Tillo v. City of Sioux Falls, No. 10289

• Court: Supreme Court of South Dakota
• Writing for the Court: ROBERTS
• Citation: 82 S.D. 411,147 N.W.2d 128
• Parties: John TILLO, Mrs. Ralph Fjellin, and Harry W. Roberts, on behalf of themselves and all other interested persons similarly situated, Plaintiffs and Respondents, v. CITY OF SIOUX FALLS, a Municipal Corporation, V. L. Crusinberry, Mayor, and as an individual, Earl McCart, Commissioner, and as an individual, and David A. Witte, Commissioner and as an individual, Defendants and Appellants.
• Docket Number: No. 10289
• Decision Date: 16 December 1966

Page 128

147 N.W.2d 128 82 S.D. 411 John TILLO, Mrs. Ralph Fjellin, and Harry W. Roberts, on
behalf of themselves and all other interested
persons similarly situated, Plaintiffs
and Respondents,
v.
CITY OF SIOUX FALLS, a Municipal Corporation, V. L.
Crusinberry, Mayor, and as an individual, Earl McCart,
Commissioner, and as an individual, and David A. Witte,
Commissioner and as an individual, Defendants and
Appellants. No. 10289. Supreme Court of South Dakota. Dec. 16, 1966.

[82 S.D. 412] Paul E. Mundt, John P. McQuillen, Sioux Falls, for defendants and appellants.

Christopherson, Bailin, Wilds & Bailey, Sioux Falls, for plaintiffs and respondents.

ROBERTS, Judge.

On March 15, 1965, the City of Sioux Falls amended its 1950 Revised Zoning Ordinance to rezone certain lots in Wallner's

Page 129

Addition. It changed the classification of portions of two lots from a 'D' two family dwelling district to 'F' local commercial district, portions of two lots from a 'C' single family dwelling district[82 S.D. 413] to 'F' local commercial district, and three lots from a 'C' single family dwelling district to 'D' two family dwelling district. The use district map on file with the Revised Zoning Ordinance was amended to include the rezoned property in an 'F' local commercial district and 'D' two family dwelling district.

Plaintiffs who own and reside on properties near the rezoned area made application to the Circuit Court for Minnehaha County for a writ of prohibition alleging that notwithstanding the filing of proper protest petitions the City Commission intended to permit the amendatory ordinance to become effective. An alternative writ of prohibition was made returnable March 24, 1965, commanding defendants to desist and refrain from giving effect to such ordinance and to show cause why the writ should not be made permanent. Defendants moved to dismiss the writ for the reasons that the application therefor stated no grounds for its issuance and that a municipality cannot be prohibited from amending its zoning ordinances. The court denied the motion, but modified its writ to permit publication of the ordinance.

It appears from an analysis of respondents' brief that they challenge the validity of the rezoning ordinance on the grounds, namely, (1) that the changes in the zoning were not in accordance with a comprehensive plan; (2) that there were no changed conditions justifying a rezoning; (3) that property had been purchased with the intention to use it for purposes permitted under existing regulations; (4) that the rezoning ordinance was not designed to promote the objectives of the enabling statute; and (5) that such ordinance constitutes illegal 'spot zoning'.

It appears from a map in evidence considered in connection with the testimony of the city engineer and the city planning director that the area of the subject property is not exclusively residential. The four lots rezoned 'F' local commercial front south on 37th Street and areas south of that street are zoned light industrial and local commercial. The area west of these four lots is zoned local commercial. The lots rezoned 'D' two family dwelling bound south on 37th Street. The areas west and north are zoned 'C' single family dwelling and two areas west are zoned 'D' two family dwelling and 'F' local commercial.

[82 S.D. 414] Zoning by municipalities is authorized under the provisions of SDC 45.26 '(f)...