SD Supreme Courtroom Finds Standing on Enchantment for Aggrieved Property Proprietor in Variance Dispute

This put up was authored by Gregory Ahlsen, Jacob D. Fuchberg Touro Regulation Middle

In April 2018, the Lake County Fee (the “Board”) performed a public listening to regarding a variance and conditional use allow. The variance and conditional use allow (“CUP”) was sought by Hodne Houses, LLC as a part of a proposal to assemble a 5,760 square-foot constructing to retailer and show boats for Sodak Marina. The property on which the proposed constructing could be constructed lies within the LP-3 zoning district which has a 4,000 square-foot restrict for personal and business storing services. Moreover, laws for the LP-3 district require that there have to be a minimal setback of two ft on aspect yards and ten ft for rear yards for all properties. The proposed constructing exceeded the sq. footage restriction and violated the setback necessities. On April 17, 2018, the Board permitted the variance and CUP. Neighboring property proprietor Karen Dunham opposed each the variance and the CUP.

On Could 11, 2018, Dunham filed a petition difficult the Board’s approval of the variance and the CUP. The circuit court docket present in favor of the Board, figuring out that the Board had the right jurisdiction to grant or deny the variance and CUP, and that the variance and CUP have been granted in compliance with the zoning ordinance. Following the choice, Dunham appealed the circuit court docket’s determination to the Supreme Courtroom of South Dakota. On enchantment, the Supreme Courtroom discovered that the Board did not observe the two-prong check required by SDCL 11-2-53(2) (the “Statute”). The Courtroom discovered that the Board did not make sufficient findings that an “extraordinary and distinctive” state of affairs on the property owned by Hodne Houses, LLC existed. Moreover, the Courtroom discovered that the Board failed to think about whether or not a denial of the variance and CUP would create “peculiar and distinctive sensible difficulties” or “distinctive and undue hardship” on Hodne Houses. The Supreme Courtroom remanded the case to the circuit court docket.

On remand, the circuit court docket promptly remanded the matter to the Board to have the Board take into account the particular circumstances of the two-prong check required by the Statute. On July 21, 2020 the Board held a particular listening to relating to the circuit court docket’s order. At this listening to, Hodne Houses argued that the property was distinctive as a result of it was the one property in Lake County that was adjoining to an LP-3 zone and that Hodne Houses had an obligation to assemble a bigger constructing with the intention to promote two particular manufacturers of boats at Sodak Marina with the intention to keep away from distinctive and undue monetary hardship. Dunham asserted that the Board should not take into account the character of the marina’s enterprise in granting the variance as a result of it could be used for retail gross sales, which violated the LP-3 zoning laws. On September 1, 2020, the Board unanimously voted to seek out that Hodne Houses would endure peculiar and distinctive sensible difficulties if the variance was denied and that there was a rare and distinctive state of affairs for the lot.

On September 30, 2020, Dunham filed a second petition with the circuit court docket difficult the Board’s approval of the variance and CUP. In response, the Board filed a movement to dismiss, asserting that Dunham lacked standing as a result of she was not harmed by the variance. In its movement, the Board claimed that the variance didn’t have an effect on Dunham as a result of it didn’t alter the aspect yard and setback requirement between the proposed constructing and her property. To show that she was aggrieved, Dunham claimed that the proposed outsized constructing would immediately intervene together with her use and delight of her property as a result of it could trigger drainage points and intervene together with her property’s entry to pure daylight. Ultimately, the circuit court docket granted the movement to dismiss as a result of it was discovered that Dunham lacked standing for lack of accidents.

Dunham appealed the circuit court docket’s determination to dismiss for lack of standing to the Supreme Courtroom. The Supreme Courtroom discovered that Dunham did have standing as a result of she correctly asserted in her unique petition for writ of certiorari that the Board’s determination to grant the variance and CUP would trigger her to expertise an absence of entry to sunlight and drainage points. After discovering that she had correct standing, the Supreme Courtroom reversed the circuit court docket’s dismissal and remanded the matter to deal with the deserves of Karen Dunham’s second petition.

Dunham v. Lake County Fee, 976 NW 2nd. 247 (SD 6/1/2022)

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