This submit was authored by Gregory Ahlsen, Jacob D. Fuchberg Touro Legislation Heart
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 services. Moreover, rules for the LP-3 district require that there have to be a minimal setback of two ft on facet 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 authorised 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 courtroom 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 had been granted in compliance with the zoning ordinance. Following the choice, Dunham appealed the circuit courtroom’s choice to the Supreme Court docket of South Dakota. On attraction, the Supreme Court docket discovered that the Board did not comply with the two-prong take a look at required by SDCL 11-2-53(2) (the “Statute”). The Court docket 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 Court docket 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 Court docket remanded the case to the circuit courtroom.
On remand, the circuit courtroom promptly remanded the matter to the Board to have the Board contemplate the particular situations of the two-prong take a look at required by the Statute. On July 21, 2020 the Board held a particular listening to relating to the circuit courtroom’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 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 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 undergo 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 courtroom 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 immediately intervene along with her use and pleasure of her property as a result of it could trigger drainage points and intervene along with her property’s entry to pure daylight. In the long run, the circuit courtroom granted the movement to dismiss as a result of it was discovered that Dunham lacked standing for lack of accidents.
Dunham appealed the circuit courtroom’s choice to dismiss for lack of standing to the Supreme Court docket. The Supreme Court docket 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 choice 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 Court docket reversed the circuit courtroom’s dismissal and remanded the matter to handle the deserves of Karen Dunham’s second petition.
Dunham v. Lake County Fee, 976 NW 2nd. 247 (SD 6/1/2022)