South Dakota Supreme Court defers to local interpretation of zoning ordinance

by Eric Christianson

Croell Redi-Mix v. Pennington County Board of Commissioners
(South Dakota Supreme Court, December 13, 2017)

Croell Redi-Mix owns and operates a quarry located in Pennington County, South Dakota. The quarry has been in operation since the 1970s and was acquired by Croell in 2015. Croell intended to expand the operation. After the quarry was opened, but before it was acquired by Croell, Pennington County adopted zoning ordinances. The quarry falls into the “A-1 General Agricultural District” which allows “temporary quarries” ,by right, and mining operations, provided that a construction permit is obtained.

In late 2015, working in consultation with staff from the Pennington County Planning Department, Croell submitted an application for a construction permit to expand its operations. On February 8, 2016 staff issued a recommendation that the permit be granted subject to 11 conditions. The Pennington County Planning Commission reviewed the report and approved the application subject to the recommended conditions that same day.

On February 10, 2016, the Pennington County Board of Commissioners received a letter signed by 37 area residents requesting an appeal of the approval of the permit. The Board of Commissioners held a special meeting on March 2 to consider the appeal. Opponents expressed concerns about the quarry’s expansion including: dust, traffic, availability of groundwater, runoff, and depreciation of property values. At a second hearing the board voted 4-1 to reverse the approval of the permit.

Croell appealed to the circuit court which reversed the Board of Commissioners decision finding:

  1. The residents who sent the letter did not have standing to appeal.
  2. The Commissioners misinterpreted their own ordinance in their decision.
  3. The Commissioners’ decision to deny the permit was arbitrary.

The Board of Commissioners appealed to the South Dakota Supreme Court which granted certiorari.

The Supreme Court reconsidered the three findings of the circuit court.

Standing to Sue Pennington County’s Zoning Ordinance states:

“Any action taken by the Planning Director in administering or enforcing Section 507(A) may be reviewed by the Pennington County Board of Commissioners upon the request of any person affected by such action.” [PCZO § 507(A)(7)(f)]

Croell argues, and the circuit court agreed that this right to appeal only extends to considerations of erosion and storm water control. The Supreme Court reads this passage differently, interpreting the word ‘administer,’ ‘affected,’ and ‘any’ above quite broadly:

PCZO § 507(A) is titled “Erosion and Storm Water Control,” the right to appeal under §507(A)(7)(f) extends to anyone “affected” by “any action taken by the Planning Director in administering . . . Section 507(A)[.]” (Emphasis added.) Noticeably absent from §507(A)(7)(f) is any language limiting the right to appeal to matters involving erosion and storm – water control. Thus, §507(A)(7)(f) provides a right to appeal any action taken by the Planning Director under §507(A). In this case, the action challenged is the Director’s issuance of a construction permit — i.e., the Director’s administering of §507(A)(3).

Because the individuals appealing would be affected by the zoning administrators decision, they have standing to appeal.

Statutory Interpretation Croell argues that the use of its property as a quarry is a permitted use in an A-1 General Agricultural district given that the statute permits temporary quarries and requires only a building permit for the “extraction of sand, gravel, or minerals.”

The County claims that Croell would need to obtain a seperate mining permit as required in the plain language of the ordinance which states, “no extraction of any mineral or substance […] shall be conducted without a Mining Permit.” Here the court identifies a question of statutory interpretation and supports the Commissioners’ interpretation. Further the Court cites the US Supreme Court’s opinion from Chevron v. Nat. Res. Def. Council (1984), which established the principle of “Chevron deference.” Chevron established the principle that courts will defer to the interpretation of those administering a statute as long as that interpretation is “based on a permissible construction of the statute.” In this case the South Dakota Supreme Court found that the Pennington Board of Commissioners interpretation was permissible.

Arbitrariness Because the Supreme Court found that the Board of Commissioners was able to consider more than erosion and storm water control in its decision making, the argument for arbitrariness is moot. The Board’s decision was based on evidence in the scope of its review.

