Breckweg v. Knochenmus

• Citation: 133 N.W.2d 860,81 S.D. 244
• Decision Date: 16 March 1965
• Docket Number: No. 10166,10166
• Parties: Ray T. BRECKWEG, Grace M. Breckweg, Robert H. Chambers, Shirley M. Chambers, and Phillips Petroleum Company, a Delaware Corporation, Plaintiffs and Respondents, v. Albert G. KNOCHENMUS, Curtis Eggers and Morris M. Oien, Individually and as Supervisors of Mapleton Township, Minnehaha County, South Dakota, Defendants and Appellants, and Mr. and Mrs. Richard C. May, Mr. and Mrs. Jim Dietz, Mr. and Mrs. Edward R. Sterner, Mr. and Mrs. Edward Behrends, Mr. and Mrs. Reuben Dahl, Mr. and Mrs. Gerald J. Underberg, Mr. and Mrs. Duane M. Miller, and Mr. and Mrs. Thomas Terry, Intervenors and Appellants.
• Court: Supreme Court of South Dakota

Page 860

133 N.W.2d 860

81 S.D. 244

Ray T. BRECKWEG, Grace M. Breckweg, Robert H. Chambers,

Shirley M. Chambers, and Phillips Petroleum

Company, a Delaware Corporation, Plaintiffs and Respondents, v. Albert G. KNOCHENMUS, Curtis Eggers and Morris M. Oien,

Individually and as Supervisors of Mapleton

Township, Minnehaha County, South

Dakota, Defendants and Appellants,

and

Mr. and Mrs. Richard C. May, Mr. and Mrs. Jim Dietz, Mr. and

Mrs. Edward R. Sterner, Mr. and Mrs. Edward Behrends, Mr.

and Mrs. Reuben Dahl, Mr. and Mrs. Gerald J. Underberg, Mr.

and Mrs. Duane M. Miller, and Mr. and Mrs. Thomas Terry,

Intervenors and Appellants.

No. 10166.

Supreme Court of South Dakota.

March 16, 1965.

John P. McQuillen, Sioux Falls, for Township Board, defendants and appellants.

Danforth, Danforth & Johnson, Sioux Falls, for intervenors and appellants.

Richard Hopewell, Davenport, Evans, Hurwitz & Smith, Sioux Falls, for plaintiffs and respondents.

HOMEYER, Judge.

Plaintiffs-petitioners seek a writ of mandamus to compel the supervisors of Mapleton Township to issue them a building permit for erection of a gasoline filling station. Their property is situated about three miles north of the corporate limits of the city of Sioux Falls on U.S.Highway 77 about 1/8th mile north of where such highway intersects Interstate Highway 90. From a judgment granting a peremptory writ, the township board and certain adjoining and neighboring property owners who were granted leave to intervene appeal.

The legislature in 1959 amended the statute which grants powers to townships and limited the amendment to those located within four miles of a city with a population of 50,000 or more. ¹ The amendment in subdivision (f) empowered such townships 'To prescribe the manner of constructing buildings and structures to be erected within the township, and to require that a building permit shall be first obtained from the board of township supervisors before the construction of any building or structure within the township.' By virtue of this authority the following ordinance was adopted: 'BE IT RESOLVED by the Board of Supervisors of Mapleton Township at its regular meeting held at the Mapleton Township Hall in Renner, Minnehaha County, South Dakota, on May 29, 1959, that no person shall erect, construct, enlarge, alter or repair any building or structure within Mapleton Township without first obtaining a building permit from the Clerk of Mapleton Township. A written application for such permit shall be made showing the use to be made of the building or structure and the details and the manner of construction, alteration or repair.'

Petitioners ² Breckweg and Chambers own contiguous lots on which residences have been built. On November 20, 1963, each granted Phillips Petroleum Company ³ a sixty-day option to purchase his separate property. Within time limits, Phillips exercised the options. As a condition precedent to a binding obligation, the option agreements required Breckweg and Chambers to obtain from '* * * local governmental authorities appropriate zoning and/or other necessary permits authorizing use of the property as a gasoline and oil service station and merchandise store, * * *'. On December 17, 1963, the optionors made written request of the township board for issuance of a building permit for a service station. On January 13, 1964, the chairman wrote optionors' counsel referring to the ordinance supra and asked for supplemental information on location of driveways, buildings, storage facilities and items of construction to be used. Additionally he wrote in the concluding paragraph: 'The informal opinion of the Board of Supervisors is that this is probably not a suitable area for the construction of a gasoline filling station, but we will reserve judgment on this until the plot plan showing details and manner of construction of the proposed gas station are submitted.' ⁴ This action followed a few days later.

