*1 disputes Order, on visitation as set settled law Court previous comply [with] the trial court’s Accordingly, previ- forth above. hereby vacates now the Court of the visitation schedule and now enters modification order visitation ous par- requires and the matter visi- schedule should be reversed visitation Guide- appropriate the First Circuit consider- to follow tation remanded ties attached are lines, which copy [of] in the children’s best ation of schedule incorporat- reference and hereto interests.3
ed herein. AMUNDSON, Justice, joins this divide the parties shall That the 3. 2. dissent as Issue equally. visitation summer may choose whether That [father]
4. a con- to be for the visitation
he wants in two of time or divided period
secutive
guide-
pursuant
time
blocks of
be coordinated OF BOARD OF ADJUSTMENT at the same together the children have (the City commis- CITY OF HURON present. step daughter time as her Defendant, thereas), acting sion alter- be on an visitation shall Weekend at the times set weekend schedule native guidelines. forth with Stores, Inc., Intervenor General Appellant. and conclusions findings These court modi- that the trial clearly establish No. 21210. punish- as visitation schedule fied father’s Dakota. of South Supreme Court prior with compliance lack of ment for his orders, arrangement as an visitation April on Briefs Considered perti- interests. The children’s best 11, 2000. Reassigned July reflect no findings and conclusions nent 30, 2000. Aug. Decided children’s whatsoever of the consideration interests, prior only father’s violation on infringement and his
visitation orders clearly This violates interests.
mother’s record, ignore trial and we and conclusions ably majority reviews 3. While the Here, the pronouncements). where father trial describing various instances oral court's rights, it visitation mother’s single finding failed honor findings support its conclusions fail court's conclusion identifies not a establishing find- the trial court’s judgment. While the trial court’s consideration accurately might detail ings and conclusions regard best interests the children’s require- visitation of certain father’s violation ments, that it is not the It fundamental visitation. com- contain the essential fail to through a cold to sift function of this court children’s best ponent of consideration support pick and choose evidence record Thus, re- should be this matter interests. party position or the other. ive of one may so that visitation and remanded versed Rather, findings court's we examine the trial chil- from the appropriately be considered they support its whether of fact to ascertain solely on the point and not of view dren’s judgment or of law and ultimate conclusions viola- Father’s the actions of father. basis of M.H., v. determination. See E.H. statutorily rights is tion of mother’s visitation (S.D. sup 1994)(findings of fact must 25-4A) (See ch. contempt SDCL punishable as judgment). See port of law and conclusions summarily with a met and should not Peterson, 2000 SD v. also State ex rel. Steffen rights own visitation in his reduction (Supreme best interests. might the children’s findings not be in limited to written Court’s review is *2 Gary
Todd D. Wilkinson and W. Schu- Wilkinson, DeSmet, macher, Wilkinson & Dakota, Attorneys petitioner South appellee. Burns, Freeman, and Jeff we held that the circuit court failed to use
Rodney
Jr.
Manolis, Freeman,
Churchill,
& the proper
Kludt
standard of review. The case
Dakota,
Shelton, Huron,
Attorneys
Cole,
South
reversed and remanded.
See
appellant.
for intervenor
ment). ed that the of the variance was Adjustment The Huron Board of [¶ 1.] “illegal juris- and in excess of Board’s] [the (Board) Casey’s granted a variance Gen- diction” any because “failed to make Stores, Inc, Floyd Peterson and An- eral finding ‘that there exists conditions Cole, an thony (Casey’s). Chris W. Stahl depriva- which constitute an unreasonable ” owner, granted a adjoining property tion of The circuit use.’ court concluded circuit court. The by writ of certiorari “granting the variance was Casey’s appeals. circuit court reversed and merely privilege, which is clear- We reverse. ly prohibited by City’s Zoning Ordi- nances.” AND FACTS PROCEDURE Casey’s appeals, raising the follow- [¶ 7.] appeal This is the second these [¶ 2.] ing issue: underlying this parties. The basic facts Whether the circuit court exceeded its Adj., in v. Bd. appeal are recited Cole jurisdiction reviewing in Huron, 54, 592 1999 SD N.W.2d de decision novo. necessary for resolution of 175. The facts appeal this follow. OF REVIEW STANDARD 1997, 25, Casey’s On November
[¶ 3.]
a variance for three lots on a
applied for
Zoning
interpret
ordinances are
highway in Huron. Two
busy
corner of a
according
statutory
ed
to the rules of
by
of the lots were vacant and owned
any
construction and
rules of construc
lot,
The third
with a house
Peterson.1
in
tion included
the ordinances them
thereon,
situated
was owned
Stahl.
