PIERRE, S.D. (KELO) — The South Dakota Supreme Court has ruled in favor of a couple who had been blocked from building a house in Day County.
In an opinion publicly released Thursday, the state’s highest court said that the 30-day period for an appeal ran out before the Day County Board of Adjustment reconsidered a variance sought by Les and Julie Gonsor.
The Gonsors were told in 2015 that their property violated Day County’s planning and zoning ordinance after they altered the grading and added rocks to the property. They sought a variance that the Day County Board of Adjustment granted effective December 15, 2015.
However, three residents at the meeting who didn’t like the decision but who didn’t testify against the variance spoke afterward to Day County State’s Attorney Danny Smeins, who suggested they should request a rehearing. They spoke to the county zoning administrator and at the next meeting one of them expressed his disagreement with the variance.
Two men representing the Beals Pickerel Lake Subdivision Association sent a letter on January 14, 2016, asking the county board to reconsider the variance. On March 29, 2016, the board decided to change the variance “to include the removal of the rock/boulders and to reslope the property adjacent to the road for better visibility and safety reasons as well as easier snow removal.”
The zoning administrator later told the Gonsors that a legal device known as a stay had been put on their property blocking construction of a house until the revised conditions were met.
In June 2020, the Gonsors applied to the county for a permit to build a house on the property. The county board denied the request, because the Gonsors hadn’t complied with the revised conditions.
After a trial, Circuit Judge Jon Flemmer ruled in favor of the county. The Gonsors appealed his decision to the Supreme Court.
The justices unanimously overruled Judge Flemmer. Justice Scott Myren wrote the high court’s opinion.
He cited a state law that specifically said, regarding an appeal of a zoning board’s decision, “The petition shall be a petition for writ of certiorari presented to the court within thirty days after the filing of the decision in the office of the board of adjustment.”
The people who asked the board to reconsider the decision didn’t follow the correct process.
“The exclusive means to challenge the Board of Adjustment’s November 2015 decision approving the variance was through a writ of certiorari under SDCL 11-2-61. Without any effort to petition for a writ of certiorari under SDCL 11-2-61, the November 2015 variance decision became final 30 days after it was filed. Because the circuit court determined this decision had been filed by December 15, 2015, the Board of Adjustment’s November 2015 variance decision became final no later than January 14, 2016,” Justice Myren wrote.
The justice cited a 2007 decision and found that “any authority the Board of Adjustment had to
reconsider its November 2015 decision ceased to exist when that decision became final on January 14, 2016. The filing of a request for reconsideration did not extend the time to appeal, and the Board of Adjustment did not reconsider the variance before the appeal time expired. Consequently, the Board of Adjustment no longer had the authority to reconsider the variance when it did so on March 29, 2016.”
