Any argument that the ordinance is not ambiguous belies the reality that the plain language of the ordinance results in more than one reasonable understanding of the PUD requirements. A critical factor in balancing equities is that the party being enjoined knew that he was violating the covenant. (citing Foley, 89 SD at 166, 230 NW2d at 479 (stating [a]n additional factor that the court should consider is the state of mind of the party against whom the mandatory injunction is sought)). Modifications of customary district regulations may be made to accommodate PUDs, but overall population densities may not be modified to accommodate the development. Alternatively, City can require building permit applicants to apply for a variance, where the entirety of the proposed two-story structure does not meet the necessary 12-foot setback requirement . require the homeowners to make the house smaller or the lot bigger. In its memorandum decision regarding the issuance of the writ of mandamus, the trial court found City had no authority under its own ordinances to issue the building permit, but granted the relief prospectively, allowing the addition to remain in place. Copyright 2022, Thomson Reuters. [2002 SD 74], South Dakota Supreme CourtAppeal from the Circuit Court of The Fourth Judicial CircuitLawrence County, South DakotaHon. Please try again. 3. [12.] See also Block v. Bartelt, 1998 SD 65, 14, 580 NW2d 152, 155 (acknowledging that motion for appellate attorney fees under SDCL 15-26A-87.3 is reliant on the statutory authority to obtain attorneys fees in certain types of cases under SDCL 15-17-38); Matter of Estate of OKeefe, 1998 SD 92, 17, 583 NW2d 138, 142 (stating attorney fees can only be awarded if provided by contract or if authorized statutorily). 4.Landmark and Spring Creek have experience with the appropriate steps to follow. [T]he structure was in place as of the time of hearing . [9.] [13.] Dist. By removing the population density requirements for agriculture districts, the very nature and customary uses of the districts become unpractical. 3.Customary district regulations concern requirements for such things as sidewalks and allowable space between residences. [M]andamus will not lie to undo an act done in violation of a public or official duty[.]. ] . A critical factor in balancing equities is that the party being enjoined knew that he was violating the covenant. Sch. 32 n10. The trial court stated that it refused to order demolition of Viles addition because much of the construction was complete and Viles had never been party to the suit by Hentz against City. The trial court found City had incorrectly determined that the addition was in compliance with City ordinances; thus, Hentzs writ of mandamus was issued. ] When such courts, officers, boards, or tribunals have jurisdiction over the subject matter and of the party, their action will be sustained unless in their proceedings they did some act forbidden by law or neglected to do some act required by law. Id. ] City of Sioux Falls v. Johnson, 2001 SD 108, 27, 632 NW2d 849, 856 (citing SDCL 15-26A-87.3) (emphasis in original). [M]andamus will not lie to undo an act done in violation of a public or official duty[. Nelson v. South Dakota State Bd. Anyone who wishes to set off fireworks outside of city limits should be aware of the conditions and take necessary safety precautions as well as being aware of restrictions. 1.The Spearfish ETJ Planning Commission is an advisory commission appointed by the Spearfish City Council and the Lawrence County Commission to oversee planning and zoning matters within the three-mile zone surrounding the Spearfish City borders pursuant to SDCL 11-6-21. Both City and County must approve any actions by Commission. The disputed property may be rezoned as a residential district compatible with the population density necessary to support the PUD.4 While Landmark's argument that the PUD ordinances were enacted to eliminate the necessity of rezoning for projects such as the Spring Creek development is logical, the ordinances which have been enacted do not evidence such an intent or achieve such a result. id. The email address cannot be subscribed. However, in oral argument before this Court, Petitioners switched positions and suggested that the ordinance was unambiguous and a plain reading of the ordinance limits the population density of a PUD constructed on A-1, general agriculture property to one dwelling per forty acres.
