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- a - G AS 20 1 3 S
. D . 51 IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA * * * * TRACY PARRIS , Plaintiff and Appell ant ,

v. CITY OF RAPID CITY, a Municipal Corporation of the State of South Dakota , Defendant and Appell ee . * * * * APPEAL FROM THE CIRCUIT COURT OF THE SE VENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA * * * * THE HONORABLE JOHN J. DELANEY Retired Judge THE HONORABLE WALLY EKLUND Judge * * * * MICHAEL K. SABERS of Clayborne, Loos & Sabers, LLP Rapid City , South Dakota Attorneys for plaintiff and appell ant

. TIMOTHY J. BECKER of Banks, Johnson, Kappelman & Becker, PLLC Rapid City , South Dakota Attorney s for defendant and appell ee . * * * *

ARGUED FEBRUARY 1 2 , 201 3 OPINION FILED 

### 07 / 10 / 13#26372

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- SEVERSON, Justice [¶ 1. ] Property owner, Tracy Parris (Parris) , sought to expand the buildings on his property. To do so, Parris asked the City of Rapid City (the City) to rezone a porti on of his property zoned within the Flood Hazard Zoning Dist rict

. The request was denied. T he City also denied Parris’ building permits , in part, because the proposed ex pansion extended to a portion of his property zoned within the Flood Hazard Zoning District . Parris unsuccessfully appealed the City’s denial of his permits to the Zoning Board of Adjustment. Parris then filed a complaint with the circuit court , which included : a writ of certiorari , a request for declaratory judgment, a writ of mandamus , a civil rights claim under 42 U.S.C. § 1983, and a
state co nstitutional claim. After Parris filed suit, the City agreed to extend the non Flood Hazard portion of Parris’ Lot Five to the 500

- year floodplain. In 2006, the circuit court denied Parris’ writ of certiorari but Parris’ add itional claims remained

. Shor tly thereafter, the litigation w as stayed until 2008

. In July 2008, the City filed for summary judgment on Parris’ remaining claims. I n 2012, the circuit court granted summary judgment in favor of the City . Parris appeals. We affirm. Background [¶ 2. ] Par ris own ed and reside d on property adj acent to Rapid Creek and upstream of Canyon Lake in Rapid City. Parris purchased the 7.76 acre property in November 2002. The property include d two buildings. Both buildings were constructed in 1988 by th e previous property owner. At the closest point, the buildings we re separated by twenty feet. Beginning in 2003, Parris sought to begin#26372

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- a two

- phase construction project. The first phase would expand the smaller two

story building, and the second phase w ould c onne ct the buildings

. [¶ 3. ] In Septemb er 2003, Parris began to excavate a nd clear land on his property with the goal of expand ing his second building. In March 2005, Parris filed a rezone application with the City Council, asking that the City rezone portions of his p roperty that were within the Flood Hazard Zoning District. Specifically, Parris req uested that the C ity rezone Lot F ive of his property

. The City Council denied Parris’ rezone request in August 2005

. [¶ 4. ] Parris al so filed building permits with the City, which were denied in February 2006

. T he City denied the permits , in part, because the p ro posed expansion crossed into the Flood H azar d Zoning D istrict. Parris appealed the d enial of his permit s to the Zoning Board of Adjustment (the Zoning Board)

. Parris argued that portions of his property were improperly and illegally zone d within the Flood Hazard Zoning D istrict. The Zoning Board considered Parris ’ appeal at a hearing held March 7, 2006 . The Board denied Parr is’ appeal in a 5

- 0 vote. [¶ 5. ] On April 4, 2006, Parris filed a complaint with the circuit court , which included : a writ of certiorari under SDCL 11

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- 26 , a request for declara tory judgment, a writ of mandamus, a civil rights claim under 42 U

. S

. C

. § 1983, and a state constitutional claim

. In May 2006, the City partially granted Parris’ rezone request, which would enable him to build to the 5 00

