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REX HINES,
Petitioner and Appellant,
v.
BOARD OF ADJUSTMENT OF
THE CITY OF MILLER, (the
Common Council acting thereas),

Respondent and Appellee.

[2004 SD 13]
South Dakota Supreme Court
Appeal from the Circuit Court of
The Third Judicial Circuit
Hand County, South Dakota

Hon. Jon R. Erickson, Judge

ERIC D. SLAATHAUG
Pierre, South Dakota
Attorney for petitioner and appellant.

GREGORY G. REDIGER
Miller, South Dakota
Attorney for respondent and appellee.

Considered on Briefs on November 17, 2003
Opinion Filed 1/28/2004

#22730
KONENKAMP, Justice
[¶1.] Rex Hines requested a variance for one of his lots from a city ordinance restricting the placement of mobile homes. Following a hearing, the Board of Adjustment for the City of Miller denied the request. Hines filed a Petition for a Writ of Certiorari with the circuit court under SDCL 11-4-26. The circuit court ruled that the board was within its authority and jurisdiction when it denied the variance. Because the record of the hearing before the board clearly indicates that the board merely acceded to neighbor objections and failed to follow the city ordinance in considering the variance request, we reverse.
Background
[¶2.] Rex Hines owns four lots on the southwest outskirts of Miller. On the property to the north lies a solitary outbuilding, to the south, an overgrown lot with abandoned cars, and to the east, a sheep pasture. Two houses sit on adjoining lots to the west, one owned by Elma Thorson and the other by Don Joy. Other houses are located in the vicinity, one directly north of the Joy house and another directly south of the Thorson house.
[¶3.] Elaine Lingscheit, Rex’s mother, deeded the lots to Rex in May 2001. The lots were once part of a larger property that originally included the lots along with the house and lots owned by Thorson. The Hines family owned this house and lots until the late 1960s or early 1970s. The family then divided the property, selling the front lots to Thorson. In the transfer, Lingscheit reserved easements for utilities and access across the Thorson property.
[¶4.] One or more mobile homes occupied the lots during the 1970s. Testimony suggested that the homes were most likely gone by 1982 when the City of Miller’s new zoning ordinance came into effect. However, evidence showed that two mobile homes occupied the lots as late as 1976. In any event, the mobile homes were no longer located on the lots by 1984. In 1997, Lingscheit went to the city’s zoning board to request a variance to place a mobile home on the lot. After a hearing, the board denied the request.
[¶ 5.] On July 2, 2001, Brian Hines and Attorney Michelle Hines requested a building permit to have a mobile home moved onto the lot. After some initial confusion on how to proceed, the board determined that a variance would be required. Eventually, a hearing on the variance was scheduled for August 6, 2001.
[¶ 6.] The board arranged the hearing so that the opponents of the request would testify first, followed by the proponents. Local residents with property adjoining or near the Hines property had put together a list of reasons why the variance should not be granted. The list was presented to the board during the hearing by Don Joy, the neighbors’ spokesperson. After Joy’s presentation, several board members questioned Joy about the significance of the list of concerns. Joy admitted to the board that while the list contained concerns such as sewer hookups and snow removal, the neighbors would have no such concerns with sewer hookups and snow removal if a house were placed on the lot instead of a mobile home.
[¶ 7.] Following Joy, attorney Michelle Hines spoke. First, she noted that because the neighbors would not have the same concerns if the issue were whether a house would be placed on the lot, the neighbors concerns were not legitimate. Second, she fully explained the analysis required of the board by city ordinance and state statute. Third, she attempted to show how the request met the required variance test. However, the board continually reverted to the opinions of the neighbors that they did not want a mobile home in the lot. In response to these inquiries, Michelle Hines responded that lacking any legitimate concerns from the neighbors and lacking any response from other residents of the city, the board should find that placing a mobile home on the lot would not be against the public interest.
[¶8.] The board unanimously denied the variance. The transcript of the hearing reveals unequivocally that the board members decided to deny the request solely because the neighbors did not want a mobile home on the lot. As various board members commented: “[T]he real issue is: do the residence [sic] of that area desire a trailer not to be there?

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