State Theatre Co. v. Smith, No. 12498

CourtSupreme Court of South Dakota
Writing for the CourtHENDERSON
Citation276 N.W.2d 259
PartiesSTATE THEATRE COMPANY, a South Dakota Corporation, Plaintiff and Appellant, v. Boyce SMITH, City Finance Officer, in and for the City of Brookings, South Dakota, Defendant and Respondent.
Docket NumberNo. 12498
Decision Date08 March 1979

Page 259

276 N.W.2d 259
STATE THEATRE COMPANY, a South Dakota Corporation, Plaintiff
and Appellant,
v.
Boyce SMITH, City Finance Officer, in and for the City of
Brookings, South Dakota, Defendant and Respondent.
No. 12498.
Supreme Court of South Dakota.
Argued Jan. 22, 1979.
Decided March 8, 1979.

Page 260

George S. Mickelson, of McCann, Martin & Mickelson, Brookings, for plaintiff and appellant.

Todd D. Boyd, Brookings, for defendant and respondent; Alan F. Glover, of Denholm & Glover, Brookings, on the brief.

HENDERSON, Justice.

PARTIES

The Plaintiff-Appellant, State Theatre Company, a South Dakota Corporation, brought suit in Brookings County against the Defendant-Respondent, Boyce Smith, as city finance officer of the City of Brookings. For convenience and clarity, the parties will be referred to as State Theatre and Smith.

ACTION

State Theatre sought an alternative writ of mandamus ordering Smith to publish notice of an ordinance rezoning State Theatre property, and also a declaratory judgment under the provisions of SDCL 21-24 requesting that SDCL 11-4-5 be declared unconstitutional. The learned trial court entered judgment in favor of Smith on both of State Theatre's prayers for relief.

Page 261

FACTS

The parties entered into a stipulation of facts. The court entered its findings of fact, conclusions of law and judgment based upon the stipulation.

State Theatre owns real estate legally within the boundaries of Brookings. Since its annexation in 1967 the property has been zoned R-1A Single Family Dwelling, although it had been used as a golf driving range until 1977 via "grandfathering."

In July, 1977, State Theatre's officers filed a petition with the city planning commission asking that the property be reclassified B-3. A B-3 classification (Business B-3 heavy) allows indoor and outdoor amusements including theaters and drive-in theaters. The planning commission recommended that the city commission approve the reclassification.

Ordinance 17-77, the ordinance rezoning the State Theatre property, was given first reading on September 20, 1977. On October 18, 1977, the ordinance was given a second reading. At the public hearing on the second reading a petition protesting any rezoning was filed. After the petition was filed, the ordinance was amended; the classification of the property was amended from B-3 to a B-2 fringe district. The commission voted unanimously to approve the amended ordinance.

After the October 18 city commission meeting, the Brookings city attorney took the legal posture that the amended ordinance could not go into effect because forty percent of the owners in equity of surrounding properties had protested pursuant to SDCL 11-4-5. Boyce Smith, the city finance officer in charge of publishing and placing the ordinance on the books advised the commission on November 1, 1977, of his intention not to do so. This act triggered the lawsuit.

ISSUES

1. Was the petition of the landowners valid?

2. Did the amended city ordinance become effective?

3. Does SDCL 11-4-5 supersede Section 808.1 of the Brookings ordinances?

4. Is SDCL 11-4-5 unconstitutional as being an unlawful delegation of legislative power?

DECISION

State Theatre argues that the protest petition is invalid because it does not specifically refer to the B-3 classification that State Theatre petitioned for. The protest petition provided that:

We, the undersigned property owners, request that the Brookings City Commission reject the application of Richard Peterson to rezone the property known as the driving range south of the Sioux Drive-in. This is legally described as: The North 288.4' of the West 690.8' of Outlot A of the Southeast Quarter (SE 1/4) of Section Thirty-five (35), Township One Hundred Ten (110) North, Range Fifty (50) West of the 5th P.M., Brookings County, South Dakota.

We do not concur with State Theatre's interpretation of the requirements for a protest petition as set forth in SDCL 11-4-4. According to that statute there are three requirements for a valid protest petition. The petition must be written; it must be signed by at least forty percent of the owners of equity in the lots within one hundred fifty feet from the district; and, it must be filed against the proposed district. If these requirements are met, as they were in this case, the protest petition will halt the effectiveness of an adopted zoning ordinance or an amended zoning ordinance that has been adopted. SDCL 11-4-4, SDCL 11-4-5.

Both parties concede that the petitions of the landowners do not contain a sufficient aggregate area so as to defeat under the Brookings ordinance but do contain sufficient signatures under the state statute.

