Posted by: Patricia Salkin | September 21, 2013

South Dakota Supreme Court Upholds City’s Refusal to Grant Rezoning Upstream of Floodplain

Tracy Parris resided on property he owned adjacent to Rapid Creek and upstream of Canyon Lake in Rapid City. The property included two buildings constructed by the previous owner. In 2005, Parris filed an application with the City to rezone lot 5 of his property, asking them to rezone portions of the property that fell within a Flood Hazard Zoning District. The City denied the request and also denied the building permits because the proposed expansion 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 where Parris had argued that portions of his property were improperly and illegally zoned within the Flood Hazard Zoning District.

Parris then filed a complaint with the circuit court after which the City partially granted Parris’ rezone request, which would enable him to build to the 500–year floodplain on Lot Five. The zoning adjustment to Parris’ Lot Five was set forth in the Rapid City Ordinance 5151. The City then moved to dismiss Parris’ writ of certiorari.
The circuit court granted the City’s motion, but Parris’ additional claims still remained. Shortly thereafter the litigation was stayed. The stay remained in place until over a year later. Where then the City filed for summary judgment on Parris’ remaining claims. The circuit court granted summary judgment in favor of the City. Parris appealed.

The South Dakota Supreme Court noted that Rapid City had previously suffered a devastating flood after which the City took steps to protect from future flood damage by establishing a 100–year floodplain boundary and a 500–year floodplain boundary surrounding Rapid Creek. The City set forth the specific boundaries of the Floodway Zoning District in Ordinance 1522 which instead of using actual floodplain boundaries they used straight lines and lot lines. Because of this the Zoning District was more expansive than the boundaries of the 500–year floodplain. 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 Zoning District. It was under this policy that Parris’ predecessor was allowed to rezone lots two through four of Parris’ property. However, the policy changed based on findings from the Floodplain Boundary Committee (the Committee). The Committee found that during the flood, much of the debris that caused damage came from upstream. The Committee recommended denying property owners’ requests to rezone floodplain areas upstream between the 100–year and 500–year floodplains. However, property owners downstream would be allowed to rezone floodplain property between the 100–year and 500–year floodplains. Under this policy the City refused to rezone Parris’ property.

Parris argued that Ordinances 1393 and 1434 required the City to allow him to rezone his property between the 100–year and 500–year floodplains as a non-Flood Hazard. The court stated that Ordinances 1393 and 1434 provide general definitions and regulations. Alternatively, Ordinance 1522 provides for specific boundaries that create and outline the actual Floodway Zoning District. While Ordinances 1393 and 1434 provide general definitions, 1522 is the operative ordinance because it outlines the actual Floodway Zoning District. Parris argued that the definition of “regulatory flood” within Ordinances 1393 and 1434 required that his land be rezoned as non-Flood Hazard between the 100–year and 500–year floodplains. The court stated that both ordinances defined a regulatory flood as generally having a frequency of approximately 100 years determined from an analysis of floods on a particular stream and other streams in the same general region.

The court found Parris’ argument that the definition of regulatory flood allowed him to rezone his property without merit as the Ordinances provide general definitions for the floodway zoning and flood fringe districts, and did not specifically outline the boundaries of these districts. Further, the court found that Parris had failed to establish that the City’s zoning set forth in Ordinance 1522 was arbitrary. The court stated that the record reflects that the City’s decision to maintain portions of the Flood Hazard Zoning District upstream was consistent with ensuring the health, safety and general welfare of the citizens. Additionally the Court found that the City’s Policy regarding rezone requests upstream and downstream were valid.

The court concluded that Ordinances 1393 and 1434 did not require that Parris be allowed to rezone his property between the 100–year and 500–year floodplains as non-Flood Hazard. Further, the court stated that Parris had not met his burden of proof that Ordinance 1522 and the City’s Policy were contrary to South Dakota statutes or the City’s zoning plan as required by SDCL 11–4–3.

Parris v City of Rapid City, 2013 WL 3513171 (S.D. 7/10/2013)

The opinion can be accessed at: http://ujs.sd.gov/media/sc/opinions/26372.pdf


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