This property is zoned A-1, general agriculture. See also 83 AmJur2d Zoning and Planning 698 (1992). . SPEARFISH, S.D. Donna Hentz (Hentz) petitioned the trial court for a writ of mandamus commanding the City of Spearfish (City) to comply with its zoning ordinances. A critical factor in balancing equities is that the party being enjoined knew that he was violating the covenant. ] of Adjustment, 1998 SD 43, 14 n7, 578 NW2d 566, 569 n7, we acknowledged that it was improper to order city to remove the building of another pursuant to a writ of certiorari brought by a neighbor. Donna Hentz (Hentz) petitioned the trial court for a writ of mandamus commanding the City of Spearfish (City) to comply with its zoning ordinances. 2. City Ordinance 356, Section 3(D)(2), regarding side setbacks states, in pertinent part, that [f]or dwellings more than one and one-half (1 ) stories, there shall be a side setback of not less than twelve (12) feet., 3. Hentz argued that this case is inapplicable because mandamus compels an unperformed ministerial duty[,] whereas certiorari reviews a performed judicial or official duty. 14 AmJur2d, Certiorari, 7 (2000).. John S. Peters, Jerry Boyer, the John H. Esling Trust,2 and People for Responsible and Orderly Development of Lawrence County (collectively referred to as Petitioners) filed a petition for a writ of certiorari with the trial court alleging Commission, City and County exceeded their authority and jurisdiction in approving the proposed PUD. Dist. The trial court's conclusion ETJ Ordinance 4.10.1 was ambiguous as a matter of law was proper. Hentz appeals the following issue: [6.] ] State v. Lehman, 45 SD 394, 187 NW 720, 721 (1922). (finding knowledge existed). The developers next sought a change in zoning from A-1 to S-R (suburban residential). In Hamerly v. City of Lennox Bd. We said: The last factor to guide a court in issuing an injunction is the balancing of the equities, or what is known as the relative hardship test. (citing Foley v. City of Yankton, 89 SD 160, 165-66, 230 NW2d 476, 479 (1975)). Su [ word/_rels/document.xml.rels ( 1O0w$C Pj!u"%ZEdm+k Considered on Briefs April 22, 2002Opinion Filed 6/26/2002. [6.] City Ordinance 356, Section 3(D)(2), regarding side setbacks states, in pertinent part, that [f]or dwellings more than one and one-half (1 ) stories, there shall be a side setback of not less than twelve (12) feet. ETJ Planning Ordinance 4.10.1 provides: A planned residential development, occupying three (3) acres or more shall be permitted in any A-1, PF or SRD District by special permit. Breaking News; breaks first on the NewsCenter1 APP. Ass'n v. State, 519 N.W.2d 334, 335 (S.D.1994); King v. John Hancock Mut. GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and ZINTER, Justices, concur. . ZtMrz 7 word/document.xml=]oHhplRH/2a{(e"$ey.po?/nR"%~?A8=/3][_73FoqxYc7Bt7zg(./C{Vx&v2\_>yr !OG+.`mErm7:oEdN=%{{ x7[+WG+l ;
Wv4*qk0'c7`KkC^>(Xb: dL Y[M4)f[oF#v~;X"QnetC!K(Jx>},_V`]/jdnyx/. (citing Western Surety Co. v. Mydland, 85 S.D. This limitation on the scope of modifications which may be made to accommodate PUDs is consistent with the general provisions of the zoning regulations which divide districts based on population and use. [2.] . . Ambiguity also exists when the literal meaning of legislation leads to an absurd or unreasonable conclusion. Because this matter was presented to the trial court on certiorari, our scope of review is limited to the questions of whether the inferior courts, officers, boards, and tribunals had jurisdiction and whether they have regularly pursued the authority conferred upon them. [3.] Id. . It interpreted the ordinance to limit residential density for PUDs in an A-1, general agriculture district to one dwelling per forty acres. Based on our conclusion that ETJ Planning Ordinance 4.10.1 is ambiguous and our subsequent construction of the ordinance, we conclude Commission, City and County exceeded their authority and jurisdiction by approving the proposed PUD. The intent of the zoning regulations must be ascertained and considered when construing an ordinance. . Health Serv., Inc., 508 NW2d 892, 894 (SD 1993). We have said that the Legislature contemplated the granting of appellate attorney fees only where such fees are permissible at the trial level. ] City of Sioux Falls v. Johnson, 2001 SD 108, 27, 632 NW2d 849, 856 (citing SDCL 15-26A-87.3) (emphasis in original). We have said that the Legislature contemplated the granting of appellate attorney fees only where such fees are permissible at the trial level. Id. See also Block v. Bartelt, 1998 SD 65, 14, 580 NW2d 152, 155 (acknowledging that motion for appellate attorney fees under SDCL 15-26A-87.3 is reliant on the statutory authority to obtain attorneys fees in certain types of cases under SDCL 15-17-38); Matter of Estate of OKeefe, 1998 SD 92, 17, 583 NW2d 138, 142 (stating attorney fees can only be awarded if provided by contract or if authorized statutorily). Hentz has not demonstrated that specific statutory authority entitles him to appellate attorney fees. Therefore, no appellate attorney fees are allowed in this appeal. N _rels/.rels ( j0@QN/c[ILj]aGzsFu]U
^[x 1xpf#I)Y*Di")c$qU~31jH[{=E~ at 33. Its power lies in its expediency; its precision in its narrow application. The PUD was originally proposed as a subdivision and the developers sought a zoning change from A-1 (general agricultural district) to R-R (rural residential district). .
