CONSIDERED ON BRIEFS ON OCTOBER 2, 2017
FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA THE HONORABLE MATTHEW M.
E. BRADY of Lynn, Jackson, Shultz & Lebrun, PC Spearfish,
South Dakota, Attorneys for appellee.
P. KNUDSEN of Gunderson, Palmer, Nelson & Ashmore, LLP
Rapid City, South Dakota, Attorneys for appellants.
GILBERTSON, CHIEF JUSTICE
The Pennington County Planning Director approved a
construction permit for Croell Redi-Mix Inc. to continue
using and expand an existing mining operation. The Pennington
County Board of Commissioners reversed. The circuit court
reversed the Board's decision and ordered the Board to
reinstate the permit. The Board appeals, arguing the issuance
of the permit violates Pennington County's zoning
ordinances. We reverse the circuit court's decision.
and Procedural History
Croell Redi-Mix Inc. owns and operates Perli Quarry, which is
a mining operation that extracts sand, gravel, and
construction aggregate in Pennington County. The process of
mining these materials involves drilling, blasting,
excavating, hauling, crushing, and washing aggregate as well
as stockpiling, loading, selling, and hauling finished
product to customers. This 40-acre mining operation is
located adjacent to U.S. Highway 16, south of Rapid City.
Perli Quarry has been in operation since the 1970s, but
Croell acquired the business in 2015, intending to expand the
At the time Perli Quarry began operating in the 1970s,
Pennington County had not yet adopted zoning
ordinances. The County first adopted temporary zoning
controls in February 1994. It subsequently adopted a
comprehensive plan and zoning ordinances in January 1996.
Those ordinances have been amended and updated at various
times, including in 2001 and 2010. Under these ordinances,
the area that includes Perli Quarry is designated an
"A-1 General Agriculture District, " which is
defined in Pennington County Zoning Ordinance (PCZO) §
205. According to § 205(A), "[t]he intent of the
A-1 General Agriculture District is to provide a district
that will support and encourage agriculture." Under
[a]ll agricultural uses shall be allowed in the A-1 General
Agriculture District, including, but not limited to, the
13. Temporary quarries.
16. Drilling for oil or natural gas or the extraction of
sand, gravel, or minerals, provided that a Construction
Permit is obtained in accordance with these Zoning
17. Mining provided a Construction Permit is obtained in
accordance with these Zoning Ordinances.
issuance of a construction permit is governed by §
507(A). Construction permits are good for one year and may be
extended for an additional year. Alternatively, mining may
also be authorized by way of a mining permit under §
In November 2015, Croell consulted with staff from the
Pennington County Planning Department regarding Croell's
intent to continue and expand mining operations at Perli
Quarry. The Department advised Croell to obtain a
construction permit pursuant to PCZO § 507(A). Croell
submitted an application for a construction permit to
continue and expand its operation. On February 8, 2016, the
Planning Department issued a 10-page report recommending that
a construction permit be issued to Croell with 11 conditions.
The Pennington County Planning Commission reviewed the report
the same day and approved the application. The Pennington
County Planning Director issued a memorandum approving the
permit, numbered CP 15-17, subject to the recommended
On February 10, 2016, the Pennington County Board of
Commissioners received a letter signed by 37 area residents
purporting to appeal the Planning Director's approval of
CP 15-17. Croell challenged the letter's authors'
standing to appeal, but the Board of Commissioners held a
special meeting to discuss the issue on March 2, 2016. At the
meeting, opponents of CP 15-17 expressed concerns regarding
the impact of the quarry's expansion on dust, traffic,
availability of groundwater, runoff, and depreciation of
property values. Planning Department staff informed the Board
of Commissioners that its decision should be limited to
considering only erosion and storm-water-control issues.
After several hours of testimony, the Board of Commissioners
continued the hearing until April 5, 2016, when it held a
second hearing. At the second hearing, Deputy State's
Attorney Jay Alderman informed the Board that historically,
Pennington County did not require a mine in operation prior
to the 2001 amendment of the PCZO to obtain a mining permit.
By a four-to-one vote, the Board of Commissioners reversed
the Planning Director's approval of CP 15-17. Pursuant to
SDCL chapter 7-8, Croell filed an appeal with the circuit
court. On appeal, the court concluded the area residents who
sent the appeal letter did not have standing to appeal the
Director's decision. The court also disagreed with the
Board's interpretation of PCZO §§ 205 and 507.
Finally, the court held that the Board's decision was
arbitrary. On December 27, 2016, the court issued a one-page
memorandum opinion that reversed the Board's decision and
remanded the matter back to the Board with instructions to
affirm the Director's issuance of CP 15-17. The court
issued findings of fact and conclusions of law on February
The Board of Commissioners appeals, raising the following
1. Whether the Board should have entertained the appeal from