Sanderson v. City of Mobridge
| Decision Date | 31 March 1982 |
| Docket Number | No. 13382-,13382- |
| Parties | Deanna G. SANDERSON and Norgrin Sanderson, Plaintiffs and Appellees, v. CITY OF MOBRIDGE, A South Dakota Municipal Corporation, Defendant and Appellant. r-JF. |
| Court | South Dakota Supreme Court |
Russell H. Battey of Williams & Gellhaus, Aberdeen, for plaintiffs and appellees.
A. N. Buckmeier of Bormann, Buckmeier & Bormann, Mobridge, for defendant and appellant; Clark J. Bormann of Bormann, Buckmeier & Bormann, Mobridge, on the brief.
Deanna and Norgrin Sanderson, appellees, own a house in Mobridge, South Dakota, which they wish to move to their current place of residence, Aberdeen, South Dakota. Mobridge City Ordinance ch. 9.04 requires that the Sandersons obtain a permit from the City of Mobridge (City), appellant, before their house can be moved over the streets of Mobridge. The Sandersons applied to the City for a moving permit but it was denied. The Sandersons brought an action in circuit court to compel the City to issue the moving permit. A trial to the court was held, subsequent to which the circuit court granted the Sandersons a moving permit. The City appeals from the Judgment of the circuit court. We reverse.
The City's denial of appellees' permit application was not an ultra vires act as Evans v. King, 57 S.D. 109, 230 N.W. 848, 849 (1930). The circuit court's scope of review is thus limited to whether the City's refusal to grant the permit "was unreasonable and arbitrary or was justified in the exercise of reasonable discretion." Id. Such a standard is mandated by the separation of powers doctrine which this court has long recognized governs judicial review of municipal actions. City of Mobridge v. Brown, 39 S.D. 270, 164 N.W. 94 (1917); See Foss v. Spitznagel, 77 S.D. 633, 97 N.W.2d 856 (1959); Ericksen v. City of Sioux Falls, 70 S.D. 40, 14 N.W.2d 89 (1944).
The trial court's findings list the seven grounds relied on by the City to support their decision not to grant the permit. The City's reasons for denial focus on the destruction of the aesthetic value of the area occasioned by the removal or disfigurement of trees along the moving route. We believe such refusal grounds are reasonable and reflect a real and commendable concern for the aesthetic preservation of Mobridge. The trial court obviously did not agree with the City concerning the number of trees which would have to be removed and the extent of harm the trimming would cause. But such disagreement does not suffice to condemn the City's decision as arbitrary.
The trial court's conclusion that the City abused its discretion and arbitrarily refused to grant the permit is therefore not supported by its findings which list the reasons relied on by the City to deny the permit. The decision of the trial court is accordingly reversed.
Other issues raised are unnecessary to decide in view of the decision reached.
I would affirm the judgment of the trial court. As in all cases, an adequate recitation of the facts is vital so that the reader has a balanced view of competing theories and can thus appreciate why a dissent foments in the mind of the dissenter.
Appellees purchased a home in Mobridge for approximately $38,000 in 1978. In March of 1979, appellees attempted to sell their home as appellee Norgrin Sanderson had assumed an employment position in Aberdeen. Appellee Norgrin Sanderson testified that approximately $28,000 worth of redecorating and remodeling was done on the home during the time he and his wife had lived there. The home was listed with local realtors but several months passed and no offers were made. Consequently, appellees decided to move their home from Mobridge to Aberdeen for the express purpose of reestablishing their family residence.
Pursuant to the applicable city ordinances, appellees applied to the City in May of 1980 for a permit to move their home. A fee was tendered and a bond posted by appellees. On June 17, 1980, the Mobridge City Council met and denied appellees' application for the following reasons:
(1) It will cause the destruction of several trees along the boulevard in front of the house.
(2) It will cause the destruction of several trees in the city park which is not in the best interest of the City.
(3) It will cause excessive trimming of branches on trees along the proposed route of removal, which will be detrimental to the trees.
