Hines v. BD. OF ADJUSTMENT OF CITY , 2004 S.D. LEXIS 9 ( 2004 )

SABERS, Justice

(dissenting).

[¶ 20.] SDCL 11-4-17 provides in part:

The board of adjustment may:'

(2) Authorize upon appeal in' specific cases such variance from terms of the ordinance not contrary to the public interest, if, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in ■ unnecessary hardship and so that the spirit of the ordinance is observed and substantial justice done.

[¶ 21.] These powers are permissive, not mandatory. In other words, the board of adjustment may, in its discretion, but is not required to:

1. authorize upon appeal in specific cases such variance from terms of the ordinance not contrary to the public interest,

2. if, owing to special conditions, literal enforcement of the provisions of the ordinance will result in unnecessary hardship,

3.so that the spirit of the ordinance is observed and substantial justice is done.

[¶ 22.] Hines failed to establish any of these three criteria and he was required to establish all three to be successful.

[¶ 23.] First, Hines was requesting a variance to move a mobile home from a legally designated trailer park in the City of Miller to an area in Miller which requires a variance. It is easy to see that this was contrary to the public interest. Hines did not show otherwise.

[¶ 24.] Second, Hines made no showing whatsoever that denial of a variance in this instance would result in unnecessary hardship to anyone.

[¶ 25.] Third, Hines made no showing that the spirit of the ordinance was not observed or that a substantial injustice was done.

[¶ 26.] Hines was requesting a variance from an ordinance approved by the City, therefore, he had the responsibility of establishing that the Board should override the ordinance by variance. He failed to do so and that failure does not properly lead to a finding that the Board exceeded its authority. Furthermore, the Board found that allowing a variance in this case would not be in the public interest. As the majority opinion correctly notes, “certiora-ri cannot be used to examine evidence for the purpose of determining the correctness of a finding!.]” Majority opinion, ¶ 10 (quoting Willard, 75 S.D. at 298, 63 N.W.2d at 801). It is not for this Court to second-guess the findings of the Board on certiorari. It was within the authority of the Board to deny the variance if:

1) allowing it would not be in the public interest;

2) there were no special conditions such that disallowing it would result in unnecessary hardship; and

3) if the spirit of the ordinance is observed and substantial justice is done.

The Board did not exceed that authority. Under our standard of review on a writ of certiorari, our inquiry should have ended there.

[¶ 27.] For all of these reasons, we should affirm the circuit court’s determination.

[IT 28.] GILBERTSON, Chief Justice, joins this dissent.