The Supreme Court found that the circuit court erred in reversing the Commissioners’ decision.

Village junk vehicle ordinance broader than state traffic regulations, but validity of ordinance could not be determined

by Kaitlin Heinen

Village of North Hudson v. Randy J. Krongard
(Wisconsin Court of Appeals, March 12, 2013)

In November of 2011, the Village of North Hudson issued 2 citations to Randy Krongard for having 2 junk vehicles in plain view on his property, which was contrary to North Hudson Village Ordinance §§ 90-41 and 90-44. The vehicles were considered junk vehicles because they had expired registrations. In December, Krongard pleaded not guilty in municipal court; however, he did not appear at the scheduled trial, so the court entered default judgment against him. In March of 2012, Krongard moved to vacate the municipal court’s judgment because “90-44 is void, unlawful, and invalid as preempted, contrary to, and inconsistent with” Wisconsin state law.  His motion was denied. Krongard appealed to the circuit court, which also denied his motion, and then to the Wisconsin Court of Appeals. The Village argued that Krongard’s appeal was an improper one because Krongard should be prohibited from appealing a default judgment. However, Krongard appealed the order denying his motion to vacate the default judgment. So Krongard’s appeal was properly before the circuit court and the Wisconsin Court of Appeals.

Before the court, Krongard argued that the circuit court wrongly denied his motion because the judgment against him was void, since the Village’s junk vehicle ordinance was invalid based on its conflict with state traffic regulations. An ordinance regarding traffic regulation “must be in strict conformity with state law,” otherwise it will be preempted. Krongard asserted the conflict stemmed from the ordinance’s defining unregistered vehicles as junk vehicles and regulating unregistered vehicles on private property. Wis. Stat. § 340.01(25j) does not include unregistered vehicles in its definition of a “junk vehicle.” Instead it defines a “junk vehicle” as a “vehicle which is incapable of operation or use upon a highway and which has no resale value except as a source of parts or scrap” and a “vehicle for which an insurance company has taken possession of or title to if the estimated cost of repairing the vehicle exceeds its fair market value.” Also, state traffic regulations allow for vehicles to be parked on private property with the owner’s consent and only permit municipalities to regulate unregistered vehicles on highways. So Krongard held that the Wisconsin Court of Appeals must conclude the ordinance is invalid, rendering his judgment void.

The Village counter-argued that the state traffic regulations are concerned “with the licensing, regulation of, outfitting and operation of vehicles” and its ordinance is “concerned with the upkeep of private property,” which are “two completely different issues.” The Village also contended that its junk vehicle ordinance is not inconsistent with or contrary to the state’s definition of a junk vehicle.  The Village argued that, under Wis. Stat. § 340.01(25j), a vehicle is junk if it is not capable of legal operation on the highway, and an unregistered vehicle is incapable of legal operation on the highway and therefore constitutes a junk vehicle.  Finally, the Village contended that parking motor vehicles is different than storing vehicles on private property.

The Wisconsin Court of Appeals concluded that nothing in the state traffic regulations provides that a municipality can regulate unregistered vehicles on private property and that Wis. Stat. § 340.01(25j) defines a junk vehicle as one that is inoperable, not legally inoperable.  Therefore, the Village’s definition was broader than the traffic regulation. The ordinance requires owners of junk vehicles to notify and return the vehicle’s certificate of title to the Department of Transportation, but requires owners of unlicensed vehicles to keep their vehicles out of the public’s view. As such, the Village’s argument regarding the purpose of the ordinance and the ordinance’s language itself suggest that the ordinance is not a traffic regulation and the Village did not enact it pursuant to the power granted under the state traffic regulations.  Instead, it appears the ordinance may have been enacted using a different power, such as its zoning authority. However, because it could not be determined from the record whether the ordinance in question was a traffic regulation or part of a different regulatory scheme, the Wisconsin Court of Appeals reversed and remanded the order to the circuit court to determine the validity of the Village’s ordinance.