- year floodplain on Lot Five

. The zoning adjustment to Parris’ Lot Five was set forth in Rapid City O rdinance
5151. T he City then moved to dismiss Parris’ writ of certiorari. The circuit court granted the City’s motion and dismiss ed the writ of certiorari in September 2006. A#26372

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- few months later, the litigation was stayed . The stay remained in place unti l over a year later i n March 200 8

. I n July 2008, the City filed f or summary judgment on Parris’ remaining claims. I n March 2012, the circuit court granted summary judgment in favor of the C ity. Parris appeal s . [¶ 6. ] To address Parris’ argument s, we must also consider the history of the floodway zoning surrounding Rapid Creek , which is adjacent to Parris’ property . In June 1972, Rapid City suffered a d evastating flood

. 1 Following the flood, the City took steps to minimize future flood damage b y establishing a 100

- year floodplain boundary and a 500

- year floodplain boundary surrounding Rapid Creek

. [¶ 7. ] In 1975, the City set forth the specific boundaries of the Floodway Zoning D istrict (later renamed the Flood Hazard Zoning D istrict ) b y passing O rdinance 1522. In doing so, the City used straight lines and lot lin es rather than the actual flood plain boundaries. Ac cordingly, the Floodway Zoning D istrict was more expansive than the boundaries of the 500

- year floodplain. Because of this, on request, the City allowed property owners to rezone portions of their property that were outside of the actual floodplain but labeled within the Floodway Z oning D istrict. It is under this policy that Parris’ predecessor in interest was allowed to

rezo ne lots two through four of Parris’ property. [¶ 8. ] However, t he City’s general rezone policy changed in 1992 based on the findings of the F loodplain B oundary C ommittee (the Committee) . The C ommittee found that during the 1972 flood, much of t he debris that caused damage came from

1

. Over 3,000 people were injured and 238 died. The flood destroyed 1,335 ho mes and 5,000 vehicles. D amages totaled $160 million.#26372

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- property upstream of Canyon Lake. Specifically, the C ommittee recommended undertaking a policy (the Policy) that would deny property owners’ requests to rezone floodplain areas upstream of Chapel Lane Bridge between the 100

- year and
500

- year floodplain s . However, property owners downstream of Chapel Lane Bridge would be allowed to rezone floodplain property between the 100

- year and 500

- year floodplain s . It is under this policy that the City refused to rezone Lot F iv e of Parris’
proper ty between the 100

- year and 500

- year flood plain s . [¶ 9. ] O n appeal , we consider the following issues : 1. Whether the City’s enforcement of Ordinance 1522 and its Policy that prohibits Parris from building be tween the 100

- year and 5 00

- year floodplain s violates Rapid City Ordinance 1393, Rapid City Ordinance 1434, SDCL 11

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- 3, or SDCL 11

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- 8. 2. Whether the circuit court erred in denying Parris’ writ of certiorari and in granting summary judgment in fav or of the City on Parris’ remainin g claims

. Standard of Review [¶ 10. ] “The interpretation of an ordinance presents a question of law reviewable de novo.” Atkinson v. City of Pierre , 2005 S.D. 114, ¶ 10, 706 N.W.2d 791, 795 (quoting City of Marion v. Rapp , 2002 S.D. 146, ¶ 5, 655 N.W.2d 88, 90). “Our review of certiorari proceedings is limited to whether the challenged court, officer, board, or tribunal had jurisdiction and whether it regularly pursued its authority.” Lamar Adver

. of S.D., Inc. v. Zoning Bd. of Adjustment , 2012 S.D. 76, ¶ 7, 822 N.W.2d 861, 863 (quoting Esling v. Krambeck , 2003 S.D. 59, ¶ 6, 663 N.W.2d 671, 675). Further, “[t]his Court reviews entry of summary judgment de novo.” Hass v. Wentzlaff , 2012 S.D. 50, ¶ 11, 816 N.W.2d 96, 101 (citing Adrian v. Vonk , 2 011 S.D. 84, ¶ 8, 807 N.W.2d 119, 122).#26372

