It may initiate an amendment to the section . . Save Centennial Valley Ass'n Inc. v. Schultz, 284 N.W.2d 452, 454 (S.D.1979). It commands the fulfillment of an existing legal duty, but creates no duty itself, and acts upon no doubtful or unsettled right. Landmark owns a 240-acre tract of land in Lawrence County, South Dakota. [2002 SD 74], South Dakota Supreme CourtAppeal from the Circuit Court of The Fourth Judicial CircuitLawrence County, South DakotaHon. Dist., 445 NW2d 308, 311 (SD 1989) (stating mandamus is inapplicable to undo an act already done in violation of public or official duty); Beresford Indep. The court issued the writ of mandamus, but did not order the removal of the addition. She contends that she is entitled to have the City do that which they are duty bound to do . In addition to following the law, be thoughtful of your neighbors and community, said Police Chief Curt Jacobs. . [7.] . Cordell v. Codington County, 526 N.W.2d 115, 117 (S.D.1994). Dist. [3.] See also 83 AmJur2d Zoning and Planning 698 (1992). This, in turn, allows injunctions that require destruction of the property. Donald D. Richards Spearfish, South DakotaAttorney for plaintiff and appellant. ] City of Sioux Falls v. Johnson, 2001 SD 108, 27, 632 NW2d 849, 856 (citing SDCL 15-26A-87.3) (emphasis in original). [2] Viles subsequently resubmitted her application and a proposal that left a 7-foot setback on the first level of the home and a 12-foot setback for the second story.
Finally, Hentz requested that her attorney fees be awarded. ] [1] Hentz resides next door to Mary Kay Viles and Joe DeSiena (Viles) in City. E. James Hood Suzanne M. Dardis of Hood & Nies Spearfish, South DakotaAttorneys for defendant and appellee. Learn more about FindLaws newsletters, including our terms of use and privacy policy. [5.] PUDs were established as an alternative method of development and are intended to encourage imaginative solutions for development problems, not to abolish population density limitations. Hentz argues that the lower court did not have the right to prospectively foreclose the possibility of seeking specific types of relief. She contends that she is entitled to have the City do that which they are duty bound to do . [14.] There, we determined an injunction requiring the purchaser to tear down the cabin was too harsh. ZtMrz 7 word/document.xml=]oHhplRH/2a{(e"$ey.po?/nR"%~?A8=/3][_73FoqxYc7Bt7zg(./C{Vx&v2\_>yr !OG+.`mErm7:oEdN=%{{ x7[+WG+l ; Wv4*qk0'c7`KkC^>(Xb: dL Y[M4)f[oF#v~;X"QnetC!K(Jx>},_V`]/jdnyx/. Ambiguity also exists when the literal meaning of legislation leads to an absurd or unreasonable conclusion. Therefore, no appellate attorney fees are allowed in this appeal.
The applicable standard of review for this issue is the abuse of discretion standard. They are an exception to the general zoning provisions because of their potential incompatibility with existing development. The applicable standard of review for this issue is the abuse of discretion standard. Baker v. Atkinson, 2001 SD 49, 12, 625 NW2d 265, 269 (stating circuit court has discretion in granting a writ of mandamus and acknowledging the standard of review is abuse of discretion) (citing Willoughby v. Grim, 1998 SD 68, 6, 581 NW2d 165, 167; Brown v. City of Yankton, 434 NW2d 376, 378 (SD 1989)). [A]n abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence. Id. 3.Customary district regulations concern requirements for such things as sidewalks and allowable space between residences. Alternatively, City can require building permit applicants to apply for a variance, where the entirety of the proposed two-story structure does not meet the necessary 12-foot setback requirement . [13.] . Absent an indication of which population density applies to a proposed PUD, the appropriate population density ranges from one dwelling per 7,500 square feet in suburban residential districts to one dwelling per forty acres in A-1, general agriculture districts, depending on the understanding of the disputed ordinance. The trial court stated that it refused to order demolition of Viles addition because much of the construction was complete and Viles had never been party to the suit by Hentz against City. A critical factor in balancing equities is that the party being enjoined knew that he was violating the covenant. (citing Foley, 89 SD at 166, 230 NW2d at 479 (stating [a]n additional factor that the court should consider is the state of mind of the party against whom the mandatory injunction is sought)). at 33. Words and phrases in the ordinance must be given their plain meaning and effect and, if the language is clear, certain and unambiguous, our only function is to declare the meaning of the ordinance as expressed. N _rels/.rels ( j0@QN/c[ILj]aGzsFu]U ^[x 1xpf#I)Y*Di")c$qU~31jH[{=E~ 2001 SD 49 at 16, 625 NW2d at 269 (emphasis in original) (citations omitted). ] [8.