The
of an
interpretation
selves.
ordi
permis-
application,
requested
question
presents
nance
of law which
gas
to construct a
station and conve-
sion
interpreting
we review de novo. When
properties.
nience store on the
ordinance,
an
we must assume that the
request
The
was met with
ordi
legislative body meant what
public hearing
and a
was held
opposition
says
give
its words and
nance
12,
15,
January
on December
1997. On
phrases plain meaning and effect.
1998,
the Board
the variance
presented to
Because this matter was
14, 1998,
Casey’s.
January
Cole filed
On
certiorari,
scope
trial court
our
on
appealed
for writ
certiorari
questions
review is limited
decision
circuit court.
Board’s
officers,
courts,
inferior
whether
boards,
jurisdiction
had
The circuit court reversed the
and tribunals
regularly pur-
they
action of
and whether
have
Board’s decision
“[t]he
authority
upon them.
Casey’s a variance was
sued the
conferred
courts, officers, boards, or
compliance
City’s
in
not done
‘When such
jurisdiction over the sub-
Casey’s appealed and
tribunals have
ordinances.”
property
presented
public
county
from a citizen
1. Evidence was
at the
hear-
obtained
recovery
delinquent
"Murphy” for
property was used as a
named
that the vacant
county
for 27
public skating
The
taxes. The
owned
rink from 1927 to 1997.
1997,
when,
at a
Department
years
June of
sold it
Parks & Recreation
maintained
Peterson,
only
who was the
property through
years, even when
auction to
those
private persons
property.
owned the
bidder.
ject
party,
matter and of the
their action
decision as illegal and in excess of its
will be
pro-
jurisdiction.”);
sustained unless in their
Willard v. Civil Service
ceedings
did
Falls,
some act
297, 298,
Board
Sioux
75 S.D.
forbidden
law neglected
required
to do some act
N.W.2d
(noting
that review
by laiv.’
of a circuit court’s proceedings on certiora-
ri
extends
a determination of
Cole,
54, 4,
1999 SD
review for concerning certiorari criteria Board has wide dis [2], Finally [3], as to criteria made in deciding cretion whether or not to grant which supported by the evi- ordinance, a variance a zoning and in dence and not overturned the circuit decision, reviewing that the circuit court court: may not substitute its for that discretion the Board. Id. scope This limitation on That Highway North part is that prevents review “courts from usurping pol of Huron affected the vari- *6 icy decisions from other gov branches of application currently ance a state ernment.” Bell v. Township Bass Riv highway presently subject and of to exten- er, 304, N.J.Super. 208, 196 482 A.2d 212 sive commercial traffic and the (Ct.Law Div.1984). Thus, courts must not of the said variance should not substan- review the a petition merits of or evidence noise, tially congestion, increase or oth- in the absence a showing of that the Board erwise disrupt neighborhood. “acted fraudulently arbitrary or or will The further found that grant- “[t]he ful disregard undisputed indisputa and ing of a variance for a convenience store Cole, 54, ble proof.” ¶10, 1999 SD harmony will inbe with general pur- Willard, N.W.2d at 177 (citing at S.D. pose ordinances, and intent of the 801). 63 N.W.2d at This is the stan while maintaining integrity of the com- dard of review which should have been prehensive plan.” utilized the circuit court upon its review 4. The circuit court stated: is contrasted and conflicted (8). by Finding number The evidence (9) Finding prop- number states that the Finding also confirms number that the erty many years has been vacant for purchased current owners never intend- acquired delinquent for taxes. The ing it to be marketed as a residential Hearing ultimate Officer finds that [sic] property. this subordinate fact "evidences a lack of was, Here the circuit court conceded there marketability of those lots for residential minimum, at a a conflict in the evidence. development, therefore use of such land improperly proceeded It then to resolve this purpose for some commercial may be by conducting conflict a de necessary novo review. If for the reasonable use of the question property." properly jurisdiction, [emphasis original]. one of A re- view then a purpose of the