Daily v. City of Sioux Falls, #25698, #25715-a-GAS

CourtSouth Dakota Supreme Court
Writing for the CourtSEVERSON
PartiesDANIEL DAILY, Plaintiff and Appellee, v. CITY OF SIOUX FALLS, Defendant and Appellant.
Docket Number#25698, #25715-a-GAS
Decision Date24 August 2011

2011 S.D. 48

DANIEL DAILY, Plaintiff and Appellee,
v.
CITY OF SIOUX FALLS, Defendant and Appellant.

#25698, #25715-a-GAS

SUPREME COURT OF THE STATE OF SOUTH DAKOTA

ARGUED APRIL 26, 2011
Dated: August 24, 2011


APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA

HONORABLE KATHLEEN K. CALDWELL
Judge

RONALD A. PARSONS, Jr. of Johnson, Heidepriem & Abdallah, LLP Sioux Falls, South Dakota and CHARLES L. DOROTHY Sioux Falls, South Dakota Attorneys for plaintiff and appellee.

MICHAEL A. HENDERSON WILLIAM C. GARRY of Cadwell, Sanford, Deibert & Garry, LLP Sioux Falls, South Dakota Attorneys for defendant and appellant.

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SEVERSON, Justice

[¶1.] Over a period of two years, the City of Sioux Falls issued Daniel Daily four citations for a concrete extension to his driveway. Daily appealed each of the citations, but a hearing was held only on the final two citations he received. The hearing examiner upheld the final two citations. Daily then initiated this declaratory judgment action against the City. After a four-day trial, the trial court concluded that the City's administrative appeals process, both as written and as applied, as well as the enforcement of its zoning ordinances, violated Daily's constitutional rights to procedural due process and equal protection. We affirm.

Background

[¶2.] In summer of 2004, Daily hired a contractor to construct a concrete extension to the east side of his driveway. The contractor had laid concrete extensions to the driveways of various homes in Daily's neighborhood and informed Daily that a permit was not required. The completed extension spanned approximately seven feet from the edge of the existing driveway and ran the length of the driveway. The extension also ran up to a fire hydrant in the right-of-way. The extension allowed Daily, who has a serious heart condition, to use a snow-blower to clear snow away from the hydrant.

[¶3.] In April of 2006, Brad Hartmann, a City code enforcement officer, came to Daily's home. Hartmann asked Daily what he planned to do about the notice-of-ordinance violation he received regarding the concrete extension to his driveway. When Daily stated that he did not receive the notice, Hartmann maintained that he posted the warning on Daily's door. He advised Daily that the

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concrete extension violated the City's zoning ordinances that prohibit concrete from being poured in the front setback and right-of-way. When Daily explained that many of his neighbors had constructed concrete extensions to their driveways, Hartmann advised Daily to seek a variance from the City.

[¶4.] In May of 2006, Daily applied for a variance for the concrete extension to his driveway. After a hearing in June of 2006, the City Board of Adjustment denied Daily's application. The Board acknowledged that many of Daily's neighbors had constructed concrete extensions to their driveways, but it expressed concern about Daily's concrete extension because it was constructed within feet of a fire hydrant. The Board noted that a vehicle parked on Daily's concrete extension could easily back into the hydrant. Daily appealed the Board's decision, alleging selective enforcement of the City's zoning ordinances. After a hearing on his appeal in July of 2006, the hearing examiner upheld the Board's decision. Daily did not appeal the hearing examiner's decision.

[¶5.] On September 7, 2006, Daily received citation 1313, the first citation for the concrete extension to his driveway.1 The citation assessed Daily a fine of $100. In the section entitled "Violation Details," it stated, "Concrete poured in the required front setback and right-of-way." After "Code Sections," it stated,

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"15.49.060, 15.55.010, and 15.55.040."2 Daily appealed the citation, alleging selective enforcement of the City's zoning ordinances. On September 26, 2006, Daily appeared for a hearing on the citation. The hearing did not take place because the hearing examiner was unable to attend. Instead, Daily met with Hartmann and Shawn Tornow, an assistant city attorney, regarding the citation. Tornow advised Daily that the hearing would be rescheduled.

