#24278-a-ERICKSON, Circuit Judge
2007 SD 94
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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CITY OF PLATTE, SOUTH DAKOTA, Plaintiff and Appellee,
v.
JERRY OVERWEG AND
MYRNA OVERWEG, Defendants and Appellants.
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APPEAL FROM THE CIRCUIT COURT
OF THE FIRST JUDICIAL CIRCUIT
CHARLES MIX COUNTY, SOUTH DAKOTA
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HONORABLE LEE D. ANDERSON
Judge
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TIMOTHY R. WHALEN of
Whalen Law Office PC Attorneys for plaintiff
Lake Andes, South Dakota and appellee.
PATRICK J. GLOVER of
Danforth & Meierhenry LLP Attorneys for defendant
Sioux Falls, South Dakota and appellant.
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CONSIDERED ON BRIEFS
ON MAY 21, 2007
OPINION FILED 8/29/07
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ERICKSON, Circuit Judge
[¶1.] The City of Platte (City) sought and received an injunction enjoining
Jerry and Myrna Overweg (Overweg) from using their property for an automobile
and glass repair business. Overweg appeals. We affirm.
FACTS
[¶2.] Overweg is a resident of Platte, South Dakota. Jerry Overweg was
employed at the local Ford dealership and garage on a full-time basis. In 1994, he
obtained a sales tax license and began moonlighting doing minor starter and
alternator repairs from his garage on property not subject to this action.
[¶3.] In 1997, the City began requiring residents to secure a building permit
before engaging in any construction activity. Prior to 1997, the City had a zoning
ordinance. This zoning ordinance was neither valid nor enforceable because it was
enacted without a comprehensive plan being in place. On July 7, 1997, the City
adopted a comprehensive plan. Pursuant to this plan, the City enacted a zoning
ordinance on November 1, 1999. The zoning ordinance permits certain non-
conforming uses that were in effect on the date the zoning ordinance was enacted;
however, the non-conforming uses were not to be enlarged upon, expanded or
extended.
[¶4.] On June 23, 1997, Jerry Overweg received a building permit for a 36' x
50' x 14' metal garage on the property subject to this action. Overweg told the City
Council that the permit was for residential purposes. He then constructed the
metal garage and, later, their home.
[¶5.] The location of the Overweg home and the metal garage are in an R-1
District according to the 1999 zoning ordinance. The R-1 District is for residential
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use only. The R-1 District does not permit any structure to be used for commercial
garages or automobile repair shops.
[¶6.] Prior to July 31, 2001, Jerry Overweg filed sales and use tax reports
with the South Dakota Department of Revenue every six months for work he did
out of his prior garage and his new metal garage. During 1998 through 1999 the
gross revenues from Overweg's repair business were less than $800. In 2000, the
sales tax reports show an increase in gross revenues.
[¶7.] On or about April 1, 2001, Overweg terminated his employment with
the local Ford garage. He then engaged in the automotive and repair business full-
time under the name of Overweg Glass and Auto Repair. The business was located
in his metal garage.
[¶8.] Overweg agrees that the business violates the current zoning
ordinance; however, Overweg contends that the business is grandfathered in under
the non-conforming use provisions of the ordinance.
[¶9.] The circuit court held that Overweg's prior use of the property for
automobile repair was sporadic, limited and occasional. It further held that the use
of the property as an automotive repair business cannot be grandfathered in under
the City's current zoning ordinance because "the use from and after 2001 to the
present is a different use and a significant expansion of the prior use, and not
merely an intensification of a prior use." The circuit court also found that the
current use as a glass repair and automotive repair business is illegal and in
violation of the current zoning ordinance.
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STANDARD OF REVIEW
[¶10.] The standard of review is set forth in SDCL 15-6-52(a). It provides
that the findings of the trial court "may not be set aside unless clearly erroneous,
and due regard shall be given to the opportunity of the trial court to judge the
credibility of the witnesses." The trial court's findings of fact "will not be disturbed
unless . . . [the Supreme Court] . . . is left with a definite and firm conviction that
an error was made." Crisman v. Determan Chiropractic, Inc., 2004 SD 103, ¶ 13,
687 NW2d 507.
ISSUES
Whether Overweg's use of the property prior to the
enactment of the zoning ordinance was sufficient to
establish it as a non-conforming use.
Whether Overweg's use of the property after the City
enacted its zoning ordinance constituted either a
different, enlarged, and/or expanded use of their property.
Whether Overweg's current use of the property is a
violation of the City's Zoning Ordinance.
DECISION
ISSUE
[¶11.] Whether Overweg's use of the property prior to the enactment
of the zoning ordinance was sufficient to establish it as a non-conforming
use.
[¶12.] In Brown County v. Meidinger, 271 NW2d 15, 18 (SD 1978) this Court
addressed the issue of the grandfathering of non-conforming uses. This Court found
that the appellant has the burden of proving that any prior non-conforming use
was, in fact, used for such non-conforming use and was not "a very minimal and
sporadic use, incapable of sufficiently exact determination to accord it any
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grandfather rights." Id. Further, this Court found that an ordinance "is to be, and
should be, strictly construed and any provisions limiting nonconforming uses should
be liberally construed." Id.
[¶13.] Overweg's moonlighting business was originally started at a previous
residence as a part-time business doing minor starter and alternator repairs. In
1997 Overweg applied for and received a building permit for a metal garage for
residential purposes on the current property. Initially, the metal garage was used
for storage of vehicles, recreational equipment and building supplies while the
Overweg's new home was constructed. The zoning ordinance went into effect
November 1, 1999. On or about April 1, 2001, Overweg terminated his primary
employment at the Ford garage and began operating Overweg Glass and Auto
Repair from his new home and the metal storage garage.
[¶14.] Based on Meidinger, supra, the trial court was not clearly erroneous
when it concluded that prior to the enactment of the zoning ordinance Overweg's
use of the metal garage for a repair business was minimal and sporadic. At the
time Overweg started using the metal garage to conduct his glass and auto repair
business he was employed full time for the Ford Garage. The family moved to the
new home near the metal garage in January 1999. During the first six months of
1999 Overweg had $114 in income from the repairs being done in the metal garage.
During the second six months of 1999 that amount increased to $163.85. In late
2000 or early 2001 Overweg quit moonlighting in vehicle repair at the request of his
employer for at least two months. During the first part of 2001 Overweg did very
little repair work while his new residence was being constructed at this site. It was
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not until May 2001, well after the November 1, 1999 enactment date of the
ordinance, that Overweg quit his job with Ford and began working full-time at the
metal garage repairing vehicles.
[¶15.] Overweg has the burden "to clearly establish the prior use to avail
himself of the 'grandfather rights.'" Meidinger, 271 NW2d at 18. This Overweg
failed to do. Prior to enactment of the zoning ordinance, the use of this metal
garage for glass and auto repair was very minimal and sporadic and, incapable of
sufficiently exact determination to accord it any grandfather rights.
[¶16.] As a result of this decision, we need not address the two remaining
issues.
[¶17.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP and
ZINTER, Justices, concur.
[¶18.] ERICKSON, Circuit Judge, for MEIERHENRY, Justice, disqualified.
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