record for the conflict the evidence limited itself testing legality proceedings, required establishes there was the shows that support support there is evidence the Board's determination to (9). Finding that impact [number] a variance. ¶43, 14, Instead, Adj., the circuit Casey’s petition. Furthermore, cannot “certiorari the Board’s replaced analyzed court purpose for the own, used to examine evidence substituting judg- findings with its determining the correctness of a find determining Board in ment for that fraud, ing, at least in the absence of adequate to be facts were whether undisput arbitrary disregard willful and hardship. an unwarranted as classified indisputable proof ed and wherein credibil despite improperly did so The circuit court involved.” ity of witnesses is not Willard of the find- careful review declaring “[a] Falls, v. Service Bd. Sioux 75 S.D. Civil there indicate Board] ings [of (quoting State disputed facts.” many were Minne Grey ex rel. v. Circuit Court of and remand to We reverse 18.] [¶ County, haha 58 S.D. 235 N.W. proceedings court for further circuit (1931)). of re- proper standard application view. This record reflects that the cir [¶ 24.] court, Willard, limited its per properly
cuit Justice, MILLER, Chief legality of the variance review to the KONENKAMP, compli AMUNDSON Board’s Justices, 11-4-17(3). ultimately concur. It ance with SDCL illegally the variance was concluded SABERS, Justice, dissents. 20.]
[¶ there was no “existence granted because un conditions which constitute an SABERS, (dissenting). Justice ” hardship.... or unreasonable warranted AP- 1. THE CIRCUIT COURT rationale, In its the circuit court examined STANDARD PLIED THE PROPER finding of fact number 9 which IN DETERMINING REVIEW OF that the vacant lots “evidences provides OF THAT THE BOARD’S GRANT marketability of those lots resi lack of THE VARIANCE WAS ILLEGAL. of such development; dential therefore use majority opin- disagree I with the 22.] purpose may be land for some commercial court the circuit ion’s determination necessary for the reasonable use of novo, the Board’s record de reviewed added). The Board property.” (emphasis for that substituting its discretion “thereby determined that refusal also *7 of the Board.” proper for commercial use of the substantially impair appropri its appeal, ty in “could prior we stated 23.] As [¶ and the land “can development” or on certiorari ate use only question presented “the return if used yield not a reasonable tribunal exceeded its whether the lower is allowed in that zone.” purpose for a Adj., v. Bd. jurisdiction.” Cole of of necessity Huron, 54, 10, findings fail to establish These 592 N.W.2d omitted). (citations Thus, possibility, which is merely provide for the circuit 176 unnecessary satisfy the insufficient “confined to a review of review is court’s 11—4— set forth under SDCL zoning hardship test municipality’s of the legality correctly deter- 17.5 The circuit court City Lennox Bd. Hamerly v. decision.” of 5. A determines justice done. the ordinance hardship, and [1] est, a literal enforcement ordinance variance can be [2] will not be where, owing that it: shall be observed [3] will result contrary granted only if the Board so that the of the provisions spirit of the unnecessary conditions, substantial inter of nance 23.04.028 test). by majority opinion, is whether there was exceeded its SDCL gally granted the variance to ance to cuit court did decision, Issue of 11-4-17(3). 2 Casey’s. I no also jurisdiction not err in showing conclude that case, In (adopting See also Huron determining which was that the reviewing the Board’s this because Casey’s the Board ille- strict not reached three-prong City Ordi- applica- the cir- a vari- Board 490
mined that this
conflicts with
application”
Ca-
of the ordinance to
appli
sey’s
purchased
admission
unnecessary
cant would cause
hardship.
without
intending to
market
as We
previously
have
“unnecessary
defined
property.6
residential
hardship”
require
a hardship that
force,
“substantial and
compelling
of
The circuit court and this court
25.]
merely for reasons of convenience
prof
evidence,
must look at the
as well as the
Clarke,
it.” City
Madison v.
