Atkinson v. City of Pierre, 23387.

Citation706 N.W.2d 791,2005 SD 114
Decision Date16 November 2005
Docket NumberNo. 23387.,23387.
PartiesJudith A. ATKINSON, Plaintiff and Appellant, v. CITY OF PIERRE, a municipality, S. Ellwein, Inc., d/b/a Tour Ice, Inc., Stephen C. Ellwein, d/b/a Tour Ice, Defendants and Appellees.
CourtSupreme Court of South Dakota

Judith A. Atkinson, Pierre, South Dakota, Pro se appellant.

John L. Brown, Margo D. Northrup of Riter, Mayer, Wattier & Brown, Pierre, South Dakota, Attorneys for appellee City of Pierre.

Brett Koenecke of May, Adam, Gerdes & Thompson, Pierre, South Dakota, Attorneys for appellee S. Ellwein, Inc. d/b/a Tour Ice, Inc., Stephen C. Ellwein, d/b/a Tour Ice.


[¶ 1.] In this mandamus action on alleged nuisance and zoning ordinance violations, we affirm the circuit court's judgment denying relief.


[¶ 2.] Defendant Tour Ice began its retail business in 1973. Consisting of a mobile home and garage, it was first located at 420 South Henry Street, Pierre, South Dakota, one block west of its current site at 425 South Central Avenue. The business moved to the latter address in 1991, when its new ice plant was completed. Since its inception, it has operated for thirty-two years in a zone classified as the central business district. Now, at the rate of 100,000 pounds a day, it produces, packages, and sells cube and block ice to retail establishments. Refrigerated trucks deliver its ice products within a 140-mile radius. In 1992, Stephen Ellwein, Inc., purchased the business.

[¶ 3.] Plaintiff Judith A. Atkinson lives on the second floor of a twelve-unit apartment building at 420 South Central Avenue, in the same business district. She has resided there since December 1996. Her apartment has three windows facing the Tour Ice facilities across the street. She prefers to keep all her windows open throughout the year, including the winter months. When the weather is cold, the temperature in her apartment is still hotter than she prefers, and opening her windows is her only solution. Besides enjoying the fresh air for its own sake, she does not feel that she should have to close her windows merely to reduce the noise coming from Tour Ice.

[¶ 4.] Atkinson finds the noise intolerable, nonetheless. According to her, "the general sound level of the compressor and fans running are equal to a vacuum cleaner or a freight train running through [her] bedroom." Tour Ice begins its business day early in the morning when its delivery trucks start up, load ice, and depart for the day's destinations. This surge of noise wakes Atkinson up, but she also objects to the constant, twenty-four-hour a day noise coming from the compressors, cooling fans, cooling towers, and ice augers. Some of the noises are disturbing because they are irregular, like the compressor that kicks on and off every ten to twelve minutes. Although Tour Ice attempted to remedy, or at least muffle, its various machine noises, Atkinson insists that the noise has only increased over time because of expansion. Using a sound meter she purchased over the Internet, Atkinson measured the noise level in her bedroom at seventy to seventy-five decibels when the compressor and fans are operating. More noise occurs when trucks parked outside the facility run their cooling units all night.

[¶ 5.] The classification of the current central business district was adopted in 1970 through the Pierre City Ordinances. The purpose of the 1970 ordinance was to provide for the widest range of retail and service establishments in the area. In 1999, however, the city adopted a more detailed statement of purpose for the central business district, narrowing the range of permitted uses.1 The apartment building Atkinson lives in was permitted in the district as a conditional use.

[¶ 6.] Since Ellwein's purchase, Tour Ice has not changed the nature of its business, although it has expanded its infrastructure. In 1993, the city granted Ellwein a building permit for an addition. In 1997, Ellwein purchased lots adjacent to the existing building, and, at a cost of $100,000, a new metal building was attached to the existing structure. At that time, the city again issued a building permit, allowing Ellwein to add on to the building. Improvements to the site included the installation of additional cooling fans, a refrigerator and compressor unit, and two large ice making machines. Along with its expansion, the company's activities have created an increased level of noise. Under the 1999 zoning ordinance amendments, however, Tour Ice was considered a permitted use because it was a longstanding business in the area. Accordingly, the company was not required to apply to the city for non-conforming use status by obtaining a variance for either its use or its building.

[¶ 7.] After its second building addition in 1997, Atkinson complained directly to Tour Ice's management. Then she delivered a petition to the owner signed by eight neighbors. In response, the company's attorney sent Atkinson a letter stating that the business conforms to the city's zoning ordinances. Subsequently, the city issued its own letter, explaining that the company was operating as a preexisting business within the zoning district. Atkinson protested to the Pierre City Council, but to no avail.