City’s interpretation of own ordinance entitled to deference

by Gary Taylor

Mertz v. City of Elgin, North Dakota
(North Dakota Supreme Court, July 21, 2011)

Melvin Mertz applied for a permit to build a fence on the lot line at the edge of his residential property in Elgin, North Dakota. Elgin’s city attorney opined the fence violated city ordinances that prohibited a structure from being built within seven feet of the lot line along a side yard. Elgin’s city council denied Mertz’s application based upon the city attorney’s opinion. The district court affirmed the denial by Elgin’s city council, stating the interpretation and application of the ordinances was reasonable.  Mertz appealed.

The North Dakota Supreme Court observed that the local governing body’s decision must be affirmed unless it acted arbitrarily, capriciously, or unreasonably, or if there is not substantial evidence supporting the decision. “The interpretation of a zoning ordinance by a governmental entity is a quasi-judicial act, and a reviewing court should give deference to the judgment and interpretation of the governing body rather than substitute its judgment for that of the enacting body.” The city attorney opined the proposed fence would violate city ordinances prohibiting the building of a structure within seven feet of the lot line of a side yard. A structure is, “Something constructed or built, or a piece of work artificially built up or composed of parts joined together in some definite manner.” The city attorney opined a fence is a structure, which meant a fence must be seven feet from the lot line, and the Elgin city council agreed with the interpretation.  The Court concluded based on the definition that it was reasonable for Elgin to decide a fence is a structure and prohibited within seven feet of the side yard lot line.

Mertz argued that if a fence is a structure, the ordinances lead to an absurd result where a fence can only be built seven feet from the lot line. The Court stated that Elgin has the authority to regulate and restrict the size of yards and locations of structures, and that Mertz had not proven there is no legitimate governmental purpose or that the ordinances are arbitrary.

Mertz also argued the Elgin city council acted without making findings on evidence, and there was not substantial evidence to support or justify its decision; however, the city council minutes showed the city council relied upon the city attorney’s opinion, and that opinion was available and contained the rationale of why the proposed fence would violate the ordinances. The record shows Elgin had on file Mertz’s permit application, a drawing of Mertz’s lot with the proposed fence, a statement of the zoning and planning commission that the members of the commission had no issue with the fence based upon a visual examination, the city attorney’s letter of his opinion based upon a reading of the ordinances, and a copy of the ordinances. The record supports the city council’s decision, and we can discern the rationale for the city council’s decision.

Mertz argued other residents in Elgin had structures within seven feet of their lot lines, and the drawing included with Mertz’s permit application showed his neighbor’s garage is twelve inches from the lot line. However, there was nothing on the record indicating whether the ordinances were in effect when these structures were built. From the record, the Court could not say Mertz’s permit application was arbitrarily denied while others were not prohibited from building within seven feet of the side yard lot line.

The Supreme Court affirmed the district court order affirming the decision by the Elgin city council.

Board of adjustment given substantial latitude in interpreting county ordinance

by Allison Arends

James C. Rule v. Iowa County Board of Adjustment
(Wisconsin Court of Appeals, March 18, 2010)

James Rule owned two parcels of land in the Town (township) of Dodgeville Iowa County, both of which were zoned A-1, Exclusive Agricultural. Quarrying operations are allowed in A-1 with a conditional use permit.  Rule operated a quarry operation on one of the parcels of land and planned to extend his operation to his adjacent property, but was required to first apply for a conditional use permit in order to begin mining. Before applying, Rule sought to determine whether the Board would waive one of the Iowa County Zoning ordinance provisions which stated, “active mining shall not take place within five hundred feet of any residential district or any structure used for dwelling purposes.”

