City of Brookings v. Ramsay

• Decision Date: 19 December 2007
• Docket Number: No. 24497.,24497.
• Citation: 2007 SD 130,743 N.W.2d 433
• Parties: CITY OF BROOKINGS, South Dakota, Plaintiff and Appellee, v. Donna RAMSAY, dba DHR Design Services, Ltd., Defendant and Appellant.
• Court: South Dakota Supreme Court

743 N.W.2d 433

2007 SD 130

CITY OF BROOKINGS, South Dakota, Plaintiff and Appellee, v. Donna RAMSAY, dba DHR Design Services, Ltd., Defendant and Appellant.

No. 24497.

Supreme Court of South Dakota.

Considered on Briefs on October 1, 2007.

Decided December 19, 2007.

Steven J. Britzman, Brookings, South Dakota, Attorney for plaintiff and appellee.

Michael S. McKnight, Charles A. Larson of Boyce, Greenfield, Pashby & Welk, L.L.P., Attorneys for defendant Sioux Falls, South Dakota and appellant.

MEIERHENRY, Justice.

[¶ 1.] Donna Ramsay (Ramsay), d/b/a DHR Design Services, Ltd. was convicted of three municipal ordinance violations. She was convicted of unauthorized construction of a structure on a public sidewalk, failure to obtain a building permit and violation of a stop work order. Ramsay filed a motion for a new trial, which the circuit court denied. Ramsay appeals. We affirm.

FACTS

[¶ 2.] The charges against Ramsay stem from remodeling and renovations she was making to a historic building in downtown Brookings, SD. The building is referred to as the Old City Hall and Old Fire Hall. Ramsay began the interior remodeling in 2000. Later, as part of the construction, Ramsay built a deck on one of the building's several entrances. The deck was elevated approximately forty inches above the public sidewalk and extended over the sidewalk 1.5 feet. All of the charges against Ramsay involve the non-compliance of the deck with the City building code and her failure to discontinue construction of the deck after the issuance of a stop work order.

[¶ 3.] In 2000, Ramsay obtained a building permit from the City of Brookings. The City claimed the 2000 permit was valid for interior remodeling only. Ramsay testified that she believed the permit also included plans for the outside deck. After working on the interior renovations to the building, Ramsay began construction of the deck in September, 2004. She contacted the City of Brookings Building Services Administrator, Gregory Miller, to inspect the deck structure prior to completion. Miller observed that the deck was protruding into the public sidewalk area. Protrusions into public right-of-ways are prohibited by the City code. Miller returned to his office and reviewed Ramsay's 2000 building permit. He concluded that the 2000 permit for interior remodeling did not cover the non-attached external deck. He advised Ramsay that she needed to apply for a separate building permit for the deck. Ramsay went to City Hall on September 15, 2004, to complete the paperwork. At that time, the City Engineer told Ramsay that a new permit would not be approved if her building plan showed that the deck would protrude onto the sidewalk. Ramsay's only recourse was to request a variance from the City Council.

[¶ 4.] Ramsay brought her petition for a variance before the Brookings City Council on October 12, 2004. She was instructed by the Council to return on October 26, 2004. The City Council neither granted nor denied Ramsay a variance. The City Council passed a motion "to instruct the city manager and staff to define approval criteria in regards to encroachments in the public right-of-way." The City approved Resolution No. 68-04 setting forth nine criteria for building in the public right-of-way on November 23, 2004.

[¶ 5.] Ramsay was unable to meet the newly adopted criteria despite efforts to do so. Thus, she did not obtain a permit or variance for the deck. Nevertheless, she continued to build the deck without a permit. The City Engineer sent several letters to Ramsay informing her of the necessity of obtaining a permit. Ramsay acknowledged that she received the letters but failed to respond to them. In June, 2005, the City issued a stop work order. Ramsay continued construction of the deck after the issuance of the stop work order. The City later filed charges against Ramsay alleging that she had violated City Ordinances by 1) unauthorized construction of a structure on a public sidewalk, 2) construction without a building permit, and 3) construction in violation of a stop work order. Ramsay argued that the City should be estopped from bringing charges against her. She claims that an employee from the City zoning and building department had worked with her in the earlier stages of the building project and that he had not told her of the necessity of getting a separate permit for the deck. The circuit court found Ramsay guilty of the charges. Ramsay appeals. She claims the circuit court erred on two grounds: (1) in convicting her when there was insufficient evidence to warrant the convictions, and (2) in denying her Motion for a New Trial.

