Even v. City of Parker

• Decision Date: 16 June 1999
• Docket Number: No. 20519., No. 20516
• Citation: 1999 SD 72,597 N.W.2d 670
• Parties: Donald EVEN, Petitioner and Appellee, v. CITY OF PARKER, a South Dakota Municipality, Respondent and Appellant, v. The Board of Adjustment of the City of Parker, Respondent.
• Court: South Dakota Supreme Court

597 N.W.2d 670

1999 SD 72

Donald EVEN, Petitioner and Appellee, v. CITY OF PARKER, a South Dakota Municipality, Respondent and Appellant, v. The Board of Adjustment of the City of Parker, Respondent.

Nos. 20516, 20519.

Supreme Court of South Dakota.

Argued March 22, 1999.

Decided June 16, 1999.

Jeffrey A. Cole of Zimmer, Duncan and Cole, Parker, for petitioner and appellee.

David M. Buechler, Parker, for respondent and appellant.

GILBERTSON, J.

[¶ 1.] Donald Even (Even) brought a verified petition alleging illegality of a decision by the City of Parker Board of Adjustment (Board) pursuant to SDCL 11-4-25 and an application for a writ of certiorari. The trial court, First Judicial Circuit, Turner County, found the Board was estopped from enforcing a zoning ordinance on Even. The Board appeals and Even files notice of review. We affirm.

FACTS AND PROCEDURE

[¶ 2.] Even and his wife are owners of real property in the City of Parker, South Dakota that they purchased in 1996 upon their marriage. Even is a dairy farmer and his wife is a full-time student. In the summer of 1997, Evens decided to remove an old garage from their property considered by them to be in "poor" condition¹ and build a new garage. Family finances dictated that it be a pole type construction as that was considered the least expensive and most affordable option. Even was unaware he was required to apply for a conditional use permit to build a "pole type" garage. Apparently, prior to 1996 it was permissible to build pole type buildings in the City of Parker. In that year the City amended its Zoning Regulations to prohibit pole type buildings in residential areas unless a conditional use permit was obtained.

[¶ 3.] Even first orally visited with Mr. Kastner, the City Zoning Administrator, who informed him of various restrictions on the building of garages.² The newly enacted prohibition against pole type garages was not mentioned. On September 22, 1997, Even filled out an application for a building permit. The application form, which was drafted on behalf of the City, did not ask whether the proposed building was to be of pole type construction. The application was given to the Zoning Administrator, who reviewed it and issued Even a city building permit for the construction of the garage without further discussion. The Zoning Administrator personally delivered the permit to the Even residence and left it in Even's front door.

[¶ 4.] When he received the building permit, Even began buying materials for the garage and incurred approximately $4,470.00 in building material expenses. To save money he ordered a customized kit of materials from a supplier who had a business relationship with Even's brother. However, since it was a customized kit, the supplier would not accept a return of the materials unless another customer ordered the exact same kit. The materials were delivered by the supplier to the Even residence. On September 26, 1997, the Zoning Administrator re-visited the Even property and told Even the proposed garage was of "pole type" construction and under the zoning ordinance he could not build the garage.

[¶ 5.] A family member later told the Evens they might be able to build the garage if they procured a conditional use permit. On October 6, 1997, Even completed another Building Permit Application for a conditional use permit. The City Planning and Zoning Board of Adjustment (Board) met to consider Even's application on October 23, 1997. The Board voted to deny Even's application. The Board never made any written findings as to Even's second application. However, the Board failed to revoke the previously issued building permit.

[¶ 6.] Even filed the verified petition pursuant to SDCL 11-4-25³ and for a writ of certiorari which commenced this action against the Board. His claims were heard by the trial court, which found the City was estopped from enforcing the provisions of the zoning ordinance. The City appeals raising the following issues:

1. Whether the trial court erred in estopping the City of Parker from enforcing the zoning ordinance on Even.

2. Whether Even was required to exhaust administrative remedies prior to commencing this action in circuit court.

Even filed notice of review raising the following issues:

3. Whether the inclusion in the zoning ordinance of a provision allowing buildings of pole construction as a use permitted with a conditional use permit is a legislative finding that the use is generally compatible with adjoining properties and other property in the zoning district.

4. Whether the trial court erred in its decision that the Board did not abuse its discretion in denying Even's application for a conditional use permit because the building was not compatible with adjoining properties.

5. Whether the Board's denial of Even's application for a conditional use permit is an abuse of discretion because the Board based its decision on an incorrect legal standard.

6. Whether the Board's failure to enter findings of fact and conclusions of law renders its decision an abuse of discretion and arbitrary and capricious as a matter of law.