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- Analysis [¶ 11. ] 1 . Whether the City’s enforcement of Ordinance 1522 and its Policy that prohibits Parris from building be tween the 100

- year and 5 00

- year floodplain s violates Rapid City Ordinance 1393, Rapi d City Ordinance 1434 , SDCL 11

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- 3, or SDCL 11

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- 8 . [¶ 12. ] It is well within a municipality’s “power to enact zoning ordinances.” Law v. City of Sioux Falls , 2011 S.D. 6 3 , ¶ 9, 804 N.W.2d 428, 432 (citing SDCL 9

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- 3; SDCL ch. 11

- 4). A “ c ity’s ‘ action will be sustained unless in its proceedings it did some act forbidden by law or neglected to do some act required by law. ’ ” Esling , 2003 S.D. 59, ¶ 10, 663 N.W.2d at 677 ( quoting Save Centennial Valley Ass’n, Inc. v. Schultz , 284 N.W.2d 452, 454 ( S.D. 1979)). “The purpose of zoning is not to . . . permit the maximum possible enrichment of a particular landowner. Rather, zoning is designed to benefit a community generally by sensible planning of land uses[.]” Id. ¶ 12, 725 N.W.2d at 246 (citing 101A C

. J

. S

. Zoning and Land Planning § 3 (2005)). Relationship between Rapid City Ordinances 1393 and 1434, and Rapid City Ordinance 1522 [¶ 13. ] Parris argues that Rapid City Ordinances 1393 and 1434 require that the City allow him to rezone his property between the 1 00

- year and 500

- year floodplain s as non - Flood Hazard

. It is important to recognize, how ever, the relationship between O rdinances 1393 and 1434, and O rdinance 1522. Ordinances 1393 and 1434 provide general definitions and regulations

. 2 For example , Rapid

2

. B oth ordinances define the floodway as: “The channel of the water course and those portions of the adjoining flood plains which are reasonably required to (continued . . .)#26372

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- City Ordinance 1393 “provid[es] for a floodway zoning district and all things necessary including but not limited to definitions, boundaries, enforcement, administration and amendment of said zoning district.” Further, Rapid City Or dinance 1434 “provid[es] for a flood fringe building district and regulations for building within said district.” Alternatively, Rapid City Ordinance 1522 provides specific boundaries that create and outline the actual Floodway Zoning District (Flood Haza rd Zoning District). While O rdinance s 1393 and 1434 provide general definitions, 1522 is the operative ordinance because it outlines the actual Floodway Zoning District

. [¶ 14. ] Parris argues that the definition of “regulatory flood” within O rdina nces 139 3 and 1434 requires that his land be rezoned as non - Flood Hazard between the 100

- year and 500

- year floodplain s . Both ordinances define regulator y flood as follows : “[t]he regulatory flood generally has a frequency of approximately 100 years determ ined from an analysis of floods on a particular stream and other streams in the same general region.” [¶ 15. ] Parris’ argument that the definition of regulatory flood allows him to rezone his property is without merit. As stated above, O rdinance s 1393 and 1434 provide general definitions for the floodway zoning and flood fringe districts , respectively. They do not specifically outline the boundaries of these districts

. Rather, t he specific boundaries of the Floodway Zoning D istrict ar e outlined in O rdinance 1522. Therefore, the definition of “regulatory flood” within O rdinances

_______________ _________ (. . . continued) carry and discharge the regulatory flood. This is or may be greater than the floodway zoning district.”#26372

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- 1393 and 1434 do es not require that Parris be al lowed to rezone his property between the 100

- year and 500

- year floodplain s as non - Flood Hazard

. Ordinance 1522 is Not Voi d [¶ 16. ] Parris further argues that O rdinance 1522 is void because it exceeds the actual floodway , utilizes straight

- line zoning , and violates SDCL 11

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. “[R]egulations shall be made in accordance with a comprehensive plan . . . to promote heal th and the general welfare[.]” SDCL 11

