South Dakota Supreme Court defers to local interpretation of zoning ordinance

by Eric Christianson

Croell Redi-Mix v. Pennington County Board of Commissioners
(South Dakota Supreme Court, December 13, 2017)

Croell Redi-Mix owns and operates a quarry located in Pennington County, South Dakota. The quarry has been in operation since the 1970s and was acquired by Croell in 2015. Croell intended to expand the operation. After the quarry was opened, but before it was acquired by Croell, Pennington County adopted zoning ordinances. The quarry falls into the “A-1 General Agricultural District” which allows “temporary quarries” ,by right, and mining operations, provided that a construction permit is obtained.

In late 2015, working in consultation with staff from the Pennington County Planning Department, Croell submitted an application for a construction permit to expand its operations. On February 8, 2016 staff issued a recommendation that the permit be granted subject to 11 conditions. The Pennington County Planning Commission reviewed the report and approved the application subject to the recommended conditions that same day.

On February 10, 2016, the Pennington County Board of Commissioners received a letter signed by 37 area residents requesting an appeal of the approval of the permit. The Board of Commissioners held a special meeting on March 2 to consider the appeal. Opponents expressed concerns about the quarry’s expansion including: dust, traffic, availability of groundwater, runoff, and depreciation of property values. At a second hearing the board voted 4-1 to reverse the approval of the permit.

Croell appealed to the circuit court which reversed the Board of Commissioners decision finding:

  1. The residents who sent the letter did not have standing to appeal.
  2. The Commissioners misinterpreted their own ordinance in their decision.
  3. The Commissioners’ decision to deny the permit was arbitrary.

The Board of Commissioners appealed to the South Dakota Supreme Court which granted certiorari.

The Supreme Court reconsidered the three findings of the circuit court.

Standing to Sue Pennington County’s Zoning Ordinance states:

“Any action taken by the Planning Director in administering or enforcing Section 507(A) may be reviewed by the Pennington County Board of Commissioners upon the request of any person affected by such action.” [PCZO § 507(A)(7)(f)]

Croell argues, and the circuit court agreed that this right to appeal only extends to considerations of erosion and storm water control. The Supreme Court reads this passage differently, interpreting the word ‘administer,’ ‘affected,’ and ‘any’ above quite broadly:

PCZO § 507(A) is titled “Erosion and Storm Water Control,” the right to appeal under §507(A)(7)(f) extends to anyone “affected” by “any action taken by the Planning Director in administering . . . Section 507(A)[.]” (Emphasis added.) Noticeably absent from §507(A)(7)(f) is any language limiting the right to appeal to matters involving erosion and storm – water control. Thus, §507(A)(7)(f) provides a right to appeal any action taken by the Planning Director under §507(A). In this case, the action challenged is the Director’s issuance of a construction permit — i.e., the Director’s administering of §507(A)(3).

Because the individuals appealing would be affected by the zoning administrators decision, they have standing to appeal.

Statutory Interpretation Croell argues that the use of its property as a quarry is a permitted use in an A-1 General Agricultural district given that the statute permits temporary quarries and requires only a building permit for the “extraction of sand, gravel, or minerals.”

The County claims that Croell would need to obtain a seperate mining permit as required in the plain language of the ordinance which states, “no extraction of any mineral or substance […] shall be conducted without a Mining Permit.” Here the court identifies a question of statutory interpretation and supports the Commissioners’ interpretation. Further the Court cites the US Supreme Court’s opinion from Chevron v. Nat. Res. Def. Council (1984), which established the principle of “Chevron deference.” Chevron established the principle that courts will defer to the interpretation of those administering a statute as long as that interpretation is “based on a permissible construction of the statute.” In this case the South Dakota Supreme Court found that the Pennington Board of Commissioners interpretation was permissible.

Arbitrariness Because the Supreme Court found that the Board of Commissioners was able to consider more than erosion and storm water control in its decision making, the argument for arbitrariness is moot. The Board’s decision was based on evidence in the scope of its review.

The Supreme Court found that the circuit court erred in reversing the Commissioners’ decision.

RV a permissible accessory use in R-1 district when principle use of lot is for “recreation”

by Hannah Dankbar

Schultz v Mende, et al. and City of Madison Lake
Minnesota Court of Appeals, December 8, 2014

In July 2007 the Mendes applied for a Conditional Use Permit (CUP) to build a boathouse on their property in the City of Madison Lake, Minnesota. The city council approved and issued the permit “with the condition that at the time of sale conditional use will be reviewed” and that the use follow all applicable provisions of the zoning code. In April 2008 the city found out that the Mendes were selling the property. The city sent a letter to remind the Mendes that the property could only be used as explicitly described in the CUP, and the CUP did not allow for human habitation of the property. Chapter 5, Subd. 4(b)(1)(D) of the city ordinance provides that boathouses cannot be used as a dwellings and cannot contain sanitary facilities.

In Spring 2008 Schultz bought the property from the Mendes believing that he could park a RV or camper on the property to sleep in while using the boathouse. The city told Schultz that, “since the conditional use was granted solely for a boat house and not for any type of residential use, parking a recreational vehicle on this property is a violation of the conditional use permit and an illegal use.” In February 2009, the city reiterated this statement. In August 2009 Schultz asked to amend the CUP; the city denied the application.