(4) The removal of trees in the city park and on the boulevard in front of the house to be removed, will destroy the aesthetics of the site and area.
(5) That the street or streets selected are not wide enough to permit removal of the building without great damage to the (6) That the streets may be damaged from the weight of the building to be removed.
trees along the street and will destroy the aesthetic value of the area.
(7) Application does not select a route which is feasible as stated.
City Ordinance #555, section 5, provides: "The City Council and Superintendent of Parks shall have the authority and jurisdiction of regulating the planting, maintenance and removal of trees on streets and other publicly-owned property to insure safety or preserve the aesthetics of such public sites." Any failure to comply with the provisions of this ordinance would subject the offender to a fine and/or imprisonment.
The home in question is forty feet wide, fifty and one-half feet long, and twenty-six feet high. These dimensions do not include a library that is presently attached to the home but which would be detached and moved separately. Appellees commenced this suit after being denied a permit to move their home.
Under the proof submitted in this case, did the trial court commit reversible error by granting appellees a permit to move their home? I would hold that it did not. Did the City abuse its discretion and arbitrarily refuse appellees a permit to move their home? I would hold that it did.
First, the City argues that the trial court erroneously failed to consider appellees' alleged poor faith effort in selling their home. The City points out that appellees were asking $105,000 for their home, yet they paid only $38,000 for it and made $28,000 worth of improvements, thus creating a $39,000 mark-up. Appellees had the house listed with two local realtors for approximately eight months, during which time they received no offers.
Such a contention is irrelevant inasmuch as the ordinances pertaining to permit applications do not require a good-faith effort to sell a home prior to moving it. The City conceded this point in oral argument. Therefore, this contention is without merit.
The City secondly contends that the trial court erred when it considered the house moving permits previously issued by the City. In Finding of Fact XI(7), the trial court stated "[t]hat at no time heretofore had the Mobridge City Council denied a moving permit due to the apparent necessity of the removal or trimming of trees." The City maintains that the other permits are irrelevant, immaterial and have no probative value since all but one were issued prior to the enactment of City Ordinance #555. I do not agree.
It was the duty of the trial court to determine from the evidence if the City Council acted arbitrarily and abused its discretion when it denied appellees' permit application. Before making this determination, the trial court obviously deemed it necessary to review the City Council's previous actions regarding these type of applications. The evidence which the City would foreclose from consideration is pertinent as to whether a reasonable discretion in denying the permit was exercised by the City. Under the mandates of SDCL 19-16-2(2), 1 the evidence was relevant.
Third, the City contends that the trial court erred in not recognizing a change in appellees' facts from the time of filing their application for a permit to the time of trial. Specifically, the City alleges that appellees' hired mover, James Herman, stated at the city council meeting that five trees would have to be totally removed and extensive trimming would be required on other trees in order to move the home. At trial, Herman testified that only three trees would have to be removed (one of which was dead) and extensive trimming would not be required.
Assuming arguendo that the court below failed to recognize this discrepancy, under the particulars of this case, I do not consider such an evidentiary disparity as rising to the level of prejudicial error. See State Highway Commission v. Beets, 88 S.D. 536, 224 N.W.2d 567 (1974).
The City advocates that the trial court should be reversed and the denial of appellees' request for a permit be reinstated due to several factors which are hereinafter enumerated. Initially, however, I refer to the following quote from Evans v. King, 57 S.D. 109, 110-111, 230 N.W. 848, 849 (1930):
Moving buildings across or along a city street is not a ordinary use of the street, and the privilege of so using the streets cannot be claimed as a matter of right, 44 C.J. 1038, City of Eureka v. Wilson, 15 Utah, 53, 48 P. 41; Edison El. L. & P. Co. v. Blomquist (C.C.) 185 F. 615. In a small city or town where the streets are not crowded by traffic to any great extent, the use of the streets for moving buildings may be properly exercised under reasonable regulations, and to totally forbid such use in such communities may well be deemed unreasonable, and in a proper case the city authorities may be compelled by mandamus to issue a...
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