A business sought approval from the local historic preservation commission to expand its building in a historic landmark district. The commission denied the application. The Court of Appeals reversed the commission’s ruling, but interpreted the enabling statute without reference to the city ordinances that the statute empowered the city to enact. The state’s enabling statute authorizes municipalities to create ordinances regulating projects that would “encroach upon, damage or destroy” historic property. The Circuit Court focused on this language in its analysis of the commission’s decision, but the Supreme Court noted that this was an enabling statute, and the relevant analysis was the language of the local ordinances under which the undertaking was denied. The court remanded to the Circuit Court for analysis under the appropriate ordinances.
In Matter of the Application of B.Y. DEVELOPMENT, INC., 2010 SD 57 (7/7/2010)
The opinion can be accessed at: http://www.sdjudicial.com/Uploads/opinions/25407.pdf
Special thanks to Deborah Rosenthal, Esq. of Sheppard Mullin for providing this case summary at the 2010 ALI-ABA Land Use Institute.