. City disagreed regarding Hentzs interpretation of the set-back requirements, so Hentz petitioned the trial court for a writ of mandamus. GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and ZINTER, Justices, concur. She contends that she is entitled to have the City do that which they are duty bound to do . [1.] . [15.] of Dentistry, 464 N.W.2d 621, 624 (S.D.1991). [7.] The interpretation of an ordinance presents a question of law which we review de novo. Considered on Briefs April 22, 2002Opinion Filed 6/26/2002, [1.] Donna Hentz (Hentz) petitioned the trial court for a writ of mandamus commanding the City of Spearfish (City) to comply with its zoning ordinances. The court issued the writ of mandamus, but did not order the removal of the addition. Hentz appeals. We affirm., [2.]
The term is not applied to A-1 general agriculture property anywhere in the comprehensive zoning plan other than the disputed final sentence of 4.10.1. . ] of Adjustment, 1998 SD 43, 14 n7, 578 NW2d 566, 569 n7, we acknowledged that it was improper to order city to remove the building of another pursuant to a writ of certiorari brought by a neighbor. ] Additionally, exceptions to general provisions of an ordinance must be strictly, but reasonably construed. [1]. It may initiate an amendment to the section . Finally, Hentz requested that her attorney fees be awarded. ] Hentz argues that the lower court did not have the right to prospectively foreclose the possibility of seeking specific types of relief. Similarly, park forest districts were established to provide the County with an area to be preserved for its natural beauty, resources and open character. ETJ Planning Ordinance 3.2.1. See Save Centennial Valley Ass'n, Inc., 284 N.W.2d at 457. The purpose of the zoning districts is to be gathered from the whole act, and where a word or term is susceptible to two constructions, a meaning must be ascribed which carries out the purpose of the act. Id. . PUDs were established as an alternative method of development and are intended to encourage imaginative solutions for development problems, not to abolish population density limitations. Our review of this case is limited to pleadings and papers transmitted from the circuit court because no transcript was included as part of the record before us. . Alternatively, City can require building permit applicants to apply for a variance, where the entirety of the proposed two-story structure does not meet the necessary 12-foot setback requirement . 3-4 n.2 points out that the developers again tried, unsuccessfully, to change the zoning to Suburban Residential in September, 1996, and to Park Forest in December, 1996. According to Appellees, City approved the proposals but County refused to do so. 2.The John H. Esling Trust owns property adjoining the proposed PUD. Exceptions extend only as far as their language fairly allows, with all doubts being resolved in favor of the general provision. ETJ Planning Ordinance 4.10.1. SABERS, AMUNDSON, KONENKAMP, and GILBERTSON, JJ., concur. The trial court found City had incorrectly determined that the addition was in compliance with City ordinances; thus, Hentzs writ of mandamus was issued. Donna HentzPlaintiff and Appellant,v.The City of Spearfish, Department of Public Works, Office of Planning and ZoningDefendant and Appellee.[2002 SD 74], South Dakota Supreme CourtAppeal from the Circuit Court of The Fourth Judicial CircuitLawrence County, South DakotaHon. The regulations established in this section are intended to provide optional methods of land development which encourage more imaginative solutions to environmental design problems, such as cluster planning. Hentz argued that this case is inapplicable because mandamus compels an unperformed ministerial duty[,] whereas certiorari reviews a performed judicial or official duty. 14 AmJur2d, Certiorari, 7 (2000). [21.] . In their brief on appeal, Petitioners argued that the emphasized language is ambiguous. e [Content_Types].xml ( OO0H|UPS{\dO6B6%)y2NdofWjw Sx5[Ab7*@*HR$`E| GG+n!htwKl2F,%Q56e&zGVn*R{\$AD#,uW^.,)6;8}h >%DdMUnC.zC! They are an exception to the general zoning provisions because of their potential incompatibility with existing development. Id. We agree with the trial courts following statement in its Memorandum Opinion: City has