Tillo v. City of Sioux Falls

• Decision Date: 16 December 1966
• Docket Number: No. 10289,10289
• 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.
• Court: South Dakota Supreme Court

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.

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 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 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.

Zoning by municipalities is authorized under the provisions of SDC 45.26 '(f) or the purpose of promoting health, safety, morals, or the general welfare of the community'. SDC 1960 Supp. 45.2604 provides that a zoning ordinance shall take effect as other ordinances 'unless the referendum be invoked, or unless a written protest be filed with the auditor or clerk, signed by the owners of at least forty per cent of the aggregate area of the lots included in any proposed district and the lots or parts of lots within one hundred fifty feet from any part of such proposed district measured by excluding streets and alleys. 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.' SDC 1960 Supp. 45.2605 permits the amendment, supplement or change from time to time of regulations, restrictions and boundaries and in designating the procedure provides that the adoption shall be 'in the same manner and upon the same notice as required for the adoption of the original ordinance. The governing body may by ordinance require as a condition precedent to the introduction of any ordinance proposing changes in the zoning ordinance that there be first filed with the city auditor or clerk the written consent of the owners of not exceeding sixty per cent of the aggregrate area having the right of protest against such proposed ordinance if adopted * * * The referendum and the right of protest...