Insufficiency of Evidence — Estoppel

[¶ 6.] Ramsay argues the court erred in convicting her because there was insufficient evidence to warrant the convictions. In reviewing "the sufficiency of the evidence on appeal in a criminal case, the issue before this Court is whether there is evidence in the record which, if believed by the [trier of fact], is sufficient to sustain a finding of guilt beyond a reasonable doubt." State v. Bordeaux, 2006 SD 12, ¶ 6, 710 N.W.2d 169, 172 (citation omitted).

[¶ 7.] Ramsay's insufficiency of the evidence claim relies on her estoppel defense. She claims that the City was estopped from denying that the 2000 building permit covered the construction of the deck; thus, the prosecution failed to meet the elements of the charges against her. Ramsay claims that the previous City Building Services Administrator, Ray Froelich, worked with her and advised her on the building renovations over the years and had not told her she needed a separate permit for the deck or that the deck did not comply with the building code. Froelich was not called as a witness by either the City or Ramsay. Ramsay also claimed that the configuration and placement of the deck was necessary to meet requirements of the American Disabilities Act, Fire and Life Safety Codes and the South Dakota State Historical Preservation Office. Ramsay argues Froelich's actions induced her to alter her position and to proceed with the construction of the deck.

[¶ 8.] We have recognized the doctrine of equitable estoppel against municipalities in our prior cases. See Even v. City of Parker, 1999 SD 72, ¶ 9, 597 N.W.2d 670, 674; City of Rapid City v. Hoogterp, 85 S.D. 176, 179, 179 N.W.2d 15, 16 (1970); Tubbs v. Custer City, 52 S.D. 458, 218 N.W. 599, 601 (1928); City of Deadwood v. Hursh, 30 S.D. 450, 138 N.W. 1122, 1123 (1912); Missouri River Tel. Co. v. City of Mitchell, 22 S.D. 191, 116 N.W. 67, 68 (1908). We explained the estoppel doctrine as follows:

When considering the application of equitable estoppel, each case is dependent on application of the doctrine to the specific facts. When applying the doctrine to municipal corporations in matters pertaining to their governmental functions . . . . [t]he basis of its application . . . is . . . municipal officers . . . have taken some affirmative action influencing another which renders it inequitable for the municipality to assert a different set of facts. More than municipal acquiescence . . . should be required to give rise to an estoppel. The conduct must have induced the other party to alter his position or do that which he would not otherwise have done to his prejudice.

Even, 1999 SD 72, ¶ 12, 597 N.W.2d at 674 (internal citations omitted).

[¶ 9.] We also said we only apply estoppel against public entities in "exceptional circumstances to `prevent manifest injustice.'" Id. at ¶ 11 (citations omitted). "The burden of establishing that such exceptional circumstances are present is on the party seeking the protection of the doctrine." Hoogterp, 85 S.D. at 180, 179 N.W.2d at 17. "[E]ach case is dependent on application of the doctrine to the specific facts." Even, 1999 SD 72, ¶ 12, 597 N.W.2d at 674. Our "scope of review as to whether an equitable estoppel exists is fully reviewable as a mixed question of law and fact." Id. ¶ 9.

[¶ 10.] Ramsay argues that estoppel applies because her situation was similar to the facts in Even v. City of Parker. Id. ¶¶ 2-6. In Even, we held that the City of Parker was estopped from denying the existence of a building permit for a pole-type garage granted to Mr. Even. In that case, Even applied for a building permit. He specified that he had purchased materials for a pole-type garage unit. The City granted the request. Four days later, the City discovered that it granted the permit in error because the pole-type garage units were not permitted by City ordinance. The City revoked Mr. Even's permit and denied his reapplication for a new permit. We affirmed the circuit court's finding that the City was estopped from denying Mr. Even's permit. We determined in Even that the City did not have a duty to tell Even that his structure would not comply with the zoning ordinance, but did have a duty not to create the impression of compliance and then withdraw approval after Even had started to build the facility. Id. ¶ 14. We said,

The City did not have a duty to call to Even's attention the fact he could not build a garage of pole type construction under the terms of the zoning ordinance. Nevertheless, the City may not, through its agents, affirmatively create an objectively reasonable impression in an applicant that he has fully complied with all zoning requirements and then proceed to withdraw permission after the applicant has taken steps towards construction which result in a substantial detriment to the applicant.

Id. ¶ 14 (citations omitted).

[¶ 11.] Ramsay argued that Froelich worked with her for four years without notifying her that the 2000 building permit did not allow construction of the deck. She further claimed that Froehlich was actively involved in the project and consulted with her regularly. She claimed Froelich required her to make costly changes and additions to the building in order to comply with ADA and Fire and Life Safety Codes. Froelich was not called...