Lohman v. City of Aberdeen

• Decision Date: 12 November 1976
• Docket Number: No. 11607,11607
• Citation: 246 N.W.2d 781
• Parties: Dorothy J. LOHMAN and Vernon P. Lohman, Petitioners and Respondents, v. CITY OF ABERDEEN, a Municipal Corporation, et al., Respondents and Appellants.
• Court: South Dakota Supreme Court

Page 781

246 N.W.2d 781

Dorothy J. LOHMAN and Vernon P. Lohman, Petitioners and Respondents, v. CITY OF ABERDEEN, a Municipal Corporation, et al Respondents and Appellants.

No. 11607.

Supreme Court of South Dakota.

Nov. 12, 1976.

C. W. Hyde of Hyde, Preszler & Foreman, Aberdeen, for petitioners and respondents.

Charles B. Kornmann of Richardson, Groseclose, Kornmann & Wyly, Aberdeen, for respondents and appellants.

WOLLMAN, Justice.

Petitioners commenced mandamus proceedings to compel respondents to approve certain plats of land adjoining the city of Aberdeen. The trial court granted the writ, and respondents appeal. We reverse. ¹

The matter was tried on seven different days over a period of four months. The record includes a bewildering number of plots and plot plans, sketches, drawings, maps, copies of maps, plats, preliminary plats, resolutions, and the like, some of which exhibits appear to be either duplicative or irrelevant.

Petitioner Dorothy J. Lohman owns a quarter section of land (the land) southeast of the city of Aberdeen (the city). The quarter section lies immediately adjacent to the southeast portion of the municipal airport. In June of 1967 Mrs. Lohman conveyed to the city a clear zone avigation easement over the southwest quarter of the land. In 1969 she sold a .77 acre tract in the southwest corner of the land to the city for the instrument landing system on the northwest-southeast runway at the airport.

In late 1969 Mrs. Lohman and her husband, petitioner Vernon P. Lohman, undertook to have the land platted for the purpose of developing it as a residential subdivision. In August of 1970 the Aberdeen city planning commission and the city commission approved a plat of a portion of the land denominated as outlots 1 through 8, Jobee Acres. A plat of outlots 9 through 25 of Jobee Acres was approved in January of 1973.

On June 20, 1973, Milbert Mehlhoff, a local real estate broker acting on behalf of petitioners, presented to a joint meeting of the city planning commission and the Brown County planning commission (the land is outside of but within three miles of the corporate limits of the city and thus joint action of these two commissions was required. SDCL 11--6--12) a plat of outlots 26 through 62 of Jobee Acres. This plat was approved by the joint commissions, '* * * subject to displaying all easements set forth in the restrictive covenants as well as mandatory setback lines.' ²

To comply with the conditions imposed by the joint planning commission, petitioners had the setback and easement lines drawn on the plat by their engineering consultants. On July 17, 1973, Mr. Mehlhoff presented the plat of outlots 26 through 62 to the city commission. The minutes of the commission meeting of July 17, 1973, state that '(A)pproval of the final plat of Jobee Acres was continued for Owners Certificate to provide for dedication of streets and to show access roads on the plat * * *.'

After making the requested changes, petitioners again presented the plat to the city commission on July 24, 1973, at which time the airport manager informed the commission that because the property line of the proposed plat adjoined the southeast approach zone at the airport, approval of the plat would not llow for future expansion of the airport to the south, the only direction available for expansion. The commission apparently took no action on the plat other than to recommend that petitioners meet with the airport board to discuss the problem raised by the airport manager. In accordance with this recommendation, Mr. Lohman and Mr. Mchlhoff met with the members of the airport board the following week at which time the members of the board drew a diagonal line across the plat, cutting it approximately in half, to indicate the area within which the board thought residential development should not be permitted. Apparently in response to a suggestion by the city commission, petitioners prepared a new plat covering outlots 26, 27, 28, 29, 33 to 36, and 46 of Jobee Acres and presented it to the city commission for approval on August 7, 1973. This plat was approved on that date and was later filed in the office of the register of deeds.

Further negotiations continued between petitioners and the members of the airport board into December of 1973. These negotiations proved unsuccessful, however, and on March 5, 1974, petitioners' attorney appeared before the city commission and demanded that the commission approve a plat of outlots 26 through 62, and a plat of outlots 30, 31, 32, 37 to 45, and 47 to 62, the latter representing the outlots remaining unapproved following the approval by the city commission of the plat of outlots 26, 27, 28, 29, 33 to 36, and 46 on August 7, 1973. The commission refused to approve these plats, citing, among other reasons, the fact that petitioners had failed to comply with the subdivision regulations concerning the submission of the plats. Petitioners thereupon commenced these mandamus proceedings against the commissioners, alleging that because the commission had failed to approve or disapprove the plat of outlots 26 through 62 within 60 days after its submission the plat was deemed approved under the provisions of SDCL 11--6--32, which, at all times material to this action, provided that:

'The plat shall be approved or disapproved within sixty days after submission thereof; otherwise such plat shall be deemed to have been approved and a certificate to that effect shall be issued by the council on demand; provided, however, that the applicant for the approval may waive this requirement and consent to the extension of such period. The ground of disapproval of any plat shall be stated upon the records of the council.' ³

Alternatively, petitioners contended that once the city planning commission had approved the plat the city commission had no discretion to disapprove it but was limited to administratively approving the plat.

In holding that the writ should issue, the trial court found that the plat had remained on file for several months after July 24, 1973, and concluded that the commission had an absolute duty to approve the plat since the commission had failed to disapprove it within 60 days after it was submitted. Moreover, the trial court held that the city commission had no discretion with respect to approving the plat once it had been approved by the city and county planning commissions and that, in so many words, the city commission 'was acting in a 'rubber-stamp' posture which should have affirmed all Plan Commission allowances.' The writ directed the city commissioners to approve both the original plat of outlots 26 through 62 and the subsequent plat covering outlots 30, 31, 32, 37 to 45, and 47 to 62.

Although mandamus will lie to compel officials to...