#26372-a-GAS

2013 S.D. 51

                           IN THE SUPREME COURT
                                   OF THE
                          STATE OF SOUTH DAKOTA

                                  ****
TRACY PARRIS,                              Plaintiff and Appellant,

      v.

CITY OF RAPID CITY, a
Municipal Corporation of the
State of South Dakota,                     Defendant and Appellee.

                                  ****

                  APPEAL FROM THE CIRCUIT COURT OF
                    THE SEVENTH JUDICIAL CIRCUIT
                  PENNINGTON COUNTY, SOUTH DAKOTA

                                 ****
                    THE HONORABLE JOHN J. DELANEY
                             Retired Judge

                     THE HONORABLE WALLY EKLUND
                                Judge

                                  ****

MICHAEL K. SABERS of
Clayborne, Loos & Sabers, LLP
Rapid City, South Dakota                   Attorneys for plaintiff
                                           and appellant.

TIMOTHY J. BECKER of
Banks, Johnson, Kappelman & Becker, PLLC
Rapid City, South Dakota                   Attorneys for defendant
                                           and appellee.
                                  ****



                                           ARGUED FEBRUARY 12, 2013

                                           OPINION FILED 07/10/13
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SEVERSON, Justice

[¶1.]        Property owner, Tracy Parris (Parris), sought to expand the buildings

on his property. To do so, Parris asked the City of Rapid City (the City) to rezone a

portion of his property zoned within the Flood Hazard Zoning District. The request

was denied. The City also denied Parris’ building permits, in part, because the

proposed expansion extended to a portion of his property zoned within the Flood

Hazard Zoning District. Parris unsuccessfully appealed the City’s denial of his

permits to the Zoning Board of Adjustment. Parris then filed a complaint with the

circuit court, which included: a writ of certiorari, a request for declaratory

judgment, a writ of mandamus, a civil rights claim under 42 U.S.C. § 1983, and a

state constitutional claim. After Parris filed suit, the City agreed to extend the non-

Flood Hazard portion of Parris’ Lot Five to the 500-year floodplain. In 2006, the

circuit court denied Parris’ writ of certiorari but Parris’ additional claims remained.

Shortly thereafter, the litigation was stayed until 2008. In July 2008, the City filed

for summary judgment on Parris’ remaining claims. In 2012, the circuit court

granted summary judgment in favor of the City. Parris appeals. We affirm.

                                     Background

[¶2.]        Parris owned and resided on property adjacent to Rapid Creek and

upstream of Canyon Lake in Rapid City. Parris purchased the 7.76 acre property in

November 2002. The property included two buildings. Both buildings were

constructed in 1988 by the previous property owner. At the closest point, the

buildings were separated by twenty feet. Beginning in 2003, Parris sought to begin




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a two-phase construction project. The first phase would expand the smaller two-

story building, and the second phase would connect the buildings.

[¶3.]        In September 2003, Parris began to excavate and clear land on his

property with the goal of expanding his second building. In March 2005, Parris

filed a rezone application with the City Council, asking that the City rezone

portions of his property that were within the Flood Hazard Zoning District.

Specifically, Parris requested that the City rezone Lot Five of his property. The

City Council denied Parris’ rezone request in August 2005.

[¶4.]        Parris also filed building permits with the City, which were denied in

February 2006. The City denied the permits, in part, because the proposed

expansion crossed into the Flood Hazard Zoning District. Parris appealed the

denial of his permits to the Zoning Board of Adjustment (the Zoning Board). Parris

argued that portions of his property were improperly and illegally zoned within the

Flood Hazard Zoning District. The Zoning Board considered Parris’ appeal at a

hearing held March 7, 2006. The Board denied Parris’ appeal in a 5-0 vote.

