City of Sioux Falls v. Cleveland

• Decision Date: 30 April 1955
• Docket Number: No. 9445,9445
• Citation: 75 S.D. 548,70 N.W.2d 62
• Parties: CITY OF SIOUX FALLS, a municipal corporation, Plaintiff and Appellant, v. Mary CLEVELAND, Glen Gulberg and Jack Palmer, Defendants and Respondents.
• Court: South Dakota Supreme Court

Page 62

70 N.W.2d 62

75 S.D. 548

CITY OF SIOUX FALLS, a municipal corporation, Plaintiff and Appellant, v. Mary CLEVELAND, Glen Gulberg and Jack Palmer, Defendants and Respondents.

No. 9445.

Supreme Court of South Dakota.

April 30, 1955.

Robert S. Golden, John E. Burke, Thomas J. Barron, Sioux Falls, for plaintiff-appellant.

Hitchcock, Nichol & Lassegard, Mitchell, Francis G. Dunn, Sioux Falls, for defendants-respondents.

SMITH, Judge.

This action was brought by the city of Sioux Falls under SDC 45.2614 to restrain the maintenance and use of two trailer houses on a described lot on the theory that such use is proscribed by its zoning ordinance. The trial court predicated its judgment dismissing the complaint of the city on two grounds. First, it concluded the use revealed by the evidence is not prohibited by the zoning ordinance because of an existing and continuing use of the premises for that purpose prior to and since the effective date of that ordinance. Second, interpreting the zoning ordinance as forcing those who, through choice or necessity, make their homes in trailer houses to live in trailer or tourist camps located in the commercial and industrial districts of the city, the court concluded that, as applied to the defendants Gulberg, Palmer and their families, its provisions were arbitrary, discriminatory and unreasonable, and hence in contravention of the due process and equal protection provisions of the constitutions of the United States and South Dakota. By its appeal the city seeks a review of these legal conclusions of the trial court.

In 1943 Sioux Falls enacted a comprehensive zoning ordinance pursuant to SDC 45.26. Mary Cleveland, defendant above named, owns two lots located in what was designated as a Class R residence district by the provisions of that ordinance. Her home is located on one of her lots. Continuously since 1949 she has permitted others to occupy her adjoining lot with trailer houses for a monthly rental. In 1950 Sioux Falls adopted its present revised comprehensive zoning ordinance which placed Mrs. Cleveland's lots in a single family residence district. As interpreted by the city this ordinance excludes defendants' trailers from such a single family residence district. In August 1950 when the present ordinance became effective, and continuously since that time Mrs. Cleveland has had two trailer house tenants on her adjoining lot. The defendant Gulberg and his family, consisting of a wife and three children, have lived in their modern trailer home since 1951. The defendant Palmer, his wife and daughter have lived there in a trailer house since 1953. The city notified the defendants to discontinue the use in July 1954. They failed and refused to comply, and this action was instituted.

In McQuillin on Municipal Corporations, 3d Ed., Vol. 8, Sec. 25.181, it is written:

'Generally speaking, a nonconforming use existing at the time a zoning ordinance goes into effect cannot be prohibited or restricted by statute or ordinance, where it is a lowful business or use of property and is not a public nuisance or harmful in any way to the public health, safety, morals or welfare. In other words, a zoning ordinance is invalid and unreasonable where it attempts to exclude and prohibit existing and established uses or businesses that are not nuisances. If when a zoning ordinance was adopted, premises were used for a nonconforming use, one is within his rights in continuing that use. Accordingly, zoning regulations cannot be made retroactive and neither can prior nonconforming uses be removed nor existing conditions be affected thereby.'

See Des Jardin v. Town of Greenfield, 262 Wis. 43, 53 N.W.2d 784.

The foregoing statement of principle is conceded by the city as elementary, and it does not contend that the defendants are maintaining a nuisance. Its position is that the described use of the lot in question was not a legal use of the premises when the 1950 ordinance became effective because it was not permitted by the 1943 ordinance. Therefore, in reviewing the first conclusion of law of the trial court, we must determine whether the maintenance of trailer homes on Mrs. Cleveland's adjoining lot was permissible under the 1943 ordinance.

The 1943 ordinance provides in substance that no building or premises shall be used for any purpose other than that permitted by its provisions in the use district in which the building or premises is located.

It divides the city into five classes of use districts as follows:

1. R--residential districts;

2. M-R--multiple residence districts;

3. C--commercial districts;

4. M--manufacturing districts; and

5. S-M--special manufacturing districts.

Other of its provisions limit the uses permitted in portions of the residential districts through subclassification into R-1, R-2 and R-3 uses. Mrs. Cleveland's property is located in what the ordinance classified as R-1 territory. The applicable use provision reads 'R-1 use shall include every use as a dwelling house, double house, or duplex house.'

The ordinance defines a 'dwelling house' as 'a building used or intended to be used as a home or residence in which all living rooms are accessible, without using an entrance vestibule, stairway, or hallway that is designed as a common entrance vestibule, stairway, or hallway for more than one family, and in which the use and management of all sleeping quarters, all appliances for cooking, ventilating, heating, or lighting other than a public or community service, are under one control.'

It also defines a 'building' as 'a structure entirely separated from any other structure by space or by a wall or walls in which there are no communicating doors or windows or similar openings.'

After careful consideration of these provisions the trial court observed: 'Placing a fair construction on the zoning law of 1943, the court is of the opinion that a trailer home, like the trailers of the defendants Gullberg and Palmer, is a single family dwelling, and as such is permitted on Mrs. Cleveland's lot under the 1943 ordinance.'

Our function in placing an interpretation on this ordinance is to discover and declare the intention of the legislative body by which it was enacted. Sejnoha v. Buchanan, 71 S.D. 220, 23 N.W.2d 142, and 62 C.J.S., Municipal Corporations Sec. 442, p. 841.

Read in a literal sense the words employed by the legislative body of the city in the 1943 ordinance comprehend the use of a trailer as a dwelling house use. In common usage the word 'structure' describ...