#24278-a-ERICKSON, Circuit Judge 

2007 SD 94

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

CITY OF PLATTE, SOUTH DAKOTA, Plaintiff and Appellee, 

 v. 

JERRY OVERWEG AND 

MYRNA OVERWEG, Defendants and Appellants. 

* * * * 

APPEAL FROM THE CIRCUIT COURT 

 OF THE FIRST JUDICIAL CIRCUIT 

CHARLES MIX COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE LEE D. ANDERSON 

Judge 

* * * * 

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. 

* * * * 

 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 nonconforming 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 fulltime 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.