Dunham v. Lake Cnty. Comm'n
| Decision Date | 29 April 2020 |
| Docket Number | #28842 |
| Citation | 943 N.W.2d 330 |
| Parties | Karen DUNHAM, Petitioner and Appellant, v. LAKE COUNTY COMMISSION, Lake County Commission Sitting as the Lake County Board of Adjustment, Respondent and Appellee, and Hodne Homes, LLC, Respondent. |
| Court | South Dakota Supreme Court |
JIMMY NASSER of Nasser Law Firm, P.C., Sioux Falls, South Dakota, Attorneys for petitioner and appellant.
JACK H. HIEB, ZACHARY W. PETERSON of Richardson, Wyly, Wise Sauck & Hieb, LLP, Aberdeen, South Dakota, Attorneys for respondent and appellee.
[¶1.] Hodne Homes, LLC purchased a lot in Lake County to build a facility to store and display boats. After the purchase, Hodne Homes sought a variance and conditional-use permit (CUP) from the Lake County Board of Adjustment (Board), because the proposed facility exceeded the setback and size restrictions for the lot under the Lake County Zoning Ordinance (Ordinance). The Board approved both requests over the objection of Karen Dunham, an adjoining landowner. Dunham then petitioned the circuit court for a writ of certiorari challenging the Board’s decision. Hodne Homes was joined as an indispensable party to the certiorari proceedings. Following a hearing, the court denied the writ of certiorari. Dunham appeals the denial of the writ. We affirm in part and reverse in part.
[¶2.] In March 2018, Hodne Homes purchased Lot 1 of Dunham’s and Hemmer’s First Addition to Lake County (Lot 1). Dunham has owned Lot 2 in Dunham’s and Hemmer’s First Addition (Lot 2) since 2002. Lot 2 abuts the north side of Lot 1. Sodak Marina, LLC owns the lot adjoining the south side of Lot 1 and operates a business selling boats on the lot. Sodak Marina and Hodne Homes are both owned by Brandon and Jamie Hodne.
[¶3.] Lots 1 and 2 are located in the area that the Ordinance classifies as Lake Park 3 zoning district of Lake County (LP-3). Section 1105 of the Ordinance provided that LP-3 was "established to provide for oversized private and commercial storage facilities." The uses permitted within LP-3 included "private and commercial storage facilities containing no more than four thousand (4,000) square feet and [which] do not have side walls with a height greater than fourteen (14) feet." The Ordinance also imposed minimum setback requirements of two feet on the side yard and ten feet in the rear yard for properties within LP-3.
[¶4.] Prior to purchasing Lot 1, Hodne Homes sought approval from adjoining landowners to construct an oversized facility on Lot 1 to display and store boats for Sodak Marina. The facility was proposed to be a 5,760-square-foot building with sixteen-foot side walls, exceeding the size and height restrictions permitted within LP-3. The proposed facility also exceeded the minimum setback requirements for Lot 1 by leaving only one foot on each side of the yard and five feet in the rear yard. The adjoining landowners, other than Dunham, consented to the proposed facility on Lot 1.1
[¶5.] Immediately after purchasing Lot 1, Hodne Homes applied for a variance and a CUP for the oversized facility. The variance request sought to relax the two-foot side yard and ten-foot rear yard restrictions. The CUP application requested permission to exceed the height and square footage restrictions for the facility. Dunham objected, expressing that the facility would not comply with the Ordinance requirements for properties within LP-3, and that the facility was of nonconforming use because Hodne Homes intended to use the facility as a showroom. In response, Hodne Homes submitted a revised plan reducing the width of the facility to forty-seven feet. This change met the two-foot setback requirement on the side of Lot 1 adjoining Dunham’s property but did not modify the setback distances on the south side and rear yard or the nonconforming size of the proposed facility. The Lake County Planning Board considered the revised plan at a public hearing on April 11, 2018, and recommended the approval of both the variance and the CUP.
[¶6.] The Board considered Hodne Homes’ applications for a variance and CUP at another public hearing on April 17, 2018. The Board was provided staff reports drafted by a Lake County zoning officer on both requests, which recommended approving the applications and provided a potential list of findings supporting approval of the requests prefaced with the phrase, "if the [Board] grants the [variance/conditional use] it could use the following findings." A section of each report also provided findings the Board could consider if it denied the requests.
