Cole v. BOARD OF ADJ. OF CITY OF HURON

• Decision Date: 30 August 2000
• Docket Number: No. 21210.,21210.
• Citation: 2000 SD 119,616 N.W.2d 483
• Parties: Chris W. COLE, Petitioner and Appellee, v. BOARD OF ADJUSTMENT OF the CITY OF HURON (the City commission acting thereas), Defendant, and Casey's General Stores, Inc., Intervenor and Appellant.
• Court: South Dakota Supreme Court

616 N.W.2d 483

2000 SD 119

Chris W. COLE, Petitioner and Appellee, v. BOARD OF ADJUSTMENT OF the CITY OF HURON (the City commission acting thereas), Defendant, and Casey's General Stores, Inc., Intervenor and Appellant.

No. 21210.

Supreme Court of South Dakota.

Considered on Briefs April 24, 2000.

Reassigned July 11, 2000.

Decided August 30, 2000.

Todd D. Wilkinson and Gary W. Schumacher, Wilkinson & Wilkinson, DeSmet, South Dakota, Attorneys for petitioner and appellee.

Rodney Freeman, Jr. and Jeff Burns, Churchill, Manolis, Freeman, Kludt & Shelton, Huron, South Dakota, Attorneys for intervenor and appellant.

GILBERTSON, Justice (on reassignment).

[¶ 1.] The Huron Board of Adjustment (Board) granted a variance to Casey's General Stores, Inc, Floyd Peterson and Anthony Stahl (Casey's). Chris W. Cole, an adjoining property owner, was granted a writ of certiorari by the circuit court. The circuit court reversed and Casey's appeals. We reverse.

FACTS AND PROCEDURE

[¶ 2.] This is the second appeal for these parties. The basic facts underlying this appeal are recited in Cole v. Bd. of Adj., City of Huron, 1999 SD 54, 592 N.W.2d 175. The facts necessary for resolution of this appeal follow.

[¶ 3.] On November 25, 1997, Casey's applied for a variance for three lots on a corner of a busy highway in Huron. Two of the lots were vacant and owned by Peterson.¹ The third lot, with a house situated thereon, was owned by Stahl. In the application, Casey's requested permission to construct a gas station and convenience store on the properties.

[¶ 4.] The variance request was met with opposition and a public hearing was held on December 15, 1997. On January 12, 1998, the Board granted the variance to Casey's. On January 14, 1998, Cole filed for a writ of certiorari and appealed the Board's decision to circuit court.

[¶ 5.] The circuit court reversed the Board's decision finding "[t]he action of the Board granting Casey's a variance was not done in compliance with the City's zoning ordinances." Casey's appealed and we held that the circuit court failed to use the proper standard of review. The case was reversed and remanded. See Cole, 1999 SD 54,

592 N.W.2d 175.

[¶ 6.] On remand, the circuit court again reversed the Board's decision. It concluded that the granting of the variance was "illegal and in excess of [the Board's] jurisdiction" because it "failed to make any finding `that there exists special conditions which constitute an unreasonable deprivation of use.'" The circuit court concluded that the "granting of the variance was merely a grant of privilege, which is clearly prohibited by the City's Zoning Ordinances."

[¶ 7.] Casey's appeals, raising the following issue:

Whether the circuit court exceeded its jurisdiction in reviewing the Board's decision de novo.

STANDARD OF REVIEW

Zoning ordinances are interpreted according to the rules of statutory construction and any rules of construction included in the ordinances themselves. The interpretation of an ordinance presents a question of law which we review de novo. When interpreting an ordinance, we must assume that the legislative body meant what the ordinance says and give its words and phrases plain meaning and effect.

Because this matter was presented to the trial court on certiorari, our scope of review is limited to the questions of whether the inferior courts, officers, boards, and tribunals had jurisdiction and whether they have regularly pursued the authority conferred upon them. `When such courts, officers, boards, or tribunals have jurisdiction over the subject matter and of the party, their action will be sustained unless in their proceedings they did some act forbidden by law or neglected to do some act required by law.'

Cole, 1999 SD 54, ¶ 4, 592 N.W.2d at 176 (quoting Peters v. Spearfish ETJ Planning Comm'n, 1997 SD 105, ¶¶ 5-6, 567 N.W.2d 880, 883 (internal citations omitted)) (emphasis in original).

ANALYSIS AND DECISION

[¶ 8.] Casey's argues that the circuit court erred in examining the merits of the Board's decision to grant the variance, instead of restricting its review to whether or not the Board acted in excess of its jurisdiction. Thus, Casey's contends that the circuit court, "in its findings of fact and conclusions of law has usurped the authority and discretion of the Board ... by analyzing and replacing the Board's findings [with its] own."

