Graves v. Johnson

• Decision Date: 16 March 1954
• Docket Number: No. 9387,9387
• Citation: 75 S.D. 261,63 N.W.2d 341
• Parties: GRAVES et al. v. JOHNSON et al.
• Court: South Dakota Supreme Court

Page 341

63 N.W.2d 341

75 S.D. 261

GRAVES et al. v. JOHNSON et al.

No. 9387.

Supreme Court of South Dakota.

March 16, 1954.

W. A. McCullen, Geo. A. Bangs, Rapid City, for plaintiffs and appellants.

H. F. Fellows, John G. Potter, H. R. Hanley, Rapid City, for defendants and respondents.

PER CURIAM.

Edward G. Graves and J. T. Moneyhun, owners of residences in immediate proximity to Outlot B of Merchens First Addition of the city of Rapid City, brought this action seeking an injunction to prevent the construction and operation of a drive-in theatre on a tract within Lot B which was made by zoning ordinance a part of a residential area. The complaint alleges that defendant Johnson proposes to construct and maintain such an establishment under an authorization of the zoning board of adjustment, the order having been granted at the conclusion of an appeal from the building inspector's rejection of an application for a building permit. Plaintiffs further allege that the drive-in theatre if constructed would cause irreparable injury; that the value of their residences would be greatly depreciated; that they would be inconvenienced annoyed and injured in the use of their respective residences by the noise, dust, traffic and line of innumerable cars necessarily attendant upon the operation of such an enterprise; and that the proposed use of the property for construction and operation of a drive-in theatre and the purported variance allowed by the board are in violation of the zoning ordinance of the city.

The court below granted motion to dismiss the complaint on the ground that plaintiffs had a plain, speedy and adequate remedy provided by law for review of the order of the board of adjustment and having failed to exhaust the statutory remedy are not entitled to injunctive relief. Plaintiffs appeal.

Municipal corporations are empowered to 'regulate and restrict the height, number of stories, and size of buildings and other structures, the percentage of lot that may be occupied, the size of the yards, courts, and other open spaces, the density of population, and the location and use of buildings, structures, and land for trade, industry, residence, or other purposes.' SDC 45.2601. 'Proposed districts and restrictions shall be definitely set forth in a proposed ordinance.' A zoning ordinance setting forth restrictions cannot become effective until after public hearing at which all persons interested shall be given an opportunity to be heard. SDC Supp. 45.2604. Pursuant to the powers conferred by statute, the City of Rapid City enacted a zoning ordinance and it is not contended that it in any respect fails to conform to the authorizing statute.

The remedy to which defendants refer is that provided in SDC 45.2607. Any person or persons aggrieved by any decision of the board of adjustment may thereunder present to a court of record a petition duly verified specifying the grounds of alleged illegality. Upon presentation of the petition within thirty days after the filing of the decision in the office of the board, the court may allow a writ of certiorari directed to the board of adjustment to review its decision.

The statute, SDC 45.2607, authorizes, and the city commission by the ordinance created, a board of adjustment with the following powers: '(1) To hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of this chapter or of any ordinance adopted pursuant thereto; (2) To hear and decide special exceptions to the terms of the ordinance upon which such board is required to pass under such ordinance; (3) To authorize upon appeal in specific cases such variance from terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship and so that the spirit of the ordinance shall be observed and substantial justice done.'

The action of public officers is binding only when that action is within the scope of their authority. Danforth v. City of Yankton, 71 S.D. 406, 25 N.W.2d 50; Lien v. Northwestern Engineering Co., S.D. 54 N.W.2d 472. It is within the power of the circuit court in a proper case to enjoin threatened or anticipated violation of a municipal ordinance. City of Huron v. Campbell, 3 S.D. 309, 53 N.W. 182. The annotation in 129 A.L.R. 885, supplementing 54 A.L.R. 366, on the subject of 'Injunction as remedy for violation of zoning ordinance', expresses the rule as follows: 'In most of the jurisdictions in which the question has arisen, it has been held that a property owner, at least upon showing that special damage by way of diminution in value of his property has been or will be suffered by him as a result of the violation of the particular zoning ordinance, may pursue the remedy of enjoining such violation; and some of the courts hold that this may be done even in the absence of express authority in that regard either in the ordinance or in a statute.' Thus, in Holzbauer v. Ritter, 184 Wis. 35, 198 N.W. 852, 853, the court held: 'On the facts alleged in this complaint, it is plain that if the defendants...