[¶6.] On September 27, 2006, the day after the cancelled hearing on citation 1313, Hartmann issued citation 1379.3 This second citation also assessed Daily a $100 fine. In the section entitled "Violation Details," it stated, "Right-of-way construction without a permit from City Engineering." It cited Municipal Code

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section 35½-4.4 Daily appealed this second citation, alleging selective enforcement of the City's municipal code. Because the hearing on citation 1313 had not yet been rescheduled, Daily also requested a hearing on that citation. Daily received a notice scheduling a hearing on both citations for October 23, 2006.

[¶7.] The parties dispute whether the October hearing on citations 1313 and 1379 took place. At the court trial in the declaratory judgment action, Daily offered his personal calendar and detailed testimony about the hearing. He testified that after Daily questioned Hartmann regarding the citations, Tornow stopped the hearing and asked him to step out of the room. When Daily entered the room several minutes later, Tornow told him that he would receive additional citations if he did not remove the concrete extension to his driveway. Daily did not receive a decision regarding his appeals of the citations. In contrast, the City, through the testimony of Hartmann, a paralegal for the city attorney's office, and a City director

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who served on the decision panel, contended that Daily did not appear for the hearing. The City ordinarily records its administrative hearings, but no audio recording for this hearing has been found. The outside cover of the City's official file for the citations states, "No Show, No Tape," but it is not clear whether this note refers to the October hearing or the September hearing for which the hearing examiner was not available.

[¶8.] The City did not contact Daily again regarding the concrete extension to his driveway until April of 2008, when he received citations 2545 and 2546 in the mail. Citation 2545 cites the same zoning ordinances as citation 1313, and citation 2546 cites the same municipal code section as citation 1379. Daily appealed citations 2545 and 2546, alleging selective enforcement and double jeopardy. After receiving a notice scheduling a hearing on both citations, Daily retained an attorney.

[¶9.] A hearing on citations 2545 and 2546 took place on April 29, 2008. The City Attorney's office hired James Robbennolt, a Sioux Falls attorney, to serve as the hearing examiner.5 Before the hearing, Robbennolt informed Daily that he bore

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the burden of proving that the City incorrectly issued the citations. Tornow informed Daily's attorney that the City's administrative appeals ordinance provides that the technical rules of evidence do not apply but that irrelevant or immaterial evidence may be excluded. During the hearing, Tornow repeatedly objected to the introduction of evidence on grounds other than relevance, and Robbennolt sustained several of his objections. The City did not hire a court reporter but recorded the hearing instead. On May 2, 2008, Robbennolt issued findings of fact and conclusions of law upholding citations 2545 and 2546.

[¶10.] In May of 2008, Daily initiated this declaratory judgment action against the City. A four-day trial was held over a period of several months. After the trial, the parties submitted proposed findings of fact and conclusions of law. The trial court ultimately concluded that the City's administrative appeals process, both as written and as applied, as well as the enforcement of its zoning ordinances violated Daily's constitutional rights to procedural due process and equal protection. The City appeals.6

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Standard of Review

[¶11.] Whether the City's administrative appeals process violated Daily's procedural due process rights is a constitutional question that this Court reviews de novo. State v. Holway, 2002 S.D. 50, ¶ 9, 644 N.W.2d 624, 627 (citing Blackwell, 2001 S.D. 127, ¶ 7, 635 N.W.2d at 584). "Under the de novo standard of review, we give no deference to the [trial] court's conclusions of law." In re Guardianship of S.M.N, T.D.N. & T.L.N., 2010 S.D. 31, ¶ 10, 781 N.W.2d 213, 218 (citing Sherburn v. Patterson Farms, Inc., 1999 S.D. 47, ¶ 4, 593 N.W.2d 414, 416). But legislative enactments, including municipal ordinances, are "presumed reasonable, valid, and constitutional." Blackwell, 2001 S.D. 127, ¶ 9, 635 N.W.2d at 584 (quoting Fortier v. City of Spearfish, 433 N.W.2d 228, 230-31 (S.D. 1988)).

Analysis and Decision

[¶12.] The City operates under a home rule charter. The South Dakota Constitution describes "home rule" municipalities:

A chartered governmental unit may exercise any legislative power or perform any function not denied by its charter, the Constitution, or the general laws of the state. The charter may provide for any form of executive, legislative and administrative structure which shall be of superior authority to statute,

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provided that the legislative body so
...

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