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

This put up was authored by Gregory Ahlsen, Jacob D. Fuchberg Touro Legislation 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 Properties, 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 can be constructed lies within the LP-3 zoning district which has a 4,000 square-foot restrict for personal and industrial storing amenities. Moreover, rules for the LP-3 district require that there have to be a minimal setback of two toes on facet yards and ten toes 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 accepted the variance and CUP. Neighboring property proprietor Karen Dunham opposed each the variance and the CUP.

On Might 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 resolution to the Supreme Courtroom of South Dakota. On attraction, 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 enough findings that an “extraordinary and distinctive” scenario on the property owned by Hodne Properties, 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 Properties. 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 contemplate the particular situations 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 Properties 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 Properties had an obligation to assemble a bigger constructing to be able to promote two particular manufacturers of boats at Sodak Marina to be able to keep away from distinctive and undue monetary hardship. Dunham asserted that the Board should not contemplate 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 rules. On September 1, 2020, the Board unanimously voted to search out that Hodne Properties would endure peculiar and distinctive sensible difficulties if the variance was denied and that there was a rare and distinctive scenario 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 facet 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 instantly intrude together with her use and pleasure of her property as a result of it could trigger drainage points and intrude 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 resolution 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 resolution to grant the variance and CUP would trigger her to expertise a scarcity 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 handle the deserves of Karen Dunham’s second petition.

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

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