Rule filed an application with the Board requesting a variance that allowed mining at least 200 feet from the residential district boundary or 500 feet from a residential dwelling. Rule’s interpretation of the ordinance was that the active mining had to be at least 500 feet from either the residential district boundary or a dwelling. Neighboring property owners objected to Rules application for two reasons, (1) the variance requested was a use variance, not an area variance, which the Board does not have authority to grant and (2) the ordinance dictates that active mining must be at least 500 feet from the boundary line of a residential district and not from the dwellings within the district.

At the hearing, the Board heard position statements from both parties as well as a legal opinion from the Iowa County attorney. The attorney concluded Rule’s petition to be for a use variance and therefore, in his opinion, the Board did not have authority to grant the permit. The attorney also noted that active mining, under the ordinance, must be a minimum of 500 feet from a residential district boundary line, not the dwellings within that district. Based on the attorney’s opinion the Board voted, “to deny the application for non-metallic mining within 500 feet of the residential district.” The circuit court affirmed the Board’s decision.

On appeal, Rule contested the Board and circuit court’s decisions that he sought a use variance instead of an area variance, and their construction of the 500-foot requirement. Rule argued that he was seeking an area variance because he was looking to only modify the “area restriction” created by the condition (4)(b) of the AB-1 subsection. The court first evaluated how much deference a county board of adjustment’s has in the interpretation of a county ordinance, and concluded that the board’s construction of the ordinance is lawful if it is reasonable and there is not a more reasonable interpretation.

In order to determine whether the Board erred in identifying Rule’s petition as a use variance, the court looked to the distinction between the two types of variances:

“A use variance is one that permits a use other than that prescribed by the zoning ordinance in a particular district. An area variance … has no relationship to a change of use. It is primarily a grant to erect, alter, or use a structure for a permitted use in a manner other than that prescribed by the restrictions of a zoning ordinance. Area variances usually modify such features as setbacks, frontage requirements, height, or lot size”

Because a use variance has more of an impact on a community than an area variance, the standards for obtaining a use variance are higher, and the property owner must show that, “in absence of a variance, no reasonable or feasible use can be made of the property.” the court found the Board’s decision, which identified Rule’s requested variance as a use variance, to be reasonable because, “the 500-foot requirement was intended to protect the neighboring residential properties from the significant impact of a mining operation and that this purpose distinguishes it from restricting on building heights and set backs, which are typically the subject of area variances.”

In response to Rule’s second claim, the court found that the Board was reasonable in its construction of the ordinance, which recognized that active mining must be at least 500 feet away from a residential district boundary line or any dwelling which is not located within a residential boundary line. The court found Rule’s construction of the ordinance unreasonable because the obvious purpose of the ordinance is to protect neighboring residences from the disturbances of quarry operation. The court found that it is reasonable to ensure that all dwellings in a residential district, even those that are not yet built, are protected by a 500-foot buffer zone.

A cul de sac is a street within the term’s ordinary meaning

by Gary Taylor

Allamakee County v. Schaumberg Living Trust
(Iowa Court of Appeals, February 24, 2010)

Schaumberg owns four lots in Harpers Highland Subdivision located in Allamakee County. The property is located at the intersection of Harpers Highland Lane and Chipmunk Lane.  The zoning district applicable to Harpers Highland Subdivision requires any residence to have a side-yard setback of ten feet, unless it is situated on a corner lot, in which case the side-yard setback increases to thirty feet.