[¶5.]        On April 4, 2006, Parris filed a complaint with the circuit court, which

included: a writ of certiorari under SDCL 11-4-26, a request for declaratory

judgment, a writ of mandamus, a civil rights claim under 42 U.S.C. § 1983, and a

state constitutional claim. In May 2006, the City partially granted Parris’ rezone

request, which would enable him to build to the 500-year floodplain on Lot Five.

The zoning adjustment to Parris’ Lot Five was set forth in Rapid City Ordinance

5151. The City then moved to dismiss Parris’ writ of certiorari. The circuit court

granted the City’s motion and dismissed the writ of certiorari in September 2006. A


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few months later, the litigation was stayed. The stay remained in place until over a

year later in March 2008. In July 2008, the City filed for summary judgment on

Parris’ remaining claims. In March 2012, the circuit court granted summary

judgment in favor of the City. Parris appeals.

[¶6.]         To address Parris’ arguments, we must also consider the history of the

floodway zoning surrounding Rapid Creek, which is adjacent to Parris’ property. In

June 1972, Rapid City suffered a devastating flood. 1 Following the flood, the City

took steps to minimize future flood damage by establishing a 100-year floodplain

boundary and a 500-year floodplain boundary surrounding Rapid Creek.

[¶7.]         In 1975, the City set forth the specific boundaries of the Floodway

Zoning District (later renamed the Flood Hazard Zoning District) by passing

Ordinance 1522. In doing so, the City used straight lines and lot lines rather than

the actual floodplain boundaries. Accordingly, the Floodway Zoning District was

more expansive than the boundaries of the 500-year floodplain. Because of this, on

request, the City allowed property owners to rezone portions of their property that

were outside of the actual floodplain but labeled within the Floodway Zoning

District. It is under this policy that Parris’ predecessor in interest was allowed to

rezone lots two through four of Parris’ property.

[¶8.]         However, the City’s general rezone policy changed in 1992 based on the

findings of the Floodplain Boundary Committee (the Committee). The Committee

found that during the 1972 flood, much of the debris that caused damage came from



1.      Over 3,000 people were injured and 238 died. The flood destroyed 1,335
        homes and 5,000 vehicles. Damages totaled $160 million.

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property upstream of Canyon Lake. Specifically, the Committee recommended

undertaking a policy (the Policy) that would deny property owners’ requests to

rezone floodplain areas upstream of Chapel Lane Bridge between the 100-year and

500-year floodplains. However, property owners downstream of Chapel Lane Bridge

would be allowed to rezone floodplain property between the 100-year and 500-year

floodplains. It is under this policy that the City refused to rezone Lot Five of Parris’

property between the 100-year and 500-year floodplains.

[¶9.]        On appeal, we consider the following issues:

   1. Whether the City’s enforcement of Ordinance 1522 and its Policy that
      prohibits Parris from building between the 100-year and 500-year floodplains
      violates Rapid City Ordinance 1393, Rapid City Ordinance 1434, SDCL 11-4-
      3, or SDCL 11-4-8.

   2. Whether the circuit court erred in denying Parris’ writ of certiorari and in
      granting summary judgment in favor of the City on Parris’ remaining claims.

                                Standard of Review

[¶10.]       “The interpretation of an ordinance presents a question of law

reviewable de novo.” Atkinson v. City of Pierre, 2005 S.D. 114, ¶ 10, 706 N.W.2d

791, 795 (quoting City of Marion v. Rapp, 2002 S.D. 146, ¶ 5, 655 N.W.2d 88, 90).

“Our review of certiorari proceedings is limited to whether the challenged court,

officer, board, or tribunal had jurisdiction and whether it regularly pursued its

authority.” Lamar Adver. of S.D., Inc. v. Zoning Bd. of Adjustment, 2012 S.D. 76, ¶

7, 822 N.W.2d 861, 863 (quoting Esling v. Krambeck, 2003 S.D. 59, ¶ 6, 663 N.W.2d

671, 675). Further, “[t]his Court reviews entry of summary judgment de novo.”

