by Gary Taylor
South Dakota Supreme Court, July 26, 2023
Hanson County, adopted its first (it appears from the opinion) zoning ordinance in April 2000. In 2021, Dakota Constructors, Inc. (Dakota) purchased a quarry located in Hanson County that had operated since 1986 under a state license to mine sand, gravel, and rock. After the purchase, the Hanson County Zoning Administrator advised Dakota Constructors that because the quarry is located in a district that is currently zoned as agricultural, it would need a conditional use permit (CUP) in order to extract sand, gravel, and rock from the site. Dakota submitted a CUP application but argued before the Hanson County Board of Adjustment (Board) that it did not need a CUP because the operation of the quarry was a continuing prior nonconforming use. Dakota provided documents and statements concerning the operation at the quarry dating back to 1986; specifically, that material had been hauled from the site continuously since 1986. The submissions also showed, however, that all the materials hauled from the site since 2004 had been extracted from the ground prior to 2004; that is, no aggregate had been mined from the quarry from 2004-2021. A scientist from the South Dakota Department of Agriculture and Natural Resources Mineral and Mining Program explained in a February 2022 email exchange with the county zoning administrator that “[m]ining is not defined in statute under [SDCL chapter 45-6 (addressing sand, gravel and construction aggregate mining)]. We have always gone with the extraction of sand, gravel, or rock from the ground as mining. Thus the removal of stockpiled material is not considered mining.” Based on this evidence, the Board concluded that the previous mining operation had ceased for more than one year, and that as a result a CUP would be necessary for Dakota to proceed with its operation.
As part of the fact finding related to the CUP hearing, the Board received a report from an engineering firm providing recommendations for stabilizing a portion of the quarry that was impacting the integrity of a nearby County road. A slump undermining the fence had come within fifteen feet of the guardrail, and the ground was eroded up to the fence in four other locations. The estimated cost of the repairs to prevent damage to the County road was $620,500.
The Board approved the CUP and established conditions for use of the quarry, including repair of the erosion near the road, before commencing blasting. Dakota filed a petition for writ of certiorari with the circuit court, which the circuit court denied, stating that Dakota “did not meet its burden in showing the Board acted fraudulently or in an arbitrary or willful disregard of undisputed and indisputable proof in its determination that Dakota Constructors needed a [CUP] . . . .”
Dakota appealed to the South Dakota Supreme Court. As the court stated it, “[Dakota’s] argument is essentially that the nonconforming use of the property is being a ‘quarry,’ and because the property was never reclaimed it never ceased to meet the definition of quarry.” On the other hand, the Board focused on the term in the zoning ordinance that permitted “extraction of sand, gravel, or minerals” in the agricultural district with a CUP. The Board contended that the operation had clearly ceased to extract aggregate for more than one year.
State law provides in relevant part that “[t]he court shall give deference to the decision of the approving authority in interpreting the authority’s ordinances.” Even before this statutory language became effective in 2018, the court had employed a judicially-created deference: “[i]n passing on the meaning of a zoning ordinance, the courts will consider and give weight to the construction of the ordinance by those administering the ordinance.” The court found no fault with the Board’s focus on the term “extraction” in interpreting its own ordinance, and concluding that mere hauling away of previously extracted aggregate did not constitute the continuance of the mining operation. Furthermore, continuing to hold a mining permit does not, in itself, establish that a prior nonconforming use was continuing; it merely “provided the authority to conduct mining activities if it chose to do so.”