City of Madison v. Clarke

• Decision Date: 13 February 1980
• Docket Number: No. 12643,12643
• Citation: 288 N.W.2d 312
• Parties: CITY OF MADISON, a Political Subdivision, State of South Dakota, Plaintiff and Respondent, v. Dewayne CLARKE and Pat Clarke, a/k/a Patricia R. Clarke, Defendants and Appellants.
• Court: South Dakota Supreme Court

Page 312

288 N.W.2d 312

CITY OF MADISON, a Political Subdivision, State of South Dakota, Plaintiff and Respondent, v. Dewayne CLARKE and Pat Clarke, a/k/a Patricia R. Clarke Defendants and Appellants.

No. 12643.

Supreme Court of South Dakota.

Argued Oct. 15, 1979.

Decided Feb. 13, 1980.

Robert R. Spencer of Ericsson, Spencer & Ericsson, Madison, for plaintiff and respondent.

J. B. Lammers of Lammers, Lammers, Kleibacker & Casey, Madison, for defendants and appellants.

DUNN, Justice.

Defendants appeal from a judgment entered by the Fourth Judicial Circuit Court of South Dakota in favor of plaintiff City of Madison (City) upholding a determination by the City's Board of Adjustment that defendants were not entitled to a zoning variance. We affirm.

Defendants applied for and received a building permit for a house. They did not apply for a permit to build a roofed patio or "carport." The roof of the carport is three feet, four inches from the south boundary line of the property. The house is in a zoning area with a "side-yard" restriction that requires a space of six and one-half feet from a structure to the property line. The house next door, built long before any building restrictions, was almost on the lot line. Thus the carport was built approximately three and one-half feet from the house next door.

The City notified defendants that their structure did not comply with the zoning requirements. Defendants submitted a variance request, and the Board of Adjustment denied it. The Board also denied defendants' request to reconsider the variance request. It is conceded that the City Commission was acting as the Board of Adjustment at this time. It is also conceded that the Zoning and Planning Commission did not act upon the variance request and that no notice was given to defendants or the public as to when the City Commission would be acting in its capacity as the Board of Adjustment.

Defendants refused to remove the roof over the patio. The City brought suit against defendants for violation of its zoning ordinance and prayed for a mandatory injunction. The City does not object to the concrete slab beneath the roof.

Our initial conclusion is that defendants' argument that the Board of Adjustment has been delegated legislative power without proper standards is unfounded. SDCL 11-4-17(3) allows boards of adjustment to authorize variances "as will not be contrary to the public interest, where, 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 shall be observed and substantial justice done." Any action taken contrary to this state statute would be void and unenforceable. Because the proper standard is contained within our state statutes, it does not matter whether or not the zoning ordinance of the City specifically incorporated this standard. An identical statute was held to provide a sufficient standard in Deardorf v. Board of Adjustment of Plan. & Zon. Com'n, 254 Iowa 380, 118 N.W.2d 78 (1962).

Although it is conceded that no notice was given to defendants as required by SDCL 11-4-21, it is also conceded that Dewayne Clarke appeared before the Board of Adjustment when defendants' request was reconsidered. Defendants therefore availed themselves of the opportunity to fully state their case before the Board. The purpose of the notice statute is merely to afford an opportunity to be heard, and defendants' arguments were indeed presented. The general public has not been prejudiced by lack of notice as the variance was denied. To remand this matter simply because the technical notice requirements were not initially satisfied would merely allow defendants to once again address the Board of Adjustment in the same manner as was previously done. Defendants could expect no better hearing through remand than they received when their request was reconsidered.

Defendants next contend that SDCL 11-4-12 requires the Planning and Zoning Commission to make a preliminary recommendation, and because no such recommendation was made, they claim error. This is not a correct reading of our statutes. SDCL 11-4-11 commands that a planning and zoning commission make recommendations to the governing body regarding "the boundaries of the zoning districts and appropriate regulations to be enforced therein." SDCL 11-4-12 prohibits the governing body from acting before the recommendation is received. It is clear, however, that such recommendation is only required when the zoning laws are being enacted or modified. Action by a board of adjustment in granting or denying variance requests has no effect upon the law itself. A variance does not change or modify a zoning law; only the Governing body may do so. Our statutes therefore do not contemplate a recommendation from a planning and zoning commission regarding variance requests.