In response Schultz brought an action against the Mendes arguing that they misrepresented the use of property. The Mendes responded by filing a complaint against the city, saying that the city’s position was unconstitutional and unenforceable and asked for a declaratory ruling to allow for an RV on the property. The district court found that the zoning ordinance did not preclude the use of an RV on the property, the RV being “clearly accessory and incidental to the primary purpose of the property, which is recreation.” The city appealed the decision.

The property is in an R-1 residential district, which generally allows for “low-density, single family residences and directly related complimentary uses.” The General District Provisions prohibit an individual from dwelling or residing in an “accessory building.” An “accessory building” is defined as “[a] use incidental to and on the same lot as a principal use.” The property does not meet the minimum size requirements to meet the standard for single family housing.

The city considered the RV an accessory building. The district court disagreed with this definition, stating that “buildings” is limited to permanent structures. On appeal the city argued that the district court substituted their own definition for what is provided for in the ordinance. The Court of Appeals agreed that there is room for interpretation in the definitions provided by the ordinance; however, in a separate section of the ordinance “recreational vehicle” is defined as “a vehicular portable structure used for amusement, vacation or recreational activities.”  The Court of Appeals determined that implying that recreational vehicles are buildings, when recreational vehicle is specifically defined in the code is an improper interpretation of the ordinance.

The parties disagreed over the principal use of the property. Schultz and the Mendes say that the principal use is recreation, while the city claims it is the boathouse structure. The Court of Appeals agreed with the district court’s conclusion that the principal use is recreation. Given that the principal use of the property is recreation, the question then becomes whether the recreational vehicle is an allowable accessory use.  The city argued that the recreational vehicle could only be used for storage (and not sleeping) because the boathouse – a facility for storing boats – was the principal use.  Given the courts previous conclusion that the primary use was recreation, the city’s argument was inappropriate.  Under a plain reading of the ordinance, both RVs and boathouses are permissible accessory uses to the primary recreational use.  RVs are accessory uses as long as they carry a current registration and are in “operable condition.” Boat houses are also allowed as long as they are not “designed or used for human habitation” and do not “contain water supply or sewage treatment facilities.”

Because the zoning ordinances are ambiguous and the city’s interpretations leads to an “absurd result” the Court of Appeals upheld the district court’s ruling in favor of the Mendes.



Greyhounds are dogs “normally associated with domestic enjoyment” under Dubuque County zoning code

by Gary Taylor

Zenner v. Dubuque County Board of Adjustment
(Iowa Court of Appeals, October 3, 2012)

In July 2003 when the Zenners planned to purchase property in Dubuque County, they requested a variance from the 500-foot setback requirement for kennels. They wanted to build the kennels with a 200-foot setback from the surrounding residences.  After consulting with the county attorney, the Dubuque County Zoning Administrator advised the Zenners that the Kennel would not be allowed in the A-1, Agriculture district.  The district allows kennels, except that “no kennel shall be allowed to harbor, breed, train, buy, sell, exchange or offer for sale any animal to be used solely for attack purposes nor any animal not normally associated with domestic enjoyment.”  The ordinance also lists examples of the types of animals prohibited: “Such ban shall include but shall not be limited to jungle cats, venomous snakes or other reptiles larger than four feet in length, pit bulls, coyotes, wolves, foxes, skunks, deer or other similar wild animals.”  Undaunted, the Zenners went ahead with their plans, purchased the property, and built a kennel that violated the setback requirements for kennels.  Learning of this, the zoning administrator notified the Zenners that they were in violation of the ordinance.  The Zenners appealed the violation to the Dubuque County Zoning Board of Adjustment, which upheld the zoning administrator’s violation.  The district court upheld the decision. An appeal to the Iowa Court of Appeals resulted.

Starting its analysis by noting that a court “construes zoning restrictions strictly in order to favor the free use of property,” the Court of Appeals concluded that the county attorney misinterpreted the county’s zoning ordinance.  The county attorney based his conclusion that the kennel was raising greyhounds  “not normally associated with domestic enjoyment” on the fact that the dogs were for commercial sale. However, the Court pointed out that the zoning ordinance identifies another type of kennel – “kennel, hobby” – that does not include commercial activity or breeding or sale for a consideration.  The implication is that use of the word “kennel” by itself could not be meant to exclude commercial kennels.  “Following the county attorney’s analysis could lead to a determination that any kennel raising dogs for show instead of as pets would not be permitted because it would be ‘a non-exempt commercial use.'”

To further support this conclusion the Court pointed to the existence of Iowa Code 99D.27 – which requires dog tracks to maintain a racing dog adoption program – as “evidence public policy and law in Iowa considers greyhounds to be normally associated with domestic enjoyment.”  The Court also noted that the only dog listed in the banned animals is “pit bull.”  According to the Court greyhounds “possess [none] of the characteristics associated with the litany of prohibited animals.”

The Court of Appeals found in favor of the Zenners, reversing the district court.





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