288
thereof,
sufficiency
to ascertain whether
(S.D.1980)
314
(citing Deardorf
jurisdiction.
exceeded
See
Bd. Adj. Planning
Zoning
Adj.
Graziano v.
Bd.
Des
v.
Comm’n,
(Iowa
Moines,
1982) (re-
254 Iowa
323 N.W.2d
118 N.W.2d
(1962)).
More
viewing
specifically, unnecessary
certiorari action and reversing
variance).
hardship the board’s
demonstrated when:
Al-
though the circuit court does not deter-
(1) the land in question cannot yield a
mine the
of a finding,”
“correctness
reasonable return if
used
for a
circuit court and this court must analyze
purpose
zone;
allowed
a finding”
“correctness of
when ascer-
plight
of the owner is due to
taining whether
the Board acted with
unique circumstances and not to the
“willful or arbitrary disregard of undisput-
general
neighbor-
conditions in the
Willard,
ed
indisputable proof.”
may
hood which
reflect the unrea-
N.W.2d at
precisely
801. This is
what the
sonableness of the
ordinance
circuit court did here.
itself; and
Accordingly,
an
there is
insuffi-
showing
cient
to support
the claim that the
use to be authorized
the vari-
circuit court used the wrong standard of
ance will not alter the essential char-
fact,
review.
the circuit court ex-
acter
locality.
of the
pressed and complied with the proper
(citations
Deardorf,
[¶ 27.] Because the circuit court’s review that question land in yield cannot *8 proper, was the second issue must also be reasonable return only if used pur- for a addressed. pose allowed in that zone. “An ordinance deprives a landowner of a reasonable re- 2. THE 28.] BOARD EXCEEDED ITS turn if all ‘productive use the land’ is IN JURISDICTION A GRANTING (citation omitted). denied.” Id. To show a VARIANCE TO CASEY’S. deprivation “productive of all use of the indicated, As land,”
[¶ 29.] the may Board applicant the must show that the grant a if it variance finds that “strict property has changed and the “uses for
tion of the Casey’s ordinance to would cause 7. This incorporated standard is also into Hu- unnecessary hardship. ron Ordinance 23.04.028. 2, infra, analysis See Issue why for an the Board's illegal. of this variance was granting proper- of the variance where the longer are no originally zoned is was which (1) However, subject multiple listing, granting ty the the Id. feasible.” (2) comparatively the to similar struc- upheld priced when will not be (3) tures, people value of the to 41 with no offers is that the shown presented evidence home, “depreciated single-family has purchase land been to as applicant’s a variance or that it would zoning regulations, presented evidence was that the prof- more him to maintain a permit impractical” would to maintain “difficult omitted). (citation Id. single-family itable use.” as a home in property zoning regulations). accordance with the Board, Here, granting county, bought The fact that the fact that the va- found that the indisputa- at a tax sale is not property for county acquired lots were cant property ble evidence that the is not mar- lack of mar- taxes “evidences a delinquent today. purposes ketable for residential for de- ketability of those lots residential showing at a should attempt Some better indicated, con- velopment.” As have been offered. use of the the commercial cluded “may necessary for reason- land addressing the reasonable re- It also deter- property.” able use property, turn of one court determined a variance mined that a refusal nor depreciated that neither value financial property “could commercial use of in a appropriate loss is an indicator vari- or impair appropriate use substantially case: ance yield a land “cannot development” appear It does not from record pur- for a if used reasonable return subject unfit for a conform- area is zone.” Neither of allowed in that pose use, may not although such use be as are sufficient to estab- the italicized words lots as as inviting and the desirable necessity. lish lots in the use district. some other However, is depreciated sole consideration value does [¶ 32.] “[T]he such capable land or is peculiar whether the structure fall the class of within in a reasonable manner which being necessary used circumstances exceptional applicable zoning consistent with the of á use variance. sustain the Zoning AmJur2d provisions.” so, property desiring owners If other (1992). § A review of the Planning at a a use zone property sell their offered no record discloses nonconforming purposes premium for variances, that the construction evidence show use frequently seek would not feasible. single-family residences was destroy tend to of which would that if the they present Nor evidence did system the whole greatly impair single-family were used to construct land zoning.