two choices. Additionally, in Harksen v. Peska, 1998 SD 70, 27, 581 NW2d 170, 175, a landowner built a cabin that violated covenants on the land. Spearfish city ordinance states that no person may sell or cause to be sold, discharge or cause to be discharged, any pyrotechnics or fireworks of any description whatsoever within the city. See Olsen v. City of Spearfish, 288 N.W.2d 497, 500 (S.D.1980). The [c]ourt will not require this of property owners who have proceeded in good faith and who have not been joined in this action. Words and phrases in the ordinance must be given their plain meaning and effect and, if the language is clear, certain and unambiguous, our only function is to declare the meaning of the ordinance as expressed. As required by the ETJ Planning Ordinances, Landmark requested Commission's approval of a planned unit development (PUD), Spring Creek Ranch, to be constructed on the tract of land at issue in this appeal. Hentz argues that the lower court did not have the right to prospectively foreclose the possibility of seeking specific types of relief. ]
[11.] . v. Fletcher, 66 SD 500, 287 NW 497, 498 (1939) (stating mandamus is not the proper remedy to compel the undoing of [a completed act]). In this case, the City has already issued the building permit to Viles, and she completed the construction of the addition pursuant to the permit issued. Since the construction was completed prior to the courts ruling in this case, mandamus is the inappropriate remedy to undo the project.. Hentz and her attorney contacted City officials to complain about the sight obstruction and about a violation of the set back ordinance. 172, 179 N.W.2d 3, (1970)). [19.] [9.] The only other reference to residential districts in the ETJ Planning Ordinances is in 3.1.5(A) to describe suburban residential, rural residential and park-forest residential property.
E. James Hood Suzanne M. Dardis of Hood & Nies Spearfish, South DakotaAttorneys for defendant and appellee. . The remainder of the tract was designated as green space for developing walking, biking, and cross-country skiing trails, with at least fifty percent of the green space slated as open space, consistent with the requirements for PUDs. Landmark and Spring Creek argue the emphasized language is unambiguous and a plain reading of the ordinance allows modification of the population density of A-1, general agriculture property to accommodate a PUD. Landmark and Spring Creek Ranch appeal. The proposed PUD consisted of fifty-five single family residence estates, three clusters of single family attached residences containing twenty units, one bed and breakfast inn with six to eight guest rooms, and three to six duplex cabin units. See, e.g., ETJ Planning Ordinance 3.1.5. Since the construction was completed prior to the courts ruling in this case, mandamus is the inappropriate remedy to undo the project. See also H & W Contracting, LLC v. City of Watertown, 2001 SD 107, 24, 633 NW2d 167, 174 (citing Willoughby, 1998 SD 68 at 7, 581 NW2d at 168) (stating petitioners must demonstrate a clear legal right to performance of the specific duty sought to be compelled and opposing party must have a definite legal obligation to perform that duty). See Id. 192 (1892)). On June 18, 2001, City issued the permit after officials determined the application met all legal requirements. [18.] Annual Impala Rally returns to Spearfish amid pandemic pause, Trees in Rapid City parks targeted in acts of vandalism, Military to see raises, housing allowance bump if NDAA passes as written, Verizon experiencing an outage in Rapid City, Head-on crash on Sheridan Lake Road result of failure to yield, One injured during I-90 two-vehicle, one-motorcycle crash, Casino Fire: Fast moving grassfire moves across Oglala Lakota County, Pennington County Administration Building workers receive 4-day work week, Days of '76 Rodeo to celebrate 100th Anniversary, Belle Fourche falls to Winner-Colome and Gregory at 7B Regional Tournament, Comic-Con returns in full force with costumes, crowds, Spearfish offers residents alternative ways to keep cool while splashpad is closed, Rapid City Brewery brings awareness to turtles. (quoting State v. Almond, 511 NW2d 572, 574 (SD 1994)).. (citing State v. State Board of Assessment and Equalization, 3 S.D.