Dakota Constructors, Inc. v. Hanson County Board of Adjustment

#30084-a-SRJ
2023 S.D. 38

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

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DAKOTA CONSTRUCTORS, INC., Petitioner and Appellant,

v.

HANSON COUNTY
BOARD OF ADJUSTMENT, Respondent and Appellee.

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APPEAL FROM THE CIRCUIT COURT OF
THE FIRST JUDICIAL CIRCUIT
HANSON COUNTY, SOUTH DAKOTA

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THE HONORABLE CHRIS S. GILES
Judge

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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.

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ARGUED
APRIL 27, 2023
OPINION FILED 07/26/23
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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

1. Except for 2004 and 2005 when the quarry was operated by Spencer
Quarries, Fisher continuously leased the property from the Metz family.
Over the years, Fisher and the Metz family were in discussions on
reclamation plans for the property, and the Metz family commenced a federal
(continued . . .)
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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.

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(. . . continued)
lawsuit involving the reclamation issues. Fisher eventually purchased the
property from the Metz family before the sale to Dakota Constructors.

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[¶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

2. Erickson had indicated in a 2003 correspondence, included in the file, that
tonnage calculations are based on when materials are “mined (extracted)
from the ground.” The correspondence explained that hauling material from
stockpiles on the site would not figure into the tonnage calculation because
(continued . . .)
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[¶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

________________________
(. . . continued)
that same material already would have been accounted for at the time it was
mined.

3. In the Board’s brief, it concedes it had “essentially abandoned its position on
expansion in its [arguments to the circuit court], acknowledging that the
record did not address expansion of the operations. Consequently, the
Board’s argument in this appeal is limited to the cessation of the non-
conforming use for more than one year.”

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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

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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

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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 Redi-Mix, Inc. v.

Pennington Cnty. Bd. of Comm’rs, 2017 S.D. 87, ¶ 20, 905 N.W.2d 344, 350 (quoting

Wegner Auto Co. v. Ballard, 353 N.W.2d 57, 58 (S.D. 1984)). We conclude that the

deference this Court employed in Croell Redi-Mix, Inc. is consistent with the

language of SDCL 11-2-61.1, and we employ this standard in considering the

petition for writ of certiorari before us.

[¶12.] The deference mandated by SDCL 11-2-61.1 does not apply to a wrong

or erroneous construction. For instance, in Croell Redi-Mix, Inc., we determined the

language of the zoning ordinance was unambiguous and expressly prohibited the

board from issuing the requested permit for the purpose intended. Id. ¶ 18, 905

N.W.2d at 349. Thus, we held that “[w]hen the meaning of an ordinance is

unambiguous, the contrary interpretation of those administering the ordinance is

not entitled to deference.” Id. ¶ 20, 905 N.W.2d at 350; see also Dunham v. Lake

Cnty. Comm’n, 2020 S.D. 23, ¶¶ 20–21, 943 N.W.2d 330, 335–36 (reversing denial of

certiorari relief based on the board’s failure to follow a clear ordinance

requirement). Nor does our deference extend to application of state