residences, return would be unreason- Zoning Adj., 571 So.2d v. Bd. Brock deprived of a or that would be able (citation (Ala.Civ.App.1990) land. Zimmer- productive use of the See omitted). Furthermore, O’Meara, 1140, 245 N.W. 215 Iowa man v. is “entitled use” of “best nothing (stating “[t]here Bd. in a variance case.” weight or no little an unneces- to indicate that in the record Dauphin Upham Joint Zoning Adj. v. of Venture, if imposed” applicant will be sary hardship (Ala.Civ.App. 688 So.2d variance). was denied omitted). 1996) (citations applicant’s improper also an *9 Further, situation is show own economic Casey’s failed to
[¶33.] unnecessary hard establishing basis for person be to a that the lots could not sold Madison, at 314 ship. City property the conform- who would use of disadvantages (stating “[economic that requirements. See zoning ance with the ‘unnecessary hard Levine, ... do not constitute 147 A.D.2d Sheeley v. ”). ship.’ (upholding the N.Y.S.2d Here, sup- evidence not That Highway part
[¶ 35.] the does North is that Casey’s City would en- the port by conclusion Huron affected the vari- currently “a beneficial use application dure loss of all of the ance is [and] subject if the variance was denied. property” highway presently The state to any establishing extensive traffic record void of commercial and the the variance not any reasons the cannot be used said should noise, substantially the zoning congestion, accordance with ordinances. increase or adequate disrupt neighborhood[,] does the make find- otherwise the Board Nor to ings support example, the same. For and that the Board made find- also several Board the found that the Administra- ings referring health, “public safety to or had stated operation tor the of a example, welfare.” For the found Board would an “inap- convenience store not be that: propriate” use of the land. This finding The granting bring of a variance will support affords little to the determination to changes neighborhood, the but these unnecessary hardship. necessarily will not changes injurious be public or otherwise to detrimental the case, In a Appeal similar In re health, safety or welfare. McClure, 415 Pa. 203 A.2d (1964), a was to variance construct findings merely The support above in an single-family bank area zoned for determination that the Board to attempted concluded, residences. The board on two accomplish rezoning by vari- granting a occasions, that the land was not suitable stated, ance Casey’s. As zoning laws for residential In reversing use. health, are designed promote “public board, the court McClure determined: safety and welfare.” See SDCL 11-6-2. This is not the used standard to determine Such the land not suit- [that fact, whether a variance. be- for able residential does not ... use] cause variances underlying circumvent the command the even if ordinances, purpose zoning should thereby interest would not be granted sparingly only be when adversely rule, general affected. As a if shown application the strict land, matter, as a practical cannot zoning ordinances results in an unneces- purposes, be utilized residential then sary hardship. the land be should an appeal rezoned legislative body.
to the
rezoning
Such
The
findings
sup-
above
further
cannot
accomplished port
and must not be
a determination that the Board’s deci-
guise
under the
of a variance.
sion
satisfy
did not
prong
second
unnecessary hardship test: “the plight of
added).
Id. at 537 (emphasis
See also
unique
is due to
owner
circumstances
Graziano,
rather than to by variance. See
proper proceedings Bd. Pennington County v.
Schrank 62, Comm’r, (pro- N.W.2d 90 County’s to that the amendment
viding
a conditional
zoning ordinances rendered
health, safety power grant spar- a variance should be exercised Co., Traveler’s Insurance Insurer ingly and accordance with Appellee. Therefore, personal welfare. “conditions Nos. 21109. land-owner are not relevant granted.” whether a variance should be Supreme Court of South Dakota. Louis S.W.2d County, Hutchens v. St. (Mo.Ct.App.1993). other on 2000. Considered Briefs Feb. words, a variance should Decided Sept. permit such a simply because would profit to obtain a from greater the owner of the property.
the sale or use bears applicant An for a variance unneces- great proving burden hardship will if the variance is
sary result establish, Casey’s failed before
denied. Board, all deprived that would be if the variance
productive use of land Therefore, granted.
was not yield that the land could not
conclusion pur- if for the
reasonable return used allowed,
pose is error and renders illegal. of the variance unneces- showing no of an
[¶ 42.] Since hardship attempted or estab-
sary