State Theatre also argues that SDCL 11-4-5 is superseded by Section 808.1 of the Brookings Code of Ordinances because of SDCL 11-4-6.

SDCL 11-4-5 provides:

Page 262

If such ordinance be adopted, the same shall be published and take effect as other ordinances unless the referendum be invoked, or unless a written protest be filed with the auditor or clerk, signed by at least Forty per cent of the owners of equity in the lots included in any proposed district and the lands within one hundred fifty feet from any part of such proposed district measured by excluding streets and alleys. A corporation shall be construed to be a sole owner, and when parcels of land are in the name of more than one person, ownership representation shall be in proportion to the number of signers who join in the petition in relation to the number of owners. In the event such a protest be filed, the ordinance shall not become effective as to the proposed district against which the protest has been filed. Such written protest shall not be allowed as to any ordinance regulating or establishing flood plain areas. (Emphasis added.)

Section 808.1 provides:

If a written protest against any proposed amendment, supplement or change shall have been presented to the city commissioners, signed by the owners of at least Forty percent of the aggregate area of...

To continue reading

Request your trial
29 practice notes
  • Canton Lutheran Church v. SOVIK, MATHRE, ETC., Civ. No. 79-4068.
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • February 13, 1981
    ...standard" for unconstitutionality as South Dakota. See Phillips v. ABC Builders, Wyo., 611 P.2d 821 (1980). State Theater v. Smith, 276 N.W.2d 259 (S.D.1979). Matter of Certain Territorial Electric Boundaries v. Northwestern Public Service Company, 281 N.W.2d 65 (S.D.1979). Aberdeen Ed......
  • Wegleitner v. Sattler, No. 20211
    • United States
    • Supreme Court of South Dakota
    • February 18, 1998
    ...had been in effect for 50 years and withstood an identical challenge eighteen years earlier), overruling State Theatre Co. v. Smith, 276 N.W.2d 259 21 Mo.Ann.Stat. § 537.053 (West 1988) provides: 1. Since the repeal of the Missouri Dram Shop Act in 1934 (Laws of 1933-34, extra session, page......
  • State v. Neville, No. 13260
    • United States
    • Supreme Court of South Dakota
    • December 2, 1981
    ...(S.D.1976). This presumption results in a heavy burden being placed on the assailant. State v. Brown, supra; State Theatre Co. v. Smith, 276 N.W.2d 259 In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the United States Supreme Court held that withdrawal of blo......
  • Petition of Famous Brands, Inc., No. 14269
    • United States
    • South Dakota Supreme Court
    • February 16, 1984
    ...and said intention is to be ascertained by the court primarily from the language expressed in the statute. State Theatre Co. v. Smith, 276 N.W.2d 259, 263 (S.D.1979); State v. Williamson, Page 885 87 S.D. 512, 515, 211 N.W.2d 182, 183 (1973). In applying legislative enactments, we must acce......
  • Request a trial to view additional results
29 cases
  • Canton Lutheran Church v. SOVIK, MATHRE, ETC., Civ. No. 79-4068.
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • February 13, 1981
    ...standard" for unconstitutionality as South Dakota. See Phillips v. ABC Builders, Wyo., 611 P.2d 821 (1980). State Theater v. Smith, 276 N.W.2d 259 (S.D.1979). Matter of Certain Territorial Electric Boundaries v. Northwestern Public Service Company, 281 N.W.2d 65 (S.D.1979). Aberdeen Ed......
  • Wegleitner v. Sattler, No. 20211
    • United States
    • Supreme Court of South Dakota
    • February 18, 1998
    ...had been in effect for 50 years and withstood an identical challenge eighteen years earlier), overruling State Theatre Co. v. Smith, 276 N.W.2d 259 21 Mo.Ann.Stat. § 537.053 (West 1988) provides: 1. Since the repeal of the Missouri Dram Shop Act in 1934 (Laws of 1933-34, extra session, page......
  • State v. Neville, No. 13260
    • United States
    • Supreme Court of South Dakota
    • December 2, 1981
    ...(S.D.1976). This presumption results in a heavy burden being placed on the assailant. State v. Brown, supra; State Theatre Co. v. Smith, 276 N.W.2d 259 In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the United States Supreme Court held that withdrawal of blo......
  • Petition of Famous Brands, Inc., No. 14269
    • United States
    • South Dakota Supreme Court
    • February 16, 1984
    ...and said intention is to be ascertained by the court primarily from the language expressed in the statute. State Theatre Co. v. Smith, 276 N.W.2d 259, 263 (S.D.1979); State v. Williamson, Page 885 87 S.D. 512, 515, 211 N.W.2d 182, 183 (1973). In applying legislative enactments, we must acce......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT