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. We agree with the trial court's construction of ETJ Planning Ordinance 4.10.1 that a PUD is subject to the population density limitations applicable to the district in which it is proposed. Utilizing a writ of mandamus to obtain relief is a unique remedy, which has been described as follows: The nature of a writ of mandamus is an extraordinary remedy that will issue only when the duty to act is clear: Mandamus is a potent, but precise remedy. Its power lies in its expediency; its precision in its narrow application. It commands the fulfillment of an existing legal duty, but creates no duty itself, and acts upon no doubtful or unsettled right. To prevail in seeking a Writ of Mandamus, the petitioner must have a clear legal right to performance of the specific duty sought to be compelled and the respondent must have a definite legal obligation to perform that duty.. Baker, 2001 SD 49 at 16, 625 NW2d at 269 (emphasis in original) (citations omitted). 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). In the case at hand, issuing the writ was not error because City clearly had a legal obligation to comply with its own ordinances. See Baker, 2001 SD 49 at 16, 625 NW2d at 269. In addition, there is precedent establishing that denying injunctions that would require removal or destruction of a building is justified under certain circumstances. We then noted that knowledge is a crucial factor in the relative hardship test and that some courts will not apply this test if one deliberately builds a structure in violation of restrictions. . 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. [1] Hentz resides next door to Mary Kay Viles and Joe DeSiena (Viles) in City. Viles applied to City for a building permit that would allow her to construct a multi-story addition onto her home. City initially denied the permit because it violated City Ordinance 356, Section 3(D)(2), which requires a 12-foot side setback for homes over one and one-half stories high. The ordinance's language indicates that the customary district regulations may be waived for a proposed PUD but overall population density requirements may not.3 The ordinance does not make clear whether the population density for a proposed PUD is to be measured by the density governing the three districts which specifically allow PUDs (A-1, general agriculture, park forest, or suburban residential) or the three zoning districts specifically referred to as residential districts (suburban residential, rural residential, or park-forest residential) in other zoning ordinances. Stay up-to-date with FindLaw's newsletter for legal professionals. Exceptions extend only as far as their language fairly allows, with all doubts being resolved in favor of the general provision. In addition, there is precedent establishing that denying injunctions that would require removal or destruction of a building is justified under certain circumstances. 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. 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. Our interpretation of ETJ Planning Ordinance 4.10.1 is consistent with the zoning purposes of both A-1, general agriculture districts and PUDs without sacrificing the purpose of one district at the expense of the other. 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. 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. This is especially so where, as here, the property owner is not even a party to the action. Although we agree with Hentzs argument that this case is somewhat distinguishable, the inequity resulting from the destruction of property of a non-party is the same.[3]. 2.

] City of Sioux Falls v. Johnson, 2001 SD 108, 27, 632 NW2d 849, 856 (citing SDCL 15-26A-87.3) (emphasis in original). Id. She contends that she is entitled to have the City do that which they are duty bound to do . The applicable standard of review for this issue is the abuse of discretion standard. Baker v. Atkinson, 2001 SD 49, 12, 625 NW2d 265, 269 (stating circuit court has discretion in granting a writ of mandamus and acknowledging the standard of review is abuse of discretion) (citing Willoughby v. Grim, 1998 SD 68, 6, 581 NW2d 165, 167; Brown v. City of Yankton, 434 NW2d 376, 378 (SD 1989)). [A]n abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence. Id. . ] 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). V3ioTb|s_6OmTiTw|5|6s7'=,[K;Oo[UG[4J75,D/f)i:&De-;RuRs Q=[Cw1HC/8(!,-dQC@Z;:?e/!`vz.cImGiR"&Dh izTB_WdDC6&'l_ (L#*C 7QJ0!~K PK ! (citing State v. State Board of Assessment and Equalization, 3 S.D. [4.] [17.] This wide range of possible population densities allowed by the ordinance's language results in an ambiguity. 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. [11.] [7.] 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. ] Beyond the specific exception for modifications of customary district regulations, PUDs are subject to the general provisions of the zoning ordinances, including the requirements for rezoning districts to adjust population density, to minimize the potential for incompatibility with existing developments. In addition to following the law, be thoughtful of your neighbors and community, said Police Chief Curt Jacobs. . . 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. Residential areas thus established would be characterized by a unified building and site development program, open space for recreation, and the provision for commercial, religious, educational and cultural facilities which are integrated with the treatment. See Olsen v. City of Spearfish, 288 N.W.2d 497, 500 (S.D.1980). Donald D. Richards Spearfish, South DakotaAttorney for plaintiff and appellant. It further concluded Commission, City and County exceeded their respective authority and jurisdiction by approving a development which exceeded the allowed population density. 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). of South Dakota Supreme Court opinions. Additionally, exceptions to general provisions of an ordinance must be strictly, but reasonably construed. 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. 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.

] State v. Lehman, 45 SD 394, 187 NW 720, 721 (1922). 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/. Sch. This property is zoned A-1, general agriculture. 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. 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.

This is especially so where, as here, the property owner is not even a party to the action. Although we agree with Hentzs argument that this case is somewhat distinguishable, the inequity resulting from the destruction of property of a non-party is the same.[3]. [21.] 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. Viles applied to City for a building permit that would allow her to construct a multi-story addition onto her home. A logical reading of the ordinance suggests that the population density limitations apply to those specific districts in which PUDs are allowed. . . [6.] ]A[n ordinance] or portion thereof is ambiguous when it is capable of being understood only by reasonably well-informed persons in either of two or more senses. In re Famous Brands, Inc., 347 N.W.2d 882, 886 (S.D.1984) (citations omitted).

Id. 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). [1.] Dist., 445 NW2d 308, 311 (SD 1989) (stating mandamus is inapplicable to undo an act already done in violation of public or official duty); Beresford Indep. Su [ word/_rels/document.xml.rels ( 1O0w$C Pj!u"%ZEdm+k Ass'n v. State, 519 N.W.2d 334, 335 (S.D.1994); King v. John Hancock Mut. Dist., 445 NW2d 308, 311 (SD 1989) (stating mandamus is inapplicable to undo an act already done in violation of public or official duty); Beresford Indep. 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. E. James Hood Suzanne M. Dardis of Hood & Nies Spearfish, South DakotaAttorneys for defendant and appellee. City initially denied the permit because it violated City Ordinance 356, Section 3(D)(2), which requires a 12-foot side setback for homes over one and one-half stories high. Nelson v. South Dakota State Bd. (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)). The trial court granted Petitioners' petition for certiorari and allowed Spring Creek Ranch to intervene in the matter. Download the app on your iPhone or Android device today for breaking news and weather alerts in the palm of your hand. . Following oral arguments, the trial court concluded the zoning ordinance on which Commission, City and County relied in approving the proposed PUD was ambiguous. Similarly, in this case the hardship of requiring Viles to tear down the addition outweighs the detriment to Hentz. See Baker, 2001 SD 49 at 16, 625 NW2d at 269. It may initiate an amendment to the section . E. James Hood Suzanne M. Dardis of Hood & Nies Spearfish, South DakotaAttorneys for defendant and appellee. of Dentistry, 464 N.W.2d 621, 624 (S.D.1991).

A critical factor in balancing equities is that the party being enjoined knew that he was violating the covenant. Therefore, no appellate attorney fees are allowed in this appeal. The trial court found City had incorrectly determined that the addition was in compliance with City ordinances; thus, Hentzs writ of mandamus was issued. The court, however, gave City an option of either amending the ordinance section or requiring applicants to apply for variances if a proposed two-story structure fails to meet the required setback. 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. Sch. Dist.

[10.] [2] Viles subsequently resubmitted her application and a proposal that left a 7-foot setback on the first level of the home and a 12-foot setback for the second story. On June 18, 2001, City issued the permit after officials determined the application met all legal requirements., [3.] . 2.The John H. Esling Trust owns property adjoining the proposed PUD. ]f?YB$Fgpe }=A$`Q1iGq{!s . id.

The dispute between City and Hentz arises out of an unlawfully issued building permit. Hentz argues that the lower court did not have the right to prospectively foreclose the possibility of seeking specific types of relief. Dist. 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)). 338, 53 N.W. Warren G. Johnson, Judge. The only exception to this rule is if the discharge of fireworks is a part of a professional display operated by a licensed pyrotechnic operator under the procedure set forth in the International Fire Code. Hentz has not demonstrated that specific statutory authority entitles him to appellate attorney fees. See also Crowley v. Spearfish Indep. . 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 . 422, 426, 92 N.W.2d 922, 924 (1958)). 3)T.% By removing the population density requirements for agriculture districts, the very nature and customary uses of the districts become unpractical. 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. [15.] [9.] This interpretation is consistent with the purpose of the zoning regulations. .

ETJ Planning Ordinance 4.10.1.

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. 3.Customary district regulations concern requirements for such things as sidewalks and allowable space between residences. [1]. . Baker, 2001 SD 49 at 16, 625 NW2d at 269 (emphasis in original) (citations omitted). at 31, 32.

There, we determined an injunction requiring the purchaser to tear down the cabin was too harsh. Id. Copyright 2022, Thomson Reuters. . Baltodano v. North Cent. The intent of the zoning regulations must be ascertained and considered when construing an ordinance.

(citing Lien v. Rowe, 77 S.D.

In Hamerly v. City of Lennox Bd. 2001 SD 49 at 16, 625 NW2d at 269 (emphasis in original) (citations omitted). ] Matter of Sales Tax Refund Applications, 298 N.W.2d 799, 803 (S.D.1980). 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. 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. The applicable standard of review for this issue is the abuse of discretion standard. ]

[T]he structure was in place as of the time of hearing . 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. See also 83 AmJur2d Zoning and Planning 698 (1992). . Modifications of customary district regulations may be made to accommodate PUDs, but overall population densities may not be modified to accommodate the development. We affirm. . Having determined the ordinance to be ambiguous, we must now determine the proper construction to be given to it. Viles began building her addition, which was estimated to cost $130,000. 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. (quoting State v. Almond, 511 NW2d 572, 574 (SD 1994)).

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. See Olsen, 288 N.W.2d at 499. [19.] f?3-]T2j),l0/%b [13.] . Similarly, in this case the hardship of requiring Viles to tear down the addition outweighs the detriment to Hentz. 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. Since the construction was completed prior to the courts ruling in this case, mandamus is the inappropriate remedy to undo the project. See Matter of Estate of Gossman, 1996 SD 124, 6, 555 N.W.2d 102, 104 (citing Sioux Valley Hosp. Viles began building her addition, which was estimated to cost $130,000. After construction was underway, Hentz determined the addition obstructed her view of Lookout Mountain. Hentz and her attorney contacted City officials to complain about the sight obstruction and about a violation of the set back ordinance. City disagreed regarding Hentzs interpretation of the set-back requirements, so Hentz petitioned the trial court for a writ of mandamus.. 32 n10. In Harksen, despite the builders knowledge that he was in violation of the covenant, we said [i]t would be inequitable to require the destruction of a $100,000 summer residence when there really is no burden on Harksen. Id. Id. 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.. [3.] [11.] [1] Hentz resides next door to Mary Kay Viles and Joe DeSiena (Viles) in City. [5.]

[1.] 32 n10. We have said that the Legislature contemplated the granting of appellate attorney fees only where such fees are permissible at the trial level. For instance, A-1, general agriculture districts were established to provide a district that will: (1) allow suitable areas of Lawrence County to be retained in agriculture uses, (2) prevent scattered non-farm development, and (3) secure economy in governmental expenditures for public services, utilities and schools. ETJ Planning Ordinance 3.1.1. When a term is not defined, it must be construed according to its accepted usage, and a strained, unpractical or absurd result is to be avoided. Additionally, in Harksen v. Peska, 1998 SD 70, 27, 581 NW2d 170, 175, a landowner built a cabin that violated covenants on the land. There, we determined an injunction requiring the purchaser to tear down the cabin was too harsh. 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)). ] State v. Lehman, 45 SD 394, 187 NW 720, 721 (1922). See also Crowley v. Spearfish Indep. . Cf. [A]n abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence. Id. Viles have proceeded in reliance on a building permit issued by the appropriate authority . . To now obtain a 12-foot setback on the first story would require demolition of the foundation and footings and the pouring of new footings and foundation. 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., [12.]