[¶7.] Dunham’s son appeared before the Board in opposition. He expressed concerns with the size and use of the facility, as well as the lack of a drainage plan on Lot 1. The Board discussed the drainage issue and options available in the area. At the conclusion of the hearing, the Board approved Hodne Homes’ requests, adopted the "findings and specific conditions outlined in the staff report," and also required a drainage plan be developed for the facility.
[¶8.] On May 11, 2018, Dunham filed a petition for writ of certiorari with the circuit court alleging the Board’s approval of the variance and the CUP were illegal and violated state statutes and the Ordinance. The circuit court granted Hodne Homes’ motion for joinder in the certiorari proceedings. The court received written briefs and heard arguments but did not receive additional evidence. Applying a deferential standard of review, the circuit court denied Dunham’s petition for writ of certiorari, determining the Board had jurisdiction to grant or deny the variance and CUP, and that both the variance and the CUP were granted in compliance with state statutes and the Ordinance.
[¶9.] Dunham now appeals the circuit court’s order denying the writ. She raises several issues, which we state as follows:
[¶10.] As an initial matter, the parties disagree as to the appropriate standard of review for both this Court and the circuit court in considering a challenge by writ of certiorari. The scope of judicial review in writ of certiorari proceedings is statutorily determined by SDCL 21-31-8.2 We have interpreted this statute to limit certiorari review "to whether the board of adjustment had jurisdiction over the matter and whether it pursued in a regular manner the authority conferred upon it." Wedel v. Beadle Cty. Comm'n , 2016 S.D. 59, ¶ 11, 884 N.W.2d 755, 758 (quoting Hines v. Bd. of Adjustment of Miller , 2004 S.D. 13, ¶ 10, 675 N.W.2d 231, 234 ). We will sustain the lower tribunal’s decision "unless it did some act forbidden by law or neglected to do some act required by law." Id. (quoting Armstrong v. Turner Cty. Bd. of Adjustment , 2009 S.D. 81, ¶ 12, 772 N.W.2d 643, 648 ).
[¶11.] Dunham argues, however, that de novo review of a lower tribunal’s decision is appropriate when a board or commission has "acted fraudulently or in arbitrary or willful disregard of undisputed and indisputable proof." Lamar Outdoor Advert. of S.D., Inc. v. City of Rapid City , 2007 S.D. 35, ¶ 21, 731 N.W.2d 199, 205 (quoting Cole v. Bd. of Adjustment of Huron (Cole I) , 1999 S.D. 54, ¶ 10, 592 N.W.2d 175, 177 ). Dunham submits that the Board’s actions were done in willful disregard of the facts in this case and were contrary to the provisions of the Ordinance. As a threshold matter, Dunham failed to present evidence to the circuit court that the Board committed fraud, acted arbitrarily, or willfully disregarded undisputed facts or proof in its consideration of the variance and the CUP. Given the lack of any such evidence, a deferential review of these certiorari proceedings is appropriate. Further, Dunham’s arguments would logically expand the scope of review in every certiorari proceeding to consider whether a board of adjustment’s findings were correct. "The interpretation of an ordinance presents a question of law which we review de novo." Cole I , 1999 S.D. 54, ¶ 4, 592 N.W.2d at 176. However, "[c]ertiorari cannot be used to examine evidence for the purpose of determining the correctness of a finding." Hines , 2004 S.D. 13, ¶ 10, 675 N.W.2d at 234.
[¶12.] Dunham also argues that a deferential standard of review only holds if there is not a "special and express statutory provision" establishing a contrary standard. See State ex rel. Grey v. Circuit Court of Minnehaha Cty. , 58 S.D. 152, 235 N.W. 509, 511 (1931). To this end, Dunham argues SDCL 11-2-643 and SDCL 11-2-654 permit de novo review of the merits.
[¶13.] These statutes do not direct de novo review of a decision granting or denying a variance or a CUP. We have recognized that petitions challenging a decision by a board of adjustment under SDCL 11-2-61 "are postured as writs of certiorari; thus judicial review is limited." Wedel , 2016 S.D. 59, ¶ 11, 884 N.W.2d at 758. While SDCL 11-2-64 permits a court to receive evidence when "it appears to the court that testimony is necessary," the statute does not modify the scope of judicial review. Likewise, SDCL 11-2-65 addresses the authority of the courts to grant relief on a petition under SDCL 11-2-61, but this section does not pertain to the scope of review. Our prior decisions have consistently maintained this limited scope of review in certiorari proceedings, and Dunham’s arguments do not support expanding our review in this case.
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