Hass v. Wentzlaff, 2012 S.D. 50, ¶ 11, 816 N.W.2d 96, 101 (citing Adrian v. Vonk,

2011 S.D. 84, ¶ 8, 807 N.W.2d 119, 122).


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                                       Analysis

[¶11.]         1.    Whether the City’s enforcement of Ordinance 1522 and its
                     Policy that prohibits Parris from building between the
                     100-year and 500-year floodplains violates Rapid City
                     Ordinance 1393, Rapid City Ordinance 1434, SDCL 11-4-3,
                     or SDCL 11-4-8.

[¶12.]         It is well within a municipality’s “power to enact zoning ordinances.”

Law v. City of Sioux Falls, 2011 S.D. 63, ¶ 9, 804 N.W.2d 428, 432 (citing SDCL 9-

19-3; SDCL ch. 11-4). A “city’s ‘action will be sustained unless in its proceedings it

did some act forbidden by law or neglected to do some act required by law.’” Esling,

2003 S.D. 59, ¶ 10, 663 N.W.2d at 677 (quoting Save Centennial Valley Ass’n, Inc. v.

Schultz, 284 N.W.2d 452, 454 (S.D. 1979)).     “The purpose of zoning is not to . . .

permit the maximum possible enrichment of a particular landowner. Rather,

zoning is designed to benefit a community generally by sensible planning of land

uses[.]” Id. ¶ 12, 725 N.W.2d at 246 (citing 101A C.J.S. Zoning and Land Planning

§ 3 (2005)).

Relationship between Rapid City Ordinances 1393 and 1434, and Rapid City
Ordinance 1522

[¶13.]         Parris argues that Rapid City Ordinances 1393 and 1434 require that

the City allow him to rezone his property between the 100-year and 500-year

floodplains as non-Flood Hazard. It is important to recognize, however, the

relationship between Ordinances 1393 and 1434, and Ordinance 1522. Ordinances

1393 and 1434 provide general definitions and regulations. 2 For example, Rapid




2.       Both ordinances define the floodway as: “The channel of the water course and
         those portions of the adjoining flood plains which are reasonably required to
                                                              (continued . . .)
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City Ordinance 1393 “provid[es] for a floodway zoning district and all things

necessary including but not limited to definitions, boundaries, enforcement,

administration and amendment of said zoning district.” Further, Rapid City

Ordinance 1434 “provid[es] for a flood fringe building district and regulations for

building within said district.” Alternatively, Rapid City Ordinance 1522 provides

specific boundaries that create and outline the actual Floodway Zoning District

(Flood Hazard Zoning District). While Ordinances 1393 and 1434 provide general

definitions, 1522 is the operative ordinance because it outlines the actual Floodway

Zoning District.

[¶14.]       Parris argues that the definition of “regulatory flood” within

Ordinances 1393 and 1434 requires that his land be rezoned as non-Flood Hazard

between the 100-year and 500-year floodplains. Both ordinances define regulatory

flood as follows: “[t]he regulatory flood generally has a frequency of approximately

100 years determined from an analysis of floods on a particular stream and other

streams in the same general region.”

[¶15.]       Parris’ argument that the definition of regulatory flood allows him to

rezone his property is without merit. As stated above, Ordinances 1393 and 1434

provide general definitions for the floodway zoning and flood fringe districts,

respectively. They do not specifically outline the boundaries of these districts.

Rather, the specific boundaries of the Floodway Zoning District are outlined in

Ordinance 1522. Therefore, the definition of “regulatory flood” within Ordinances

________________________
(. . . continued)
         carry and discharge the regulatory flood. This is or may be greater than the
         floodway zoning district.”

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1393 and 1434 does not require that Parris be allowed to rezone his property

between the 100-year and 500-year floodplains as non-Flood Hazard.

Ordinance 1522 is Not Void

[¶16.]       Parris further argues that Ordinance 1522 is void because it exceeds

the actual floodway, utilizes straight-line zoning, and violates SDCL 11-4-3.