[¶ 8.] Atkinson brought suit against Tour Ice alleging that its business activities constitute a nuisance and that it violates city zoning laws. She sought to prohibit the business "from operating a manufacturing plant, a storage depot, and a wholesale business[.]" She also asked for an injunction against noise during non-business hours. Her suit against the city sought a writ of mandamus to make the city enforce its ordinances against Tour Ice. In trial, the company's owner, Stephen Ellwein, conceded, "Just so ... everybody understands what we are talking about, we manufacture ice. I mean, that's a given." Following a court trial, the circuit court found in favor of Tour Ice and the city, ruling that the business was a permitted preexisting use because it predated the 1999 ordinance and was in compliance with the 1970 zoning ordinance. Atkinson now appeals, raising the following issues for our review: (1) whether the circuit court's determination that Tour Ice's activities did not constitute a nuisance was palpably unreasonable; (2) whether the zoning ordinances were properly interpreted; (3) and whether the circuit court abused its discretion in denying her requested writ of mandamus.

Standard of Review

[¶ 9.] Because cities have the power to declare nuisances, their decisions should be upheld unless they are "`palpably unreasonable.'" Union County v. Hoffman, 512 N.W.2d 168, 170 (S.D.1994) (quoting Town of Colton v. South Dakota Cent. Land Co., 25 S.D. 309, 312-13, 126 N.W.2d 507, 508 (1910)); SDCL 9-29-13. We will not set aside a trial court's findings of fact unless they are clearly erroneous. Hoffman, 512 N.W.2d at 170. "`A finding is "clearly erroneous" when after reviewing all of the evidence, we are left with a definite and firm conviction that a mistake was made.'" Id. (citation omitted).

[¶ 10.] "We interpret zoning laws according to the rules of statutory construction and any rules of construction included in the enactments themselves." City of Marion v. Rapp, 2002 SD 146, ¶ 5, 655 N.W.2d 88, 90 (citing Cole v. Bd. of Adjustment of Huron, 2000 SD 119, ¶ 7, 616 N.W.2d 483, 485; Cordell v. Codington County, 526 N.W.2d 115, 117 (S.D.1994)). "The interpretation of an ordinance presents a question of law reviewable de novo." Id. (referencing Even v. City of Parker, 1999 SD 72, ¶ 8, 597 N.W.2d 670, 673). We review the grant or denial of a writ of mandamus for abuse of discretion. Lang v. Western Providers Physician Org., Inc., 2004 SD 107, ¶ 7, 688 N.W.2d 403, 406 (citing Black Hills Cent. R.R. Co. v. City of Hill City, 2003 SD 152, ¶ 9, 674 N.W.2d 31, 34).

Analysis and Decision
A. Nuisance

[¶ 11.] Atkinson argues that the "inaction by the City of Pierre towards the noise created by Tour Ice [is] palpably unreasonable." She maintains that the business should be declared a nuisance. Its operation, Atkinson asserts, unreasonably violates, invades, and interferes with her private use and enjoyment of her leasehold interest in her apartment.

[¶ 12.] "[A] claim for nuisance may be brought under statutory or common law nuisance theories." Collins v. Barker, 2003 SD 100, ¶ 16, 668 N.W.2d 548, 553. Nuisance is defined in SDCL 21-10-1:

A nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission either:

(1) Annoys, injures, or endangers the comfort, repose, health, or safety of others;

(2) Offends decency;

(3) Unlawfully interferes with, obstructs, or tends to obstruct, or renders dangerous for passage, any lake or navigable river, bay, stream, canal, or basin, or any public park, square, street, or highway;

(4) In any way renders other persons insecure in life, or in the use of property.

In SDCL 21-10-3, the Legislature differentiates between public and private nuisances: "A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon the individuals may be unequal. Every other nuisance is private." Available remedies against nuisances are: "(1) A civil action; (2) Abatement; and (3) In cases of public nuisance only, the additional remedy of indictment or information as prescribed by statute and rules relating thereto." SDCL 21-10-5.

[¶ 13.] The RESTATEMENT SECOND OF TORTS sets forth the common law elements required to establish a private nuisance cause of action, which this Court recognized in Kuper v. Lincoln-Union Electric Company, 1996 SD 145, ¶ 49, 557 N.W.2d 748, 761. See Collins, 2003 SD 100, ¶ 17, 668 N.W.2d at 554; RESTATEMENT (SECOND) OF TORTS §§ 822, 824-25 (1979). Under the RESTATEMENT, the...

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