7. Whether the zoning ordinance, which makes a building of pole construction a conditional use, is vague and overbroad and deprives Even of due process under the South Dakota and United States Constitutions.

8. Whether the City of Parker Zoning ordinance is ambiguous in its reference to making a building of "pole construction" a conditional use in a residential district.

STANDARD OF REVIEW

[¶ 7.] We review a decision by the Parker Board of Adjustment, made pursuant to the provisions of SDCL 11-4-25 through 11-4-29, to determine whether the order of the Board is supported by substantial evidence and is reasonable and not arbitrary. Schrank v. Pennington County Bd. of Commissioners, 1998 SD 108, ¶ 18, 584 N.W.2d 680, 683 (citing Graves v. Johnson, 75 S.D. 261, 266, 63 N.W.2d 341, 344 (1954)). We review it in the same manner as the circuit court, unaided by any presumption of the correctness of the circuit court's determination. Hamerly v. City of Lennox, Bd. of Adj., 1998 SD 43, ¶ 10, 578 N.W.2d 566, 568 (citing Olson v. City of Deadwood, 480 N.W.2d 770, 774-75 (S.D.1992)).

[¶ 8.] As to the petition for writ of certiorari, our scope of review is:

Zoning ordinances are interpreted according to the rules of statutory construction and any rules of construction included in the ordinances themselves. Cordell v. Codington County, 526 N.W.2d 115, 117 (S.D.1994). See also 83 Am.Jur.2d Zoning and Planning § 698 (1992). The interpretation of an ordinance presents a question of law which we review de novo. See Matter of Estate of Gossman, 1996 SD 124, ¶ 6, 555 N.W.2d 102, 104 (citing Sioux Valley Hosp. Ass'n v. State, 519 N.W.2d 334, 335 (S.D.1994); King v. John Hancock Mut. Life Ins. Co., 500 N.W.2d 619, 621 (S.D.1993)). 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. See Nilson v. Clay County, 534 N.W.2d 598, 601 (S.D.1995).

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. Save Centennial Valley Ass'n Inc. v. Schultz, 284 N.W.2d 452, 454 (S.D.1979). "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." Id. (citing State v. State Board of Assessment and Equalization, 3 S.D. 338, 53 N.W. 192 (1892)).

Peters v. Spearfish ETJ Planning Com'n, 1997 SD 105, ¶¶ 5-6, 567 N.W.2d 880, 883. (Emphasis added).

[¶ 9.] The standard to be applied when reviewing the findings of fact is that a finding shall not be set aside unless clearly erroneous. SDCL 15-6-52(a). Clear error exists only when upon a review of all the evidence in the record, we are left with a definite and firm conviction a mistake has been made. Cordell, 526 N.W.2d at 116. The scope of review as to whether an equitable estoppel exists is fully reviewable as a mixed question of law and fact. Matter of Loomis, 1998 SD 113, ¶ 7, 587 N.W.2d 427, 429.

ANALYSIS AND DECISION

[¶ 10.] 1. Whether the trial court erred in estopping the City of Parker from enforcing the zoning ordinance on Even.

[¶ 11.] The Board claims the trial court erred in estopping it from enforcing the zoning ordinance against Even. We have applied estoppel against public entities in "exceptional circumstances to `prevent manifest injustice.'" Smith v. Neville, 539 N.W.2d 679, 682 (S.D.1995) (citing City of Rapid City v. Hoogterp, 85 S.D. 176, 180, 179 N.W.2d 15, 17 (1970)). See also Hanson v. Brookings Hosp., 469 N.W.2d 826 (S.D.1991); Rhodes v. City of Aberdeen, 74 S.D. 179, 50 N.W.2d 215 (1951); City of Colome v. Von Seggern Bros. & Ludden, 56 S.D. 390, 228 N.W. 800 (1930); Tubbs v. Custer City, 52 S.D. 458, 218 N.W. 599 (1928); City of Deadwood v. Hursh, 30 S.D. 450, 138 N.W. 1122 (1912); Missouri River Telephone Co. v. City of Mitchell, 22 S.D. 191, 116 N.W. 67 (1908). However, we do not favor estoppel against a public entity and will apply it only in extreme cases. Hoogterp, 85 S.D. at 179, 179 N.W.2d at 17.

[¶ 12.] "The doctrine of equitable estoppel or estoppel in pais is bottomed on principles of morality and fair dealing and is intended to subserve the ends of justice." Id. at 179, 179 N.W.2d at 16. When considering the application of equitable estoppel, each case is dependent on application of the doctrine to the specific facts. Id. When applying the doctrine to "municipal corporations in matters pertaining to their governmental functions.... [t]he basis of its application ... is ... municipal officers ... have taken some...