[¶ 9.] Pursuant to SDCL 21-31-1,² the only question presented on certiorari "is whether the lower tribunal exceeded its jurisdiction." Cole I, 1999 SD 54, ¶ 10, 592 N.W.2d at 177. See also Hamerly v. City of Lennox Bd. of Adj., 1998 SD 43, ¶ 14, 578 N.W.2d 566, 569

(stating that "the circuit court should ... [limit] its judgment to a reversal of the Board's final decision as illegal and in excess of its jurisdiction."); Willard v. Civil Service Board of Sioux Falls, 75 S.D. 297, 298, 63 N.W.2d 801, 801 (1954) (noting that review of a circuit court's proceedings on certiorari extends only to a determination of whether the board acted without jurisdiction or exceeded its jurisdiction); Kirby v. Circuit Court, McCook County, 10 S.D. 38, 40-1, 71 N.W. 140, 141 (1897) (stating "the only questions to be considered in this court [on a writ of certiorari] are whether the court, upon the record before it, exceeded its jurisdiction, or whether that court has failed to regularly pursue the authority of such court.").

[¶ 10.] According to Huron City Ordinance 23.04.028, a variance applicant must prove by a preponderance of the evidence that the variance is not contrary to the public interest, and that if the variance is not granted, there exists special conditions which constitute an unwarranted, or unreasonable hardship, which "constitutes an unreasonable deprivation of use as distinguished from the mere grant of a privilege."

[¶ 11.] Instead of reviewing whether the Board exceeded its jurisdiction in granting the variance, the circuit court tried the case on the merits, by analyzing Huron City Ordinance 23.04.028³ and concluding that there was no evidence supporting the Board's finding of a special condition to justify the variance. The circuit court went as far to state in its opinion that the Board had "merely grant[ed] Casey's a privilege," instead of determining the existence of an unwarranted or unreasonable hardship.

[¶ 12.] This Court stated in Cole I:

It is quite clear from the Findings of Fact and Conclusions of Law and the incorporated memorandum opinion, the trial court did not utilize the correct standard of review for a writ of certiorari. The trial court reviewed the record de novo, taking into consideration the status of the property and drawing the conclusion that there was no evidence supporting the Board's finding of a special condition to justify the variance. We have said, "certiorari cannot be used to examine evidence for the purpose of determining the correctness of a finding...." Willard, 75 S.D. at 298, 63 N.W.2d at 801 (emphasis added).

1999 SD 54, ¶ 11, 592 N.W.2d at 177. Similarly, here, the circuit court reviewed the Board's record de novo, finding in its memorandum opinion that "[n]ot one of the Board of Adjustment's findings supports a conclusion of law that Casey's has met it[s] burden of proof to prove by a preponderance of evidence that the second prong of the City of Huron's test for granting Casey's a variance has been met...."

[¶ 13.] The circuit court's judgment in this case stated eight findings of fact and eight conclusions of law, and reversed the Board's decision based upon such findings and conclusions. After an examination of the findings of fact and conclusions of law entered by the circuit court, we reach but one conclusion—that "the [circuit] court in effect tried the petition de novo in that it made its own determinations upon the merits of the petition for a variance, thereby substituting its discretion for that of the Board." See Board of Zoning App. v. American Fletcher Nat. Bank, 139 Ind. App. 9, 205 N.E.2d 322, 324 (1965)

.

[¶ 14.] In City of Madison v. Clarke, 288 N.W.2d 312 (S.D.1980) we applied the three part test contained in SDCL 11-4-17(3) to decide this type of an issue. A variance will be granted where it:

[1] will not be contrary to the public interest, [2] where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship and [3] so that the spirit of the ordinance shall be observed and substantial justice done.

Id. at 313. The circuit court's memorandum opinion incorporated into its findings conceded criteria [1] in favor of the Board as it noted, "[a] limited review of the transcript of the proceedings below show there was evidence submitted which would support a findings [sic] to the effect that this variance would not be against the public interest." As far as criteria [2] the circuit court conceded a claim of hardship can be made as the property has been vacant for many years and was lost for taxes to the county.⁴ Beyond that, when it was offered by the county for sale to the public, Peterson was the sole bidder.

[¶ 15.] While the Court tried to seize on the isolated word "may" cause unnecessary hardship, the fact is that while this property was zoned residential, it was of so little value that the previous private owner in effect donated it to the public in lieu of retaining ownership and paying taxes thereon. These facts certainly provide the needed evidentiary support to justify the Board's actions under the limited scope of review for certiorari concerning criteria [2]. Finally as to criteria [3], the City made a finding which is supported by the evidence and not overturned by the circuit court:

That North Highway 37 is that part of the City of Huron affected by the variance application is currently a state highway and presently subject to extensive commercial traffic and the granting of the said variance should not substantially increase noise,

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