Intervenors ⁵ own and occupy residential property in the area of the proposed location of the service station. Two of them live on adjacent lots. The average valuation of the residences is about $16,000. Water is obtained from sand point wells at a depth of from 24 feet to 28 feet. Sewage disposal is via septic tank with tile drain. Each residence has its own water supply and sewage disposal system. The construction plan contemplates moving petitioners' residences and location of the service station in place thereof.

At the hearing on the return of the alternative writ each of the supervisors testified that in his opinion a filling station in the proposed location would be detrimental to the health, safety and general welfare of the people residing in that area and gave such as the reason for denying the permit. ⁶ The only other witnesses werethree intervenors, i. e., Mr. & Mrs. Underberg, whose property abuts the rear lot line of the Breckweg property, and Reuben Dahl, whose back property line joins the back line of the Chambers property. Dahl is a building contractor who made a practice of buying lots in the area, building homes thereon, and then selling the completed residences. These witnesses expressed apprehension that a gas station in close proximity to their residences might affect their water supply, be dangerous to small children living in the neighborhood and because of aesthetic reasons might diminish property values in the area.

No claim is made of noncompliance with any building codes and regulations ⁷ or zoning ordinances and restrictions. Evidently the township has never adopted any building codes or regulations since none have been called to our attention, or enacted any zoning ordinances. ⁸ There is no contention that the area is within any rural zoning district as such may be designated by the county commissioners. ⁹

In the petition for a writ respondents herein contend (1) the township board acted illegally, capriciously, arbitrarily and unreasonably in denying the application for a building permit, and (2) the ordinance was void and unconstitutional because it did not provide standards and guidelines for the exercise of any discretion permitted to the board. In resistance, appellants assert that in the exercise of a sound discretion they were authorized to deny the building permit because the construction of such filling station would be detrimental to the health, safety, and general welfare, and would constitute a nuisance. They also attack use of mandamus as an available remedy in the present case.

We are satisfied mandamus was a proper remedy under the circumstances to compel the township board and its officers to issue the building permit. Although mandamus is generally employed to compel performance of duties ministerial in character, it can also be used where judgment and discretion are involved to compel a legal exercise thereof. SDC 1960 Supp. 37.4501; Tubbs v. Linn, 75 S.D. 566, 70 N.W.2d 372. The court is not warranted in directing the manner in which a legal discretion is to be exercised. Midwest Oil Co. v. Youngquist, 69 S.D. 461, 11 N.W.2d 662. However, where the refusal to perform a legal duty is arbitrary and captious, or is founded on an invalid ground, or one not warranted by law, the board is subject to direction by the court and mandamus will issue. Minneapolis-Honeywell Regulator Company v. Nadasdy, 247 Minn. 159, 76 N.W.2d 670; 9 McQuillin, Municipal Corporations, 3rd Ed., Sec. 26.221; 34 Am.Jur., Mandamus, Sec. 188.

A civil township is a political subdivision of state government and like counties and municipalities, its right to act is dependent upon a grant from the state. It has only such powers as are expressly delegated by the state or are necessarily implied from expressly delegated powers. South Dakota Employers Protective Ass'n v. Poage, 65 S.D. 198, 272 N.W. 806; Custer City v. Robinson, 79 S.D. 91, 108 N.W.2d 211. Under SDC 1960 Supp. 58.0201(9)(f), Mapleton Township was granted the right to 'prescribe the manner of constructing buildings and structures to be erected within the township, and to require that a building permit shall be first obtained * * * before the construction * * *.' We believe this power to prescribe would include the power to adopt appropriate building codes and related regulations and implies the right to regulate, restrain or prohibit the erection of buildings and structures which do not comply with standards and rules promulgated pursuant to the power granted. See 7 McQuillin, Municipal Corporations, Sec. 24.505 and cases cited in footnotes under this section.

It has been held that municipalities and townships have the power to regulate gasoline filling stations within their boundaries, and even to prohibit them in certain zones where the facts warrant it, but when this power is exercised a necessary concomitant is a valid enabling ordinance which classifies and then prescribes special regulations because of their peculiar characteristies. However, their restriction and regulation is always subject to the test of reasonableness. Socony Mobil Oil Co. v. Township of Ocean, 56 N.J.Super. 310, 153 A.2d 67; Fox v. City of Springfield, 10 Ill.2d 198, 139 N.E.2d 732; Stratford Aire Association v. Hibser, 26 Ill.App. 214, 167 N.E.2d 586; Vedovell v. City of Northlake, 22 Ill.2d 611, 177 N.E.2d 124. In each of these cases and others cited by appellants zoning or other regulatory ordinances had been passed which served as the basis for the restraint on free use of property.

Appellants recognize the absence of any violation or noncompliance with building regulations or zoning ordinances as a predicate for denial of the building permit. Nevertheless, they say SDC 27.21 makes the township board of supervisors a board of health, and in the exercise of a sound judgment and discretion they had the right to anticipate the erection of a filling station at this location would be detrimental to the health, safety, and general well-being of people...