Pennington County v. MoorePennington County v. Moore
Aрpellant Pennington County (County) appeals the trial court’s ruling that zoning ordinances enacted by County since 1970 are invalid and unenforceable due to the absence of a properly enacted comprehensive zoning plan. We affirm.
FACTS
In 1979 and 1980, Appelleе Francis Moore purchased two parcels of real estate totaling approximately twenty acres. He began operating a salvage yard for motor vehicles on the property. In 1986, Francis transferred title of the tract to his son, Appellee Russell Moore. Russell continues to use the land as a salvage yard.
In July 1991, County brought suit against Moores, alleging that the operation of the salvage yard violated a County zoning ordinance. Moores contended they were not in violation of the zoning ordinance, beсause it was not adopted under a validly enacted comprehensive zoning plan. At trial, County stipulated that it had never adopted a comprehensive zoning plan pursuant to the procedural requirements set forth by statute. County acknowledged it did not advertise or hold a public hearing on any proposed comprehensive plan as required by
In spite of County’s failure to follow statutorily imposed procedures, it claimed that the zoning ordinance was valid and enforceable against Moores. It argued that public aсquiescence and reliance on the comprehensive plan and the zoning ordinances by citizens and elected County officials for twenty-three years created a bar to Moores’ challenge of the zoning ordinance.
DECISION
WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT FOUND THAT PUBLIC ACQUIESCENCE AND RELIANCE UPON THE COMPREHENSIVE PLAN AND THE ZONING ORDINANCES ADOPTED THEREUNDER BY THE CITIZENS AND ELECTED OFFICIALS FOR OVER TWENTY YEARS DOES NOT CREATE A BAR TO MOORES’ CHALLENGE OF THE ORDINANCE.
County claims the trial court erred as a matter of law when it concluded that public acquiescence and reliance for over twenty years did not bar Moores’ challenge to the zoning ordinance. Conclusions of law are reviewed de novo.
State v. Harris,
County stresses the delay оf over twenty years between County’s initial attempts to enact a valid zoning ordinance and Moores’ challenge to the validity of the ordinance, alleging that this “public acquiescence and reliance” for such an extended period of time makes the zоning ordinances valid in spite of procedural defects in their enactment. 1
For a number of reasons, we reject County’s claim that public acquiescence and reliance can validate ordinances which were enacted in contravention of express statutory provisions. First, “[a] county in this state is a creature of statute and has no inherent authority. It has only such powers as are expressly conferred upon it by statute and such as may be reasonably implied from those expressly granted.”
State v. Hansen,
Second, South Dakota case law establishes that improperly adoptеd zoning regulations are invalid and will not be enforced. In
City of Brookings v. Martinson,
In
Dodds v. Bickle,
Finally, in
Save Centennial Valley Ass’n, Inc. v. Schultz,
[T]he powér to decide matters of zoning, which by necessity may include the power to exercise discretion, is not synonymous with the power to disregard the mandates of the enabling legislation and the comprehensive plan_ Both thе enabling legislation and the comprehensive plan are specific in setting out the procedures to be followed to effectuate a change in the comprehensive plan. Both require notice and hearing prior to the acceptance of any change. These provisions are mandatory and may not he disregarded by the Commission. Any action by the Commission in attempting to allow the subdivision to be located in the agricultural zone which does not comply with the legislative mandates is an act in excess of its jurisdiction.
Id. at 457-58 (emphasis supplied) (citations omitted).
Third, we must consider the due process concerns associated with ordinances affecting property rights. As explained in
Carter v. City of Salina,
It is the general rule that zoning ordinances are in derogation of common-law property rights and find their authority through the state police power; accordingly, municipalities and other political subdivisions must scrupulously comply with statutory requirements, including notice and hearing, in order to provide due process of law. Ordinances which fail to comply with the state enabling statutes requiring notice and hеaring are void.... Such procedural infirmities cannot be overlooked and the fact that such an ordinance has been .“on the books” and in effect for a long period of time does not instill life into an ordinance which was void at its inception.
Id.
at 254 (emphasis in original) (citations omitted).
See also Catalano v. Pemberton Township Bd. of Adjustment,
Further, we cannot conclude that Moores deliberately delayed bringing their challenge in order to prejudice the rights of County or the public. The procedural defect here is the absence of notice and a public hearing as contemplated by the statutes mandating a comprehensive plan. This is the type of dеfect that inherently leads to delay in the bringing of a challenge.
Pilgrim v. City of Winona,
We agree with the trial court that, inasmuch as County’s zoning ordinances are void for want of compliance with mandatory notice and hearing requirements, Moores’ property is unzoned. Absent other applicable law which restricts the use of their land, they may proceed with their use of the property as an auto salvage yard. 3
Affirmed.
Notes
. County refers to its public acquiescence theory in a number of ways, including laches, public reliance, and estoppel. All these terms refer to the same claim: that Moores arе prevented from challenging the validity of County's zoning scheme because the public and the Moores conducted themselves as though the ordinances were valid during the extended period of their ostensibly legal operation.
. In 1970,
In 1970,
In 1970,
. We recognize the uncertainty and рossible chaos that might accompany invalidation of the County's existing zoning scheme. We note, however, that South Dakota law allows for temporary zoning and land use controls when a comprehensive plan or official controls are under consideration.
The anticipated brief time pеriod between the issuance of this decision and the lawful enactment of temporary measures is unlikely to pose a threat of uncontrolled, opportunistic development. First, to establish a vested nonconforming use which falls outside of subsequently enacted zоning laws, the use must be actual and not merely contemplated. Patrick J. Rohan,
Zoning and Land Use Controls,
§ 41,01[5] (1994). Second, a vested right will not be established where expenditures or obligations are incurred in contemplation of impending zoning restrictions.