Dakota Constructors, Inc. v. Hanson Cnty. Bd. of Adjustment

994 N.W.2d 222

DAKOTA CONSTRUCTORS, INC., Petitioner and Appellant, v. HANSON COUNTY BOARD OF ADJUSTMENT, Respondent and Appellee.

#30084

Supreme Court of South Dakota.

ARGUED APRIL 27, 2023

OPINION FILED JULY 26, 2023

PAUL H. LINDE of Schaffer Law Office, Prof. LLC, Sioux Falls, South Dakota, Attorneys for petitioner and appellant.

JACK H. HIEB, ZACHARY W. PETERSON of Richardson, Wyly, Wise, Sauck & Hieb, LLP, Aberdeen, South Dakota, Attorneys for respondent and appellee.

JENSEN, Chief Justice

[¶1.] In 2021, Dakota Constructors, Inc. (Dakota Constructors) purchased a quarry located in Hanson County that had operated since 1986 under a state license to mine sand, gravel, and rock. The Hanson County Zoning Ordinance (Ordinance) took effect in April 2000. 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) under the Ordinance in order to extract sand, gravel, and rock from the site. Dakota Constructors 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. The Board disagreed and determined that Dakota Constructors did need a CUP because the nonconforming use contemplated—the extraction of materials from the site—had ceased for more than one year. The Board granted the CUP application with specified conditions. Dakota Constructors petitioned for a writ of certiorari. Following a hearing, the circuit court denied the writ. Dakota Constructors appeals. We affirm.

Background

[¶2.] Fisher Sand & Gravel Co. (Fisher) initially operated a quarry at the property. ¹ From and after 1986, Fisher annually renewed its mining license with the South Dakota Department of Environmental and Natural Resources (now the Department of Agriculture and Natural Resources) Mineral and Mining Program, pursuant to SDCL chapter 45-6. The renewal process included filing annual reports and giving public notices of its intent to continue the operation at the site. Fisher filed an annual mine report with the Department on January 25, 2021, along with notice of intent to continue the quarry operation through 2031. After Dakota Constructors purchased the operation, the Department approved the transfer of reclamation liabilities from Fisher to Dakota Constructors for the Hanson County site.

[¶3.] At the direction of the County Zoning Administrator, Dakota Constructors submitted a CUP application to Hanson County on November 15, 2021. A Board hearing on the application was initially set for December 22, 2021, but was deferred to January 26, 2022. During this time, 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. The report discussed needed repairs in an area where a fence had been constructed ten feet from the highwall of the quarry and twenty feet from the guardrail. 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 was $620,500.

[¶4.] At the hearing, Dakota Constructors argued to the Board that a CUP was not required because the operation of the quarry was a continuing prior nonconforming use. The Board received voluminous documents and statements concerning the operation at the quarry dating back to 1986. These submissions showed the quarry operated as a state-licensed mining operation since 1986 and that aggregate in the form of sand, gravel, and rock had been continuously removed from the quarry since that time. Dakota Constructors presented an affidavit from Clinton Degen, former Hanson County Highway Superintendent, who stated that he hauled material from the property each year except for 2004 and 2005 when Spencer Quarries was operating and hauling aggregate from the site.

[¶5.] However, the submissions also showed that since 2004 the sand, gravel, and rock removed from the quarry had come from stockpiles stored at the site that had been extracted from the ground prior to 2004. In particular, the annual mine reports required by SDCL 45-6-72 showed that zero tons of aggregate were mined from the quarry from 2004–2021. Michael G. Erickson, a scientist from the Department, explained in a February 2022 email exchange with the 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." ²

[¶6.] The Board held hearings on three dates to consider the CUP application. On February 23, the Board made findings determining that the previous operation of the quarry had ceased for more than one year and was thus not a prior nonconforming use that could continue without a CUP. After determining a CUP was necessary for Dakota Constructors to operate the quarry, the Board approved the CUP and established conditions for use of the quarry, including repair of the erosion near the road, before commencing blasting. The Board's findings included:

1. [Dakota Constructors] presented a legal statement to the Board. Statement is on file with the Hanson County Zoning Office.