“[R]egulations shall be made in accordance with a comprehensive plan . . . to

promote health and the general welfare[.]” SDCL 11-4-3. “Such regulations shall

be made with reasonable consideration, among other things, to the character of the

district, and its peculiar suitability for particular uses, and with a view to

conserving the value of buildings and encouraging the most appropriate use of land

throughout such municipality.” Id.

[¶17.]       “A significant function of local government is to provide for orderly

development by enacting and enforcing zoning ordinances.” Schafer, 2006 S.D. 106,

¶ 12, 725 N.W.2d at 245. Those municipal zoning ordinances are afforded a

presumption of validity. City of Brookings v. Winker, 1996 S.D. 129, ¶ 4, 554

N.W.2d 827, 829 (citing City of Colton v. Corbly, 323 N.W.2d 138, 139 (S.D. 1982)).

“The burden of overcoming this presumption is on the party challenging its

legitimacy and he or she must show the ordinance is unreasonable arbitrary.” Id.

“Something more than abstract considerations is needed to demonstrate

arbitrariness. Id. (citing Tillo v. City of Sioux Falls, 82 S.D. 411, 416, 147 N.W.2d

128, 130 (1966)).

[¶18.]       Further, in challenging the original boundaries of Ordinance 1522,

Parris fails to provide legal authority to support his contention that straight-line


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zoning is inherently arbitrary. SDCL 11-4-2 provides: “For any or all of said

purposes the governing body may divide the municipality into districts of such

number, shape, and area as may be deemed best suited to carry out the purposes of

this chapter[.]” In addition, those districts “shall be made in accordance with a

comprehensive plan[.]” SDCL 11-4-3. Further, this Court has previously stated: “a

property owner can challenge a zoning restriction if the measure is ‘clearly arbitrary

and unreasonable, having no substantial relation to the public health, safety,

morals, or general welfare.’” Schafer, 2006 S.D. 106, ¶ 12, 725 N.W.2d at 246 (citing

Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 395, 47 S. Ct. 114, 121, 71 L.

Ed. 303 (1926)).

[¶19.]       Parris has failed to establish that the City’s zoning set forth in

Ordinance 1522 is arbitrary. On the contrary, the record reflects that the City’s

decision to maintain portions of the Flood Hazard Zoning District upstream of

Chapel Lane Bridge is consistent with ensuring the health, safety and general

welfare of the Rapid City citizens. The floodway was established to ensure the

community’s safety and to minimize property damage in the event of future

flooding. Accordingly, Ordinance 1522 does not violate SDCL 11-4-3 because the

ordinance is consistent with “promot[ing] health and the general welfare.” See

SDCL 11-4-3. Therefore, Ordinance 1522 is not void and the City’s actions do not

violate Ordinance 1393, Ordinance 1434, or SDCL 11-4-3.

The City’s Policy

[¶20.]       Parris also argues that the City’s Policy, whereby property within the

Flood Hazard Zoning District upstream of Chapel Lane Bridge can only be rezoned


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to the 500-year floodplain, violates Ordinances 1393 and 1434, as well as SDCL 11-

4-8. SDCL 11-4-8 provides the notice and procedure for amending a regulation:

“Any such modification . . . shall be proposed in an ordinance presented to the

governing body for adoption in the same manner and upon the same notice as

required for the adoption of the original ordinance.”

[¶21.]       Parris argues that by enforcing its Policy, the City wrongfully overrode

Ordinances 1393 and 1434. As discussed above, however, Ordinances 1393 and

1434 do not conflict with the City’s Policy. The City’s Policy provides that

landowners upstream of Chapel Lane Bridge can seek to rezone portions of their

property that are zoned within the Flood Hazard Zoning District, yet not within the

500-year floodplain. Alternatively, landowners downstream of Chapel Lane Bridge

can rezone portions of their property between the 100-year and 500-year

floodplains. When property owners are granted a rezone, those changes are set

forth within a new ordinance. When the City rezoned Lot Five of Parris’ property,

for example, the change was set forth in Ordinance 5151. Accordingly, when the

City changed the boundary, it acted in compliance with SDCL 11-4-8. Therefore,

the City’s Policy regarding rezone requests upstream and downstream of Chapel

Lane Bridge is valid.