. [16.] Sch. Viles have proceeded in reliance on a building permit issued by the appropriate authority . [12.] . Hentz and her attorney contacted City officials to complain about the sight obstruction and about a violation of the set back ordinance. A critical factor in balancing equities is that the party being enjoined knew that he was violating the covenant. ] A critical factor in balancing equities is that the party being enjoined knew that he was violating the covenant. There are many ways to observe the holiday, but remember that within Spearfish City Limits, you may not shoot off fireworks.
Id. Additionally, in Harksen v. Peska, 1998 SD 70, 27, 581 NW2d 170, 175, a landowner built a cabin that violated covenants on the land. [15.] . [3.] The disputed property may be rezoned as a residential district compatible with the population density necessary to support the PUD.4 While Landmark's argument that the PUD ordinances were enacted to eliminate the necessity of rezoning for projects such as the Spring Creek development is logical, the ordinances which have been enacted do not evidence such an intent or achieve such a result. In order to accomplish these objectives the customary district regulations may be modified, provided that overall population densities do not exceed the densities of specific residential districts. ] State v. Lehman, 45 SD 394, 187 NW 720, 721 (1922). . [15.] . (quoting State v. Almond, 511 NW2d 572, 574 (SD 1994)). Considered on Briefs April 22, 2002Opinion Filed 6/26/2002. [13.] Donna Hentz (Hentz) petitioned the trial court for a writ of mandamus commanding the City of Spearfish (City) to comply with its zoning ordinances. [9.] Su [ word/_rels/document.xml.rels ( 1O0w$C Pj!u"%ZEdm+k [11.] Warren G. Johnson, Judge. Id. All rights reserved. [9.] Begin typing to search, use arrow keys to navigate, use enter to select. . This proposed zoning change was rejected on March 15, 1995, at the Lawrence County Commissioners and Lawrence County Planning & Zoning Joint Meeting. e [Content_Types].xml ( OO0H|UPS{\dO6B6%)y2NdofWjw Sx5[Ab7*@*HR$`E| GG+n!htwKl2F,%Q56e&zGVn*R{\$AD#,uW^.,)6;8}h >%DdMUnC.zC! [18.] To prevail in seeking a Writ of Mandamus, the petitioner must have a clear legal right to performance of the specific duty sought to be compelled and the respondent must have a definite legal obligation to perform that duty. GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and ZINTER, Justices, concur. ]A[n ordinance] or portion thereof is ambiguous when it is capable of being understood only by reasonably well-informed persons in either of two or more senses. In re Famous Brands, Inc., 347 N.W.2d 882, 886 (S.D.1984) (citations omitted). This is especially so where, as here, the property owner is not even a party to the action. Although we agree with Hentzs argument that this case is somewhat distinguishable, the inequity resulting from the destruction of property of a non-party is the same.[3]. After construction was underway, Hentz determined the addition obstructed her view of Lookout Mountain. In Harksen, despite the builders knowledge that he was in violation of the covenant, we said [i]t would be inequitable to require the destruction of a $100,000 summer residence when there really is no burden on Harksen. Id. Hentz argues that the lower court did not have the right to prospectively foreclose the possibility of seeking specific types of relief. ] . Donna Hentz (Hentz) petitioned the trial court for a writ of mandamus commanding the City of Spearfish (City) to comply with its zoning ordinances. . 4.Landmark and Spring Creek have experience with the appropriate steps to follow. This interpretation is consistent with the purpose of the zoning regulations. [19.] Utilizing a writ of mandamus to obtain relief is a unique remedy, which has been described as follows: The nature of a writ of mandamus is an extraordinary remedy that will issue only when the duty to act is clear: Mandamus is a potent, but precise remedy. Baker, 2001 SD 49 at 16, 625 NW2d at 269 (emphasis in original) (citations omitted).
