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Croell Redi-Mix, Inc. v. Pennington County Board of Commissioners

Supreme Court of South Dakota

December 13, 2017

CROELL REDI-MIX, INC., an Iowa Corporation, Appellee,
v.
PENNINGTON COUNTY BOARD OF COMMISSIONERS and MARK DISANTO, LLOYD LACROIX, DEB HADCOCK, GEORGE FEREBEE and RON BUSKERUD, in their capacity as members of the Pennington County Board of Commissioners, Appellants.

          CONSIDERED ON BRIEFS ON OCTOBER 2, 2017

         APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA THE HONORABLE MATTHEW M. BROWN Judge

          THOMAS E. BRADY of Lynn, Jackson, Shultz & Lebrun, PC Spearfish, South Dakota, Attorneys for appellee.

          DONALD P. KNUDSEN of Gunderson, Palmer, Nelson & Ashmore, LLP Rapid City, South Dakota, Attorneys for appellants.

          GILBERTSON, CHIEF JUSTICE

         [¶1.] 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.

         Facts and Procedural History

         [¶2.] 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 operation.

         [¶3.] At the time Perli Quarry began operating in the 1970s, Pennington County had not yet adopted zoning ordinances.[1] 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 § 205(B),

[a]ll agricultural uses shall be allowed in the A-1 General Agriculture District, including, but not limited to, the following:
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 Ordinances.
17. Mining provided a Construction Permit is obtained in accordance with these Zoning Ordinances.

         The 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 § 507(B).

         [¶4.] 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 conditions.

         [¶5.] 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.

         [¶6.] 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 15, 2017.

         [¶7.] The Board of Commissioners appeals, raising the following issues:

1. Whether the Board should have entertained the appeal from the ...

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