City of Colton v. Corbly, No. 13571

• Court: Supreme Court of South Dakota
• Writing for the Court: WOLLMAN
• Citation: 323 N.W.2d 138
• Decision Date: 27 April 1982
• Docket Number: No. 13571
• Parties: CITY OF COLTON, A Municipal Corporation, Plaintiff and Appellee, v. Shirley CORBLY, Defendant and Appellant. . Considered on Briefs

Page 138

323 N.W.2d 138 CITY OF COLTON, A Municipal Corporation, Plaintiff and
Appellee,
v.
Shirley CORBLY, Defendant and Appellant. No. 13571. Supreme Court of South Dakota. Considered on Briefs April 27, 1982.
Decided Aug. 18, 1982.

Timothy J. McGreevy of Dana, Golden, Moore & Rasmussen, Sioux Falls, for plaintiff and appellee.

Shirley Corbly, pro se.

WOLLMAN, Chief Justice.

This is an appeal from a judgment imposing a permanent mandatory injunction requiring appellant to remove an addition to certain real property located in the city of Colton (appellee). ^* We affirm.

Appellant, owner of the real estate in question, built an addition on her property without first applying for and receiving a building permit. Appellee's zoning ordinance, Ordinance 104, requires a building permit as a precondition to construction of such an addition.

Appellant attacks the ordinance as being invalid under the United States Constitution and South Dakota Constitution. Appellant contends that this ordinance violates the fourth, fifth, eighth, ninth, tenth, thirteenth, and fourteenth amendments to the United States Constitution. Appellant also contends that this ordinance violates article VI and section 10 of article I of the United States Constitution as well as sections 21

Page 139

and 23 of article III and sections 1, 13, and 23 of article VI of the South Dakota Constitution.

Legislative decisions are presumed to be valid, and zoning decisions will be upheld if the issue of constitutionality is fairly debatable. Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926); State Theatre Co. v. Smith, 276 N.W.2d 259 (S.D.1979). One assailing the validity of a zoning ordinance has the burden of overcoming this presumption of validity and must show that the ordinance is unreasonable and arbitrary. State Theatre Co. v. Smith, supra; Tillo v. City of Sioux Falls, 82 S.D. 411, 147 N.W.2d 128 (1966). Invalidity must be demonstrated by something more than abstract considerations. Tillo v. City of Sioux Falls, supra.

Appellant has not alleged any facts that suggest that the application of Ordinance 104 is invalid as it applies to her. Consequently, we find no basis for appellant's claim that Ordinance 104 is unconstitutional, either on its face or as it applies to her situation.

Appellant next contends that it was impossible for her to pay the fee required to obtain a permit inasmuch as the fee is denominated in dollars represented by federal...