Fortier v. City of Spearfish, No. 16089

• Court: Supreme Court of South Dakota
• Writing for the Court: HEEGE; WUEST; SABERS; HEEGE, Circuit Judge, for HENDERSON; SABERS
• Citation: 433 N.W.2d 228
• Parties: Arthur R. FORTIER, Plaintiff and Appellant, v. CITY OF SPEARFISH, Defendant and Appellee.
• Decision Date: 07 December 1988
• Docket Number: No. 16089

Page 228

433 N.W.2d 228 Arthur R. FORTIER, Plaintiff and Appellant,
v.
CITY OF SPEARFISH, Defendant and Appellee. No. 16089. Supreme Court of South Dakota. Argued Sept. 1, 1988.
Decided Dec. 7, 1988.

Reed C. Richards, Deadwood, for plaintiff and appellant.

John J. Delaney, Rapid City, for defendant and appellee.

Michael G. Diedrich of City Attorney's Office, Rapid City, for amicus curiae City of Rapid City.

HEEGE, Circuit Judge.

Arthur Fortier (Fortier) appeals the trial court's grant of summary judgment in a declaratory judgment action. The trial court held that the City of Spearfish's (Spearfish) comprehensive zoning and flood damage ordinances were valid. We affirm.

FACTS

Fortier purchased two empty lots adjoining Spearfish Creek within the City of Spearfish in 1977 for $8,500. After Fortier's purchase, Spearfish adopted its first comprehensive plan and zoning ordinance. Another comprehensive zoning ordinance was adopted in March 1980. Both of these ordinances contained flood plain district restrictions that affected the development of Fortier's property.

More stringent restrictions were placed on property in the flood plain, including Fortier's, when Spearfish adopted Flood Control Ordinance No. 488 in 1981. This ordinance was enacted under the national flood insurance programs and the auspices of the Federal Emergency Management Agency. Flood Control Ordinance No. 488 was revised in June 1982 and also restricted development. Spearfish readily admits that development, particularly new construction, is difficult under these restrictions.

Each of these ordinances was adopted after giving notice by publication and holding hearings prescribed by SDCL 11-6-17. The adoption of the ordinances was published as provided by SDCL 11-6-18.2.

Fortier's complaint alleges that these ordinances were unconstitutional because (1) they were enacted without "adequate or actual notice to" Fortier and (2) they are "an unreasonable exercise of defendant Spearfish's zoning power as to become arbitrary, destructive or confiscatory."

The trial court granted summary judgment, concluding that the flood plain ordinances were properly adopted and were not in any way unconstitutional, arbitrary or capricious. We will deal with the two claims made in Fortier's complaint ad seriatim.

NOTICE

Fortier claims his due process rights were violated because he did not receive personal notice of the proposed changes in the zoning ordinances that affected his property rights.

SDCL Chapter 11-6 provides the procedure a city or municipality must follow in adopting a comprehensive zoning plan. Prior to adoption of the plan by the city council, the planning commission must give notice and hold a public hearing. SDCL 11-6-17. Following a hearing, the plan is recommended to the city council for approval. Before the city council may vote on the recommended plan, SDCL 11-6-18 provides the city must give notice and hold

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a hearing according to the requirements of SDCL 11-6-17.

If the council adopts the comprehensive zoning plan, a summary of the action is published in the official newspaper of the city. SDCL 11-6-18.2. A municipality must follow a similar course of conduct when adopting changes to the zoning plan.

Fortier makes no claim that Spearfish violated the relevant state statutes for notice and hearing requirements. Instead, Fortier argues that due process requires more "adequate notice," than that dictated by statute.

Fortier relies on Matter of South Dakota Water Management Board, 351 N.W.2d 119 (S.D.1984) and Application of Koch Exploration Co., 387 N.W.2d 530 (S.D.1986) for the position that personal notice is required. Fortier's reliance on these cases is misplaced.

In Matter of South Dakota Water Management Board, supra, landowners contended they were entitled to personal notice for an administrative hearing. At the hearing, the Water Management Board considered an application for a permit to appropriate water from Oahe Reservoir. The court held notice by publication was sufficient for this hearing. The court in Application of Koch, supra, reviewed the findings of the Board of Minerals and Environment which approved the unitization of a portion of an oil field. Two affected landowners contended they were entitled to personal notice. The court found it unnecessary to address the notice issue since these landowners had appeared before the board and participated at the hearing.

Both of these cases contain dicta from Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). In Mullane, the United States Supreme Court held that notice by publication is constitutionally insufficient in matters affecting private property where the owners of the...