Karen Dunham won the battle but did not win the war in her efforts to stop Hodne Homes, LLC from building a showroom on property adjoining hers. On Tuesday, the Lake County Commission, acting as the Board of Adjustment, voted unanimously to give a variance permit to Hodne Homes, LLC for the structure.
Dunham's attorney, Jimmy Nasser, objected to the series of votes through which the county's attorney, Jack Hieb, guided commissioners, saying that kind of activity would not be allowed in a court of law and noting there had been no real discussion on any of the motions.
"We object that there has been no factual findings. We need to know why you chose to make that decision," Nasser said.
The public hearing was held in the courtroom of the Lake County Courthouse to address an issue the South Dakota Supreme Court determined the commission had not considered during the initial hearing in April 2018, when Hodne Homes, LLC sought a variance to build a 47x120-foot storage shed to show boats for sale by Sodak's Marina, LLC.
Of the four neighbors contacted, only Dunham objected, citing concerns about the size and concerns about drainage issues.
After the variance was granted, Dunham turned to the courts to stop action. However, the Hon. Kent A. Shelton, who heard the case, affirmed the commission's decision. Less than a month after the memorandum explaining the court's decision was filed, Nasser filed an appeal on behalf of Dunham.
In an opinion filed on April 29 of this year, the Court affirmed in part the lower court's decision, but also reversed the lower court's decision on one point. In another case, the Court identified a two-prong test for granting a variance. The Board of Adjustment must consider both the public interest and special conditions.
The Court determined that in Dunham's case, the board had considered public interest but "failed to consider the second prong requiring the existence of special conditions to grant a variance."
On Tuesday, the board sought to rectify that failure, hearing from attorneys for both of the involved parties and several community members who supported Hodne Homes, LLC.
Attorney Michael Unke was the first to address the board, noting, "I feel this is a fairly simple case because we have guidance from the South Dakota Supreme Court."
Lake County ordinances state that a variance may be granted when "owing to the conditions peculiar to the property and not the result of the actions of the applicant, a literal enforcement of the ordinance would result in unnecessary and undue hardship."
The Supreme Court explained how the board had previously failed to take this into consideration, providing specific points to be addressed in Tuesday's hearing.
In the written opinion, the Court indicated: "More specifically, the Board made no determination that because of a particular feature of the property at the time the Ordinance was enacted, or because of some `extraordinary and exceptional' situation on the property, a variance was necessary. The Board also failed to consider whether the denial of the variance to build a facility exceeding the setback requirements would create `peculiar and exceptional practical difficulties' or an `exceptional and undue hardship' on Hodne Homes."
Unke said the property was unique to Lake County because it's the only place in the county where commercial property adjoins Lake Park District 3 property. He further indicated the size was necessary to facilitate storage and to accommodate the tractors needed to load the boats. He said it would have created an "extreme financial hardship" if Hodne Homes, LLC had not been allowed to build the structure.
He emphasized that the building was used only for storage, that it does not contain a salesroom or service area.
"It's plain and simple commercial storage," Unke said. He also pointed out that the county benefits from sales tax generated by the sale of boats and pontoons stored there.
Nasser interpreted the Supreme Court guidelines differently, saying the board needed to look at the features of the property itself, and indicated with photographs that the facility is being used for sales because signage identifies it as "Sodak's Marina Showroom."
Eric Sinclair and Terry Schultz were among those who spoke on behalf of Hodne Homes, LLC. Sinclair noted they are great neighbors and "have a track record of running successful businesses." Schultz indicated the business "is a growing part of the county."
Hieb laid out the legal issues for the board and then guided commissioners through a series of votes covering the issues identified by the Supreme Court.