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- 3. “Such regulations shall be made with reasonable consideration, among other things, to the character of the district, an d its peculiar suitability for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality.” Id. [¶ 17. ] “A significant function of local government is to provide for orderly development by enacting and enforcing zoning ordinances.” Schafer , 2006 S.D. 106, ¶ 12, 725 N.W.2d at 245. Those municipal zo ning ordinances are afforded a
p resumption of validity. City of Brookings v. Winker , 1 996 S.D. 129, ¶ 4, 554 N.W.2d 827, 829 (citing City of Colton v. Corbly , 323 N.W.2d 138 , 139 (S.D. 1982) )

. “The b urden of overcoming this presumpti on is on the party challenging i ts legitima cy and he or she must show the ordinance is unreasonable arbitrary.” Id. “Something more than abstract considerations is needed to demonstrate arbitrariness. Id. ( citing Tillo v. City of Sioux Falls , 82 S.D. 411, 416, 147 N.W.2d 128, 130 (1966) ). [¶ 18. ] Further, in challenging the original boundaries of Ordinance 1522, Parris fails to provide legal authority to support his contention that straight

- line#26372

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- zoning is inhe rently arbitrary. SDCL 11

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- 2 provides: “For any or all of said purposes the governing body may divide the municipality into districts of such number, shape, and area as may be deemed best suited to carry out the purposes of this chapter[.]” In addition, those districts “shall be made in accordance with a comprehensive plan[.]” SDCL 11

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- 3. Further, t his Court has previously stated: “a property owner can challenge a zoning restriction if the measure is ‘clearly arbitrary and unreasonable, having no subs tantial relation to the public health, safety, morals, or general welfare.’” S c hafer , 2006 S.D. 106, ¶ 12, 725 N.W.2d at 246 (citing Village of Euclid v. Ambler Realty Co. , 272 U.S. 365, 395, 47 S. Ct. 114, 121, 71 L. Ed. 303 (1926)). [¶ 19. ] Pa rris has failed to estab lish that the City’s zoning set forth in Ordinance 1522 is arbitrary. On the contrary, the record reflects that the City’s decision to maintain portions of the Flood Hazard Zoning District upstream of Chapel Lane Bridge is consiste nt with ensuring the health, safety and general welfare of the Rapid City citizens. The floodway was established to ensure the community’s safety and to minimize property damage in the event of future flooding. Accordingly, O rdinance 1522 does not violat e SDCL 11

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- 3 because the ordinance is consistent with “promot[ing] health and the general welfare.” See SDCL 11

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- 3. Therefore, Ordinance 15 2 2 is not void and the City’ s actions do not violate Ordinance 1393 , Ordinance 1434 , or SDCL 11

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. The City’s P olicy [¶ 20. ] Parris also argues that the City’s Policy , whereby property within the Flood Hazard Zoning District upstream of Chapel Lane Bridge can only be rezoned#26372

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- to the 5 00

- year floodplain , violates O rdinances 1393 and 1434, as well as SDCL 11

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- 8. SDCL 11

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- 8 provides the notice and procedure for amending a regulation: “Any such modification . . . shall be proposed in an ordinance presented to the governing body for adoption in the same manner and upon the same notice as required for the adopti on of the original ordi n ance.” [¶ 21. ] Parris argues that by enforcing its Policy, the City wrongfully overrode O rdinances 1393 and 1434. As discussed above, however, O rdinances 1393 and 1434 do not conflict with the City’s Policy. The City’s P olicy provides that landowners upstream of Chapel Lane Bridge can seek to rezone portions of their property that are zoned within the Flood Hazard Zoning D istrict, yet not within the
500

- year floodplain. Alternatively, landowners downstream of Chapel Lane Bridge can rezone portions of their property between the 100