Defendants further contend that the actions of the Board of Adjustment were arbitrary in that other more severe ordinance violations have been left undisturbed and other variances have been granted in cases where the structures are more offensive than is theirs. Defendants have not shown, however, that the variances granted in the past were not due to "special conditions" as contemplated by SDCL 11-4-17(3). Furthermore, the record is completely void of any proof that certain existing structures violate the zoning laws without proper variances. Dewayne Clarke merely stated at trial that he was "pretty sure" that certain structures did not comply. He has the burden of proof, and it has not been met.

Finally, defendants have not proved that they would suffer "unnecessary hardship" if this variance request is denied. Dewayne Clarke testified that it would cost $500 to remove the roof and that it would diminish the value of the structure by $8,000. Economic disadvantages, however, do not constitute "unnecessary hardship." The hardship must be substantial and of compelling force, not merely for reasons of convenience or profit. Deardorf v. Board of Adjustment of Plan. & Zon. Com'n, 254 Iowa 380, 118 N.W.2d 78, 82 (1962). This is particularly true in this instance where defendants had a building permit for a house but failed to apply for a building permit for the carport. They proceeded to build the carport not only in violation of the zoning ordinance but without applying for a building permit. Had they applied for a permit, this matter could have been settled before they suffered any cost or inconvenience. It was their choice to build a carport in violation of the ordinance and without a permit, apparently on the mistaken belief that once the carport was in place their variance request would be granted. Defendants cannot now complain of the costs involved.

The judgment is affirmed.

WOLLMAN, C. J., and MORGAN, J., and GERKEN, Circuit Judge, concur.

HENDERSON, Justice, dissents.

GERKEN, Circuit Judge, sitting for FOSHEIM, J., disqualified.

HENDERSON, Justice (dissenting).

Respondent's action sounds in equitable relief for injunction. Appellants interposed an answer and counterclaim. The counterclaim of the appellants has not been reached for trial as the learned trial court ordered that the complaint of the respondent was an equitable action and had to be tried to the court first. Thus, the counterclaim was not reached.

The circuit court found in favor of the respondent and against the appellants and entered findings of fact and conclusions of law. Pursuant thereto, judgment was entered which essentially adjudicated that: (1) appellants had constructed a roofed patio or carport without first obtaining a variance contrary to the zoning ordinance of the respondent; (2) appellants had illegally and unlawfully constructed the carport or roofed patio; (3) appellants were permanently restrained and enjoined from maintaining the carport or roofed patio; and (4) appellants had to remove the carport or roofed patio or so much thereof as was necessary to comply with the zoning ordinance of respondent. Appellants timely served their assignments of error and perfected their appeal.

The building inspector and city engineer had been on the premises while appellants were constructing the carport or roofed patio. After it was completed, respondent filed a written objection to appellants' building activity, claiming that it was in violation of the city zoning ordinance. In response to respondent's written objection, appellants submitted a variance request in writing to the city auditor which was denied. Appellants made a subsequent request for reconsideration of the variance which was likewise denied. One might denominate this case as a "forty-inch lawsuit." The respondent city alleges that appellant taxpayers violated the side yard requirement: that structures must be at minimum distance of six and one-half feet from an adjacent lot line. The carport or roofed patio is three feet and four inches from the boundary line. The carport or roofed patio is attached to appellants' dwelling. Curiously enough, had the carport or roofed patio been detached from the dwelling by even scant inches, appellants would have been in compliance. Section 17.2300, Subsection 9 provides that an accessory structure may be constructed within two feet of an inside lot line when the entire structure is within forty feet of the rear property line. Respondent's actions violate an old doctrine, the doctrine of common sense. For some incongruous reason, respondent makes no claim that the slab of cement under the patio or...