SD Supreme Court Holds Record Supported Commission’s Denial of Building Owner’s Application for Certificate of Appropriateness in Historic District

This post was authored by Matthew Loescher, Esq.

The City of Deadwood established the Deadwood Historic District, which includes the property located in its downtown area. To guide its Commission in making the determination of whether to issue a certificate of appropriateness, the City enacted the Deadwood City Ordinance (DCO) 17.68.050, which provided a number of general considerations, as well as specific factors for new construction, exterior alteration, and demolition of buildings within the Historic District. Plaintiff Kirwan owned the Gunslinger Saloon located in the Historic District, which functioned as a combination clothing store and bar, as it had at various times since 1879 when the building was originally constructed. In May 2020, Kirwan decided to renovate the exterior of the building by covering the existing facade with vertical slats of rough-hewn wood made from pine trees harvested from the Black Hills – without first seeking permission to do so. After the Commission denied Kirwan’s application made after the fact, the circuit court affirmed the Commission’s decision.

On appeal, Kirwan first argued that DCO 17.68.050 required the Commission to explicitly make findings concerning all the “general” and “exterior alteration” factors when considering a certificate of appropriateness – which he claimed were required because the ordinance used the mandatory verb “shall” followed by a syndetic list. Kirwan’s argued that the Commission failed to follow the directive of the ordinance because “the criteria from DCO 17.68.050 were never formally discussed or considered by either the Historic District Commission or in the Staff Report.” The Staff Report, however, from which Kuchenbecker read large portions at the Commission hearing, begins with two substantive paragraphs discussing the “historic significance of the resource” and the “architectural design of the resource and proposed alterations”—both factors which were specifically listed in DCO 17.68.050. The report also analyzed the “general appearance of the resource” factor of DCO 17.68.050, noting the Gunslinger Saloon building “consists of very simple detailing on the store front and is of traditional design.” The court therefore held the Commission complied with the applicable Deadwood city ordinances.

Kirwan next contended that the Commission’s basis for denying his application – that his proposal was “incongruous with the historical, architectural, archeological or cultural aspects of the district” – were not supported by “substantial evidence” and reflected only “vague reservations” about the appropriateness of Kirwan’s proposal. The court rejected this argument, noting that the transcript from the hearing revealed that the Commission engaged in a substantive review of Kirwan’s application, which centered on his principal claim that using rough-hewn pine on the exterior of his building would advance the historical character of the building. Accordingly, the circuit court’s order upholding the Commission’s denial was affirmed.

Kirwan v City of Deadwood, 2023 WL 3111176 (SD 4/26/2023)