During the summer of 2007, the county zoning administrator met with Schaumberg to discuss his plans for constructing a home on his property. After some disagreement between the two about the applicable setback requirements, the zoning administrator discussed the setback requirements with the county attorney.  They determined that Schaumberg’s property was a corner lot that required a front-yard setback of forty feet (abutting Harpers Highland Lane) and a side-yard setback of thirty feet (abutting Chipmunk Lane). As Schaumberg began to fill out the necessary paperwork for a building and septic permit the zoning administrator informed Schaumberg of the setback requirements. The building permit application was filled out to state the setback requirements, including stating the lot was a corner lot and the side-yard setback was thirty feet. Schaumberg signed the application, but Moody did not sign. The following month, Schaumberg began construction of his house, which did not comply with the side-yard setback requirements.  The zoning administrator sent Schaumberg a violation notice; however Schaumberg ignored it and continued construction.  Five months later the county filed an action in district court to stop construction and compel removal of any portion of the built structure that violated the zoning ordinance.  The next day Schaumberg filed an appeal with the Allamakee County board of adjustment over the zoning administrator’s interpretation of the applicability of the side-yard setback requirements, and alternatively for a variance from that requirement.  The Board of adjustment denied both requests. Schaumberg appealed to the district court, but the district court sided with the board of adjustment.  Schaumberg appealed. 

Schaumberg made three arguments at the board of adjustment, district court and Court of Appeals:  (1) the zoning ordinance did not apply to his property because his property was located on private roads; (2) Chipmunk Lane is a cul de sac, not a thoroughfare, and consequently his lot is not a corner lot; and (3) the zoning ordinance does not define “thoroughfare” and as a result is vague and unconstitutional.  Citing the language in Iowa Code 335.3 that county zoning applies to “land and structures located within the county but lying outside of the corporate limits of any city,” and noting that nothing in the code limits the applicability of zoning to land along public streets, the court dispensed with the first argument.  The Court of Appeals also sided with the county on Schaumberg’s second point, noting language in the county zoning ordinance that define streets as “thoroughfares” that provide “the principal means of access to the abutting property.”  The record is clear that Harpers Highland Lane and Chipmunk Lane provide the principal means of access to the abutting properties and therefore, are streets under the ordinance.  Finally the Court of Appeals dispensed with Schaumberg’s final issue by noting that any reasonable construction of the zoning ordinance would include cul de sacs within the broader definition of “streets.”

Iowa C.A. says one-bedroom B and B “smallest of small” home occupations

by Allison Arends

Meduna v. City of Crescent
(Iowa Court of Appeals, December 17, 2008)

One-bedroom bed and breakfast fits within definition of “small home occupations” in Crescent, Iowa zoning ordinance.

In 2004 the Medunas purchased a home in the Loess Hills Scenic By-way in the city of Crescent, and established a single room bed and breakfast in 2005. The Medunas purchased the home with the intention of setting up the bed and breakfast.  Under the City’s R-1 Residential Single Family Dwelling District, “small home occupations” are a permitted use.  The ordinance does not define “small home occupations.”  The Medunas were under the impression that their one room bed and breakfast would fit within the definition of small home occupations under the R-1 zoning district. 

Thirty-four of the Meduna’s neighbors signed a petition against the bed and breakfast arguing that it would cause increased traffic, and reduce privacy and security of the neighborhood.  The city council found the bed and breakfast in the R-1 zone to be a municipal infraction.  The Medunas filed for declaratory judgement, asking the district court to enter a decree finding the ordinance does not prohibit them from operating their bed and breakfast or, to find the ordinance unconstitutional. 

The district court found that the small bed and breakfast did not meet the requirements of the “small home occupation” exception, based largely on the fact that the R-3 Residential District in the city’s zoning ordinance specifically allows ‘Rooming Houses’ and ‘Tourist Houses,’ which would allow the Medunas’ bed and breakfast.  The Medunas were ordered to cease and desist operation of their bed and breakfast. 

The Court of Appeals reversed.  Because the zoning ordinance fails to specify the meaning of “small home occupations,” the Court of Appeals sought to apply the “common and ordinary” meaning of the term.  The dictionary defines “small” as “limited in scope or degree”, “home” as “a dwelling place,” and “occupation” as “an activity or pursuit in which a person is engaged; especially a person’s usual or principal work or business.”  Under these definitions the Court of Appeals found that the Medunas’ use of one bedroom and its attached bathroom of their house for a bed and breakfast is the “smallest of small” home occupations, and should be permitted under the R-1 zoning ordinance.

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