[¶22.]       2.      Whether the circuit court erred in denying Parris’ writ of
                     certiorari and in granting summary judgment in favor of
                     the City on Parris’ remaining claims.

Writ of Certiorari

[¶23.]       Parris argues that the circuit court erred in denying his motion for writ

of certiorari, which challenged the legality of the Zoning Board’s decision to affirm


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the denial of Parris’ building permits. The City denied Parris’ building permits due

to height restrictions, square footage restrictions, and because the plans extended

into an area that was zoned within the Flood Hazard Zoning District. However, we

decline to discuss the height and square footage restrictions because of Parris’

contention that the City’s denial of the building permits based on the height and

square footage restrictions are not a part of this appeal. Further, Parris’ building

permits before the Zoning Board did not include plans to build between the 100-year

and 500-year floodplains. Therefore, because Ordinance 5151 rezoned Parris’

property such that he could build to the 500-year floodplain, Parris’ argument is

moot.

Summary Judgment

[¶24.]       “When reviewing a grant of summary judgment, ‘we decide only

whether genuine issues of material fact exist and whether the law was correctly

applied.’” Fedderson v. Columbia Ins. Grp., 2012 S.D. 90, ¶ 5, 824 N.W.2d 793, 795

(quoting Wehrkamp v. Wehrkamp, 2009 S.D. 84, ¶ 5 n.1, 773 N.W.2d 212, 214 n.1).

When “the material facts are undisputed . . . ‘our review is limited to determining

whether the trial court correctly applied the law.’” Wheeler v. Farmers Mut. Ins. Co.

of Neb., 2012 S.D. 83, ¶ 8, 824 N.W.2d 102, 105 (quoting De Smet Ins. Co. of S.D. v.

Pourier, 2011 S.D. 47, ¶ 4 n.1, 802 N.W.2d 447, 448 n.1). “If there exists any basis

which supports the ruling of the trial court, affirmance of a summary judgment is

proper.” Hass, 2012 S.D. 50, ¶ 11, 816 N.W.2d at 101 (quoting Saathoff v.

Kuhlman, 2009 S.D. 17, ¶ 11, 763 N.W.2d 800, 804).




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[¶25.]          Parris argues that the circuit court erred in granting summary

judgment based on the illegal actions of the City. Specifically, Parris argues that

the City failed to comply with Ordinances 1393 and 1434; the City’s enforcement of

Ordinance 1522 is invalid; and the City’s Policy, which provides that property

owners upstream of Chapel Lane Bridge can only rezone property as non-Flood

Hazard to the 500-year floodplain, is invalid. As discussed above, Parris’ arguments

are without merit. Therefore, we affirm the circuit court’s grant of summary

judgment in favor of the City on counts two through five of Parris’ complaint.

                                      Conclusion

[¶26.]          Ordinances 1393 and 1434 do not require that Parris be allowed to

rezone his property between the 100-year and 500-year floodplains as non-Flood

Hazard. Further, Parris has not met his burden of proof that Ordinance 1522 and

the City’s Policy are contrary to South Dakota statutes or the City’s comprehensive

zoning plan as required by SDCL 11-4-3. Therefore, the circuit court did not err in

dismissing Parris’ writ of certiorari and granting summary judgment in favor of the

City on Parris’ remaining claims.

[¶27.]          Affirmed.

[¶28.]          GILBERTSON, Chief Justice, and ZINTER and WILBUR, Justices,

and DEVANEY, Circuit Court Judge, concur.

[¶29.]          DEVANEY, Circuit Court Judge, sitting for KONENKAMP, Justice,

disqualified.




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