#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#24278 ERICKSON, Circuit Judge [ ¶ 1.] The City of Platte (City) sought and received an injunction enjoining Jerry and Myrna Overweg (Overweg) from us ing 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 ne ither 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 subjec t 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 ordinanc e. The R-1 District is for residential#24278

-2- 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 Ov erweg 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 me tal 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 an d Auto Repair. The business was located in his metal garage. [ ¶ 8.] Overweg agrees that the busi ness 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 Over weg'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 be cause "the use from and after 2001 to the present is a different use and a signific ant 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.#24278

-3- STANDARD OF REVIEW [ ¶ 10.] The standard of review is set fo rth 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 oppo rtunity of the trial court to judge the credibility of the witnesses." The trial court' s findings of fact "w ill 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-conformi ng use and was not "a very minimal and sporadic use, incapable of sufficiently exact determination to accord it any#24278

-4- grandfather rights." Id . Further, this Court found that an ordinance "is to be, and should be, strictly construed and any prov isions 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 mino r starter and alternator repairs. In 1997 Overweg applied for and received a building permit for a metal garage for residential purposes on the current proper ty. Initially, the metal garage was used for storage of vehicles, recreational equipment and building supplies while the Overweg's new home was constructed. Th e zoning ordinance went into effect November 1, 1999. On or about April 1, 2001, Overweg terminated his primary employment at the Ford garage and be gan operating Overweg Glass and Auto Repair from his new home and th e metal storage garage. [ ¶ 14.] Based on Meidinger, supra , the trial court was not clearly erroneous when it concluded that prior to the enac tment of the zoning ordinance Overweg's use of the metal garage for a repair bu siness 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 repa irs 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 wa s being constructed at this site. It was#24278

-5- not until May 2001, well after the Novemb er 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.