What a variance actually requires

SDCL 11-2-53(2) lets a board of adjustment:

“Authorize upon appeal in specific cases a variance from the terms of the ordinance that is not contrary to the public interest, if, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship and so that the spirit of the ordinance is observed and substantial justice done . . . .”

Dorale's asserted special condition was that he “was unaware of the 9' setback” and that, absent a county zoning compliance officer, nobody warned him.

The court found no support for it in the record. He had signed a permit application agreeing to comply, and — decisively — the Board never found he was unaware. It found instead that the “information presented was unclear as to [Dorale's] action,” and separately that there was “nothing extraordinary in this residential district.”

That second finding was fatal on its own terms: “the Board did not find that any special conditions existed. Absent such a finding, the Board violated SDCL 11-2-53(2) when granting the variance. In addition, the Board's finding that there was ‘nothing extraordinary in this residential district’ precluded it from granting the variance under the terms of the Ordinance.”

The disposition: “Because the Board acted illegally and in excess of its authority by granting a variance that did not comply with either SDCL 11-2-53(2) or the Ordinance, the circuit court should have reversed the decision of the Board and vacated the grant of the variance.”

Having decided that, the court expressly declined to reach the further questions of unnecessary hardship and whether the conditions were self-created.

Certiorari review is wider than the circuit court thought

A point with reach beyond this case. The Supreme Court noted the circuit court “seemed to apply an overly narrow interpretation of the parameters of the review of a board's decision on a writ of certiorari.” Correct that a court cannot review whether a board's findings were right — but “a court considering the merits of a petition for a writ of certiorari can, and should, review whether a board's specific findings, or a lack thereof, make the grant of a variance unlawful.”

The absence of a required finding is reviewable. That is the doctrinal handle for anyone challenging a variance granted next door.

Two layers, independently enforceable

The case is a clean illustration of something South Dakota readers routinely collapse into one. The covenant and the county ordinance are separate instruments with separate enforcers and separate remedies. Dorale's house complied with the covenant and violated the ordinance. The DeCramers' yard, on the association's account, violated the covenant and had nothing to do with the ordinance.

A variance from the county does not touch a covenant, and an architectural committee's approval does not touch a setback. Our architectural review and ADUs and modifications pages cover the covenant side of that boundary.

The part every board will recognise

An enforcement letter invites scrutiny in return. That is not a legal doctrine; it is what happened. A letter about trash produced a survey, a lawsuit, a certiorari petition and a reported appellate decision vacating the letter-writer's variance.

The same dynamic destroyed the covenant in Hood v. Straatmeyer a month later, where the court noted that some of the widespread violations “were perpetrated by the Plaintiffs.” Two South Dakota decisions in four weeks, both turning on what the enforcing party's own property looked like.

What to watch next

The negligence and nuisance suit was a separate proceeding and this appeal did not resolve it. With the variance vacated, the house stands seven feet three inches from the line with no zoning authorisation — and the question of what remedy follows an unpermitted, completed structure is the one the opinion does not answer.