(quoting State v. Almond, 511 NW2d 572, 574 (SD 1994)).. We have said that the Legislature contemplated the granting of appellate attorney fees only where such fees are permissible at the trial level.
Viles have proceeded in reliance on a building permit issued by the appropriate authority . f?3-]T2j),l0/%b The developers next sought a change in zoning from A-1 to S-R (suburban residential). (citing Foley, 89 SD at 166, 230 NW2d at 479 (stating [a]n additional factor that the court should consider is the state of mind of the party against whom the mandatory injunction is sought)). The exception allowing for PUDs was not intended to abandon A-1, general agriculture districts, as evidenced by the zoning regulations specific recognition of the necessity of agriculture districts in the overall development and planning for the City and County. . See Olsen v. City of Spearfish, 288 N.W.2d 497, 500 (S.D.1980). As required by the ETJ Planning Ordinances, Landmark requested Commission's approval of a planned unit development (PUD), Spring Creek Ranch, to be constructed on the tract of land at issue in this appeal. Spearfish officials are reminding residents that fireworks are not allowed within city limits or the Black Hills Fire Protection District. We then noted that knowledge is a crucial factor in the relative hardship test and that some courts will not apply this test if one deliberately builds a structure in violation of restrictions. We affirm. [10.] Cf. [1] Hentz resides next door to Mary Kay Viles and Joe DeSiena (Viles) in City. Viles applied to City for a building permit that would allow her to construct a multi-story addition onto her home. City initially denied the permit because it violated City Ordinance 356, Section 3(D)(2), which requires a 12-foot side setback for homes over one and one-half stories high. The regulations established in this section are intended to provide optional methods of land development which encourage more imaginative solutions to environmental design problems, such as cluster planning. On June 18, 2001, City issued the permit after officials determined the application met all legal requirements. Residential areas thus established would be characterized by a unified building and site development program, open space for recreation, and the provision for commercial, religious, educational and cultural facilities which are integrated with the treatment. Similarly, in this case the hardship of requiring Viles to tear down the addition outweighs the detriment to Hentz. at 31, 32. We then noted that knowledge is a crucial factor in the relative hardship test and that some courts will not apply this test if one deliberately builds a structure in violation of restrictions. This, in turn, allows injunctions that require destruction of the property. Id. [9.] Co., 500 N.W.2d 619, 621 (S.D.1993)). [15.] (Emphasis added). . Hentz appeals. John S. Peters, Jerry Boyer, the John H. Esling Trust,2 and People for Responsible and Orderly Development of Lawrence County (collectively referred to as Petitioners) filed a petition for a writ of certiorari with the trial court alleging Commission, City and County exceeded their authority and jurisdiction in approving the proposed PUD. In the case at hand, issuing the writ was not error because City clearly had a legal obligation to comply with its own ordinances. Any argument that the ordinance is not ambiguous belies the reality that the plain language of the ordinance results in more than one reasonable understanding of the PUD requirements. 3-4 n.2 points out that the developers again tried, unsuccessfully, to change the zoning to Suburban Residential in September, 1996, and to Park Forest in December, 1996. According to Appellees, City approved the proposals but County refused to do so. PK ! ETJ Planning Ordinance 4.10.1 provides: A planned residential development, occupying three (3) acres or more shall be permitted in any A-1, PF or SRD District by special permit. Spearfish city ordinance states that no person may sell or cause to be sold, discharge or cause to be discharged, any pyrotechnics or fireworks of any description whatsoever within the city. of Dentistry, 464 N.W.2d 621, 624 (S.D.1991). This Court has previously stated that [a]ppellate attorney fees may be granted in actions where such fees may be allowable[.