot. After some initial confusion on how to proceed, the board determined that a variance would be required. Eventually, a hearing on the variance was scheduled for August 6, 2001.

[¶ 6.] The board arranged the hearing so that the opponents of the request would testify first, followed by the proponents. Local residents with property adjoining or near the Hines property had put together a list of reasons why the variance should not be granted. The list was presented to the board during the hearing by Don Joy, the neighbors' spokesperson. After Joy's presentation, several board members questioned Joy about the significance of the list of concerns. Joy admitted to the board that while the list contained concerns such as sewer hookups and snow removal, the neighbors would have no such concerns with sewer hookups and snow removal if a house were placed on the lot instead of a mobile home.

[¶ 7.] Following Joy, attorney Michelle Hines spoke. First, she noted that because the neighbors would not have the same concerns if the issue were whether a house would be placed on the lot, the neighbors concerns were not legitimate. Second, she fully explained the analysis required of the board by city ordinance and state statute. Third, she attempted to show how the request met the required variance test. However, the board continually reverted to the opinions of the neighbors that they did not want a mobile home in the lot. In response to these inquiries, Michelle Hines responded that lacking any legitimate concerns from the neighbors and lacking any response from other residents of the city, the board should find that placing a mobile home on the lot would not be against the public interest.

[¶ 8.] The board unanimously denied the variance. The transcript of the hearing reveals unequivocally that the board members decided to deny the request solely because the neighbors did not want a mobile home on the lot. As various board members commented: "[T]he real issue is: do the residence [sic] of that area desire a trailer not to be there?" "There are other areas within the community that trailers will be allowed only with a variance. In other words, with the approval of the people in that area...." "And I think that, that is why most of this information needs to be not even taken into consideration, about the water, sewer and that sort of thing." When the board unanimously voted to deny the variance request, the following colloquy occurred:

Michelle Hines: Excuse me, may I ask what the rational is for tonight for denial of the variance?

Tom McGough: If I understood the question that was addressed to the opponents of the variance, it was the placement of a mobile home on those lots.

Brian Hines: So it's because of the neighbors then?

Tom McGough: It is because of their wishes of a mobile home not being placed on those lots.

Thus, the board reasoned that because the neighbors opposed a mobile home on the lot, the request was contrary to the public interest.

[¶ 9.] Hines sought a Writ of Certiorari with the circuit court under SDCL 11-4-26. The circuit court concluded that the board of adjustment did not err in denying the variance. On appeal, Hines asserts the following issues: (1) "Miller's board of adjustment exceeded its jurisdiction when it replaced the statutory variance test with its own variance test." (2) "Does § 17.28.020(F) grant relief in the form of a special exception, variance, or hybrid." (3) "Miller's board was grossly negligent in how it managed the Hines request." Because we conclude that the board exceeded its authority in not fulfilling its obligation under the city ordinance in considering the variance request, we reverse and remand on Issue 1 and decline to reach Issues 2 and 3.¹

Analysis and Decision

[¶ 10.] We interpret zoning ordinances in accord with the rules of statutory construction supplemented by any rules of construction within the ordinances themselves. Cole v. Bd. of Adjustment of City of Huron, 1999 SD 54, ¶ 4, 592 N.W.2d 175, 176 (citing Cordell v. Codington County, 526 N.W.2d 115, 117 (S.D. 1994)). Our consideration of a matter presented on certiorari is limited to whether the board of adjustment had jurisdiction over the matter and whether it pursued in a regular manner the authority conferred upon it. Id. (quoting Peters v. Spearfish ETJ Planning Comm'n, 1997 SD 105, ¶¶ 5-6, 567 N.W.2d 880, 883). A board's actions will be sustained unless it "`did some act forbidden by law or neglected to do some act required by law.'" Id. "`[C]ertiorari cannot be used to examine evidence for the purpose of determining the correctness of a finding....'" Id. ¶ 11 (citing Willard v. Civil Serv. Bd. of Sioux Falls, 75 S.D. 297, 298, 63 N.W.2d 801, 801 (1954).

[¶ 11.] Hines contends that the board exceeded its authority by substituting the variance test prescribed in the city ordinance with a test that consisted of nothing more than allowing the opinions of neighbors to control whether a variance would be permitted. MCO § 17.16.040(C) provides that the board of adjustment shall have the power:

To authorize upon appeal in specific cases such variance from terms of this title as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of this title will result in unnecessary hardship and so that the spirit of the ordinance shall be observed and substantial justice done.

[¶ 12.] SDCL 11-2-53(2) presents similar requirements for the issuance of a variance. It states that a board of adjustment may:

Authorize upon appeal in specific cases such variance from terms of the ordinance as will not be 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[.]

Both the ordinance and the statute require first that a grant of a variance must not be "contrary to the public interest." Second, an applicant for a variance must show that "special conditions" exist under which "a literal enforcement" of the ordinance would cause "unnecessary hardship," which would not impair the spirit of the ordinance and substantial justice. Importantly, for a board to grant a variance, both the public interest prong and the special conditions prong must be met.

[¶ 13.] There is no question that the Board of Adjustment was bound to follow this test. Logically then, its failure to follow the test mandates the conclusion that the board exceeded the scope of authority granted to it by MCO § 17.16.040(C). The Board's failure to follow the prescribed test was manifested in its apparent lack of comprehension of the obligation to decide what was "contrary to the public interest." In denying the variance, the Board simply relinquished its decision to a vote of the neighbors.

[¶ 14.] The Board argues that its decision was "[a]s a result" of a list of concerns presented by the neighbors. This is not reflected in the transcript of the August 6, 2001 hearing. It is true that initially the neighbors presented a list of concerns to the board. However, the board quickly disregarded the list of concerns as irrelevant. Don Joy, the neighbors' spokesperson, stated, "I don't want a mobile home, I don't object to a house...