APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA HONORABLE PETER H. LIEBERMAN Judge.
The opinion of the court was delivered by: Sabers, Retired Justice
CONSIDERED ON BRIEFS ON MARCH 23, 2009
[¶1.] Goos RV Center, Lee Goos, Sr., Terry Goos and Lee Goos, Jr., (collectively Goos) appeal the circuit court's decision affirming the Minnehaha County Commission's decision to grant a conditional use permit to Benson Farms, Inc., for gravel extraction. We affirm.
[¶2.] Benson Farms owns property located north of I-90 near Highway 38 in Minnehaha County. That property is zoned in the A-1 Agriculture District. Pursuant to the Minnehaha County zoning ordinances, rock, sand and gravel extraction is allowed in that area as a conditional use if done in conformity with Article 12.08 of those ordinances. Benson Farms entered into an agreement with Myrl & Roy's Paving, Inc., for the removal of gravel from a portion of its property. That agreement was conditioned on obtaining a conditional use permit allowing the gravel extraction. The agreement allowed no more than fifteen acres to be disturbed at a time and required reclamation of the site. Benson Farms applied for a conditional use permit with the Minnehaha County Planning Commission.
[¶3.] Goos RV Center is a former campground that has been converted to a recreational vehicle show area. That operation, along with the residential property of Lee Goos, Jr., is located adjacent to Benson Farms and has operated there for fifteen years. Goos alleged that the gravel operation would devastate the business and decrease the property value. Goos was concerned primarily with dust from the operation, noise and increased truck traffic in the area.
[¶4.] These properties are located in the Skunk Creek area of Minnehaha County, an area that is known to contain deposits of gravel. In fact, there is an old gravel pit approximately one mile north of the Goos property and several other pits in the surrounding area. Further, the comprehensive plan for the County indicates that "extractions sites have also concentrated along Skunk Creek west of Sioux Falls."
[¶5.] Scott Anderson, Minnehaha County Planning Director, evaluated the application. He visited the site, took note of the surrounding area, inspected the road infrastructure and prepared a staff report recommending the grant of the conditional use permit with specified conditions. After the matter was initially presented to the Planning Commission, it was deferred to allow for a hydrology study and the Planning Commission also requested a berm be added next to the Goos property. At a second hearing, the Planning Commission received the hydrology report, which indicated no adverse impact on the nearby wells because of the operation. A revised site plan also included the addition of a six-foot berm. That berm, to be located between a haul road and the Goos property, was estimated to be sixty-feet wide and was to be seeded with vegetation and trees. An agreement was also entered that required Benson Farms to maintain the township road. The Planning Commission heard objections to the application and ultimately granted the permit with twenty-one conditions.*fn1 Goos appealed that decision to the County Commission.
[¶6.] Following a hearing on the application, where Goos appeared and was represented by counsel, the County Commission changed two of the conditions, dealing with hours of operation and the amount of a surety bond, and upheld the decision to grant the permit. Goos appealed that decision to the circuit court. The circuit court, after visiting the site and hearing the objections to the permit, affirmed the County Commission's decision. The circuit court found that Goos failed to substantiate their claims with any evidence. It also found the proposed gravel operation would not create closures or traffic disruption and would not impact the visibility of the business from I-90. The gravel extraction and crushing operation would most likely take place three weeks a year and the remaining season would consist of loading trucks. The circuit court also did not find testimony of Bill Hegg, a realtor, persuasive as to loss of value to the Goos property as it was not supported by any hard evidence such as appraisals or market studies but, instead, consisted mostly of generalizations.
[¶7.] Goos appeals raising four issues:
1. Whether the County Commission's approval of the conditional use permit was contrary to the comprehensive plan.
2. Whether the County Commission's approval of the conditional use permit violated its zoning ordinances.
3. Whether the County Commission's approval of the conditional use permit was ...