2. The requested conditional use is permitted under Article 5, Section 507 of Hanson County Zoning Ordinance.

3. The request does require a Conditional Use permit. The current owner will be expanding to occupy a greater area of land. Article 3, Section 1305, Hanson County Zoning Ordinance. ³

4. The previous operation has ceased for more than one year according to all records filed with the State of South Dakota. Article 3, Section 1305, Hanson County Zoning Ordinance.

[¶7.] Dakota Constructors filed a petition for writ of certiorari with the circuit court. The court held a hearing on the petition and issued a memorandum decision and a corresponding order denying the writ. The court concluded that the Board's interpretation of the Ordinance must be given deference under SDCL 11-2-61.1 and that the Board had exclusive authority to determine whether the prior nonconforming land use had ceased for over a year. The court also found that Dakota Constructors "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] ...."

[¶8.] Dakota Constructors appeals and raises a single issue, which we restate as follows:

Whether the circuit court erred in denying the writ of certiorari challenging the Board's decision to require Dakota Constructors to obtain a conditional use permit to extract gravel, sand, or minerals from its quarry.

Analysis

[¶9.] Decisions granting or denying CUPs are reviewed under the writ of certiorari standard. SDCL 11-2-61.1. The statute provides as follows:

Any appeal of a decision of granting or denying a conditional use permit shall be brought under a petition, duly verified, for a writ of certiorari directed to the approving authority and, notwithstanding any provision of law to the contrary, shall be determined under a writ of certiorari standard regardless of the form of the approving authority. The court shall give deference to the decision of the approving authority in interpreting the authority's ordinances.

Id.

[¶10.] "The review upon writ of certiorari cannot be extended further than to determine whether the inferior court, tribunal, board, or officer, has regularly pursued the authority of such court, tribunal, board, or officer." SDCL 21-31-8. "[T]he statute ‘limit[s] certiorari review "to whether the board of adjustment had jurisdiction over the matter and whether it pursued in a regular manner the authority conferred upon it." ’ " Powers v. Turner Cnty. Bd. of Adjustment , 2022 S.D. 77, ¶ 27, 983 N.W.2d 594, 604 (alterations in original) (quoting Ehlebracht v. Deuel Cnty. Plan. Comm'n , 2022 S.D. 18, ¶ 12, 972 N.W.2d 464, 470 ). "The test of jurisdiction is whether there was power to enter upon the inquiry[.]" Id. (alteration in original) (quoting Ehlebracht , 2022 S.D. 18, ¶ 12, 972 N.W.2d at 470 ). "With a writ of certiorari, we do not review whether the [board's] decision is right or wrong." Id. (alteration in original) (quoting Ehlebracht , 2022 S.D. 18, ¶ 13, 972 N.W.2d at 470 ). "Courts must not review the merits of a petition or evidence for the purpose of determining the correctness of a finding, in the absence of a showing that the Board ‘acted fraudulently or in arbitrary or willful disregard of undisputed and indisputable proof.’ " Id. (quoting Ehlebracht , 2022 S.D. 18, ¶ 13, 972 N.W.2d at 470 ). "[W]e will sustain the lower tribunal's decision ‘unless it did some act forbidden by law or neglected to do some act required by law.’ " Id. (alteration in original) (quoting Ehlebracht , 2022 S.D. 18, ¶ 13, 972 N.W.2d at 470 ).

[¶11.] We have not directly addressed the deference mandated by SDCL 11-2-61.1 for this Court's review of a board of adjustment's interpretation of a county zoning ordinance. Enacted in 2018, SDCL 11-2-61.1 provides in relevant part that "[t]he court shall give deference to the decision of the approving authority in interpreting the authority's ordinances." Yet, even before this statutory language became effective, we 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. However, ‘an administrative construction is not binding on the court, which is free to overrule the construction if it is deemed to be wrong or erroneous.’ " Croell...