- year and 500

- year floodplain s . When property owners are granted a rezone , those changes are set forth within a new ordinan ce. When the City rezoned Lot Five of Parris’ p roperty, for example, t h e chang e was set forth in O rdinance 5151. Accordingly , when the City change d the boundary, it act ed in compliance with SDCL 11

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- 8. Therefore, the City’s Policy regarding rezone requests upstream and downstream of Chapel Lane Bridge is valid. [¶ 22. ] 2 . Whether the circuit court erred in denying Parris’ writ of certiorari and in granting summary judgment in favor of the City on Parris’ remaining claims. Writ of Certiorari [¶ 23. ] Parris argues that the circuit court er red in denying hi s motion for writ of certiorari , which challenged the legality of the Zoning Board’s decision to affirm#26372

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- the denial of Parris’ building permits

. T he City denied Parris’ building permits due to height restrictions, square footage restrictions, and because t he plans extended into an area that was zoned within the Flood Hazard Zoning District. However, we decline to discuss the height and square footage restrictions because of Parris’ contention that the City’s denial of the building permits based on the heig ht and square footage restrictions are not a part of this appeal. Further, Parris’ building permits before the Zoning Board did not include plans to build be tween the 100

- year and 500

- year flo od plain s . Therefore, because Ordinance 5151 rezoned Parris’
pr operty such that he could build to the 500

- year floodplain, Parris’ argument is
moot. Summary Judgment [¶ 24. ] “When reviewing a grant of summary judgment, ‘we decide only whether genuine issues of material fact exist and whether the law was correc tly applied. ’ ” Fedderson v. Columbia Ins. Grp. , 2012 S.D. 90, ¶ 5, 824 N.W. 2 d 793, 795 ( quoting Wehrkamp v. Wehrkamp , 2009 S.D. 84, ¶ 5 n.1, 773 N.W.2d 212, 214 n.1). When “the material facts are undisputed . . . ‘our review is limited to determining whe ther the trial court correctly applied the law.’” Wheeler v. Farmers Mut. Ins. Co. of Neb. , 2012 S.D. 83, ¶ 8, 824 N.W.2d 102, 105 ( quoting De Smet Ins. Co. of S.D. v. Pourier , 2011 S.D. 47, ¶ 4 n.1, 802 N.W.2d 447, 448 n.1). “If there exists any basis

w hich supports the ruling of the trial court, affirmance of a summary judgment is proper.” Hass , 2012 S.D. 50, ¶ 11, 816 N.W.2d at 101 ( quoting Saathoff v. Kuhlman , 2009 S.D. 17, ¶ 11, 763 N.W.2d 800, 804).#26372

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- [¶ 25. ] Parris argues that the circuit co urt erred in granting summary judgment based on the illegal actions of the City . Specifically, Parris argues that the City failed to comply with Ordinances 1393 and 1434; the City’s enforcement of Ordinance 1522 is invalid; and the City’s Policy, which pr ovides that property owners upstream of Chapel Lane Bridge can only rezone property as non

- Flood Hazard to the 500

- year floodplain , is invalid. As discussed above, Parris’ arguments

are without merit. Therefore, we affirm the circuit court’s grant of sum mary judgment in favor of the City on counts two through five of Parris’ complaint. Conclusion [¶ 26. ] Ordinances 1393 and 1434 do not require that Parris be allowed to rezone his property between the 100

- year and 500

- year floodplain s as non - Flood Hazard. Further, Parris has not met his burden of proof that O rdinance 1522 and the City’s Policy are contrary to South Dakota statutes or the City’s comprehensive zoning plan as required by SDCL 11

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. Therefore, t he circuit court did not err in dismis sing Parris’ writ of certiorari and granting summary judgment in favor of the City on Parris’ remaining claims. [¶ 27. ] Affirm ed. [¶ 28. ] GILBERTSON, Chief Justice , and ZINTER and WILBUR, Justices, and DEVANEY , Circuit Court Judge, concur

. [¶ 29. ] DEVANEY , Circuit Court Judge, sitting for KONENKAMP , Justice, disqualified.