Agenda - Planning Commission - 04/05/2018

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Zoning Bulletin February 25, 2018 I Volume 12 I Issue 4 24:52:07:01 and ARSD 24:52:07:04 included historic districts within the statu- tory definition of "historic property." (See SDCL 1-19A-2(3).) Therefore, explained the court, "ARSD 24:52:07:01's reference to listed `historic proper- ties' cannot be read as language limiting the applicability of the chapter's substantive regulations to individually owned historic properties." Since McKennan Park itself was a listed historic property, and the Sapienzas' individually owned property was within McKennan Park, the court concluded that even through the Sapienzas' home was not individually listed on state or national registers, the State historic -district regulations still applied to the Sapienzas' property. In other words, because the McKennan Park historic district was itself a "historic property" that was listed on state and national registers, the requirements of the State historic -district regulations (i.e., ARSD 24:52:07:04) applied to any new construction or additions within McKennan Park, including the Sapienzas' new home construction. The court also concluded that the issuance of the injunction requiring the Sapienzas to modify their newly -constructed home to comply with the historic -district regulations was warranted. In so concluding, the court explained that in determining whether an injunction requiring modification of the Sapienzas' home was warranted, it had to look at: (1) whether an injunc- tion was statutorily authorized under state law (SDCL 21-8-14); and, if so, (2) whether the circuit court's decision to grant the injunction was an abuse of discretion. The court found that an injunction was statutorily authorized in this case. The court noted that under SDCL 21-8-14(1), an injunction could be granted to prevent the breach of an obligation (i.e., here, the historic -district regula- tions), where "pecuniary compensation would not afford adequate relief." Here, the court determined that pecuniary compensation would not provide adequate relief as the failure of the Sapienzas to construct their home in accor- dance with historic standards: (1) impaired the historical integrity of the McKennan Park historic district; (2) decreased the market value of the McDowells' home; and (3) interfered with the McDowell's use and enjoyment of their home. These "intangible harms" said the court, "are often not rectified by pecuniary compensation." Next, the court concluded that the circuit court had not abused its discretion in issuing the injunction. The court said this was because: (1) the Sapienzas caused the harm, which (2) was irreparable without the injunction because the undermining of the historic district could not be remedied by a payment of money to the McDowells; and (3) the Sapienzas' acts "were not innocent mistakes," as they chose to use a construction company unfamiliar with stan- dards for historic districts, and submitted to the Board renderings that did not accurately reflect what they later built; and (4) the hardship to be suffered by the Sapienzas in modifying their newly -constructed home was not "dispropor- tionate" to the benefit to be gained by the McDowells, whose privacy and use and enjoyment of their home was impacted by the Sapienzas' home. See also: Vieux Carre Property Owners & Associates, Inc. v. City of New Orleans, 246 La. 788, 167 So. 2d 367 (1964). See also: Faulkner v. Town of Chestertown, 290 Md. 214, 428 A.2d 879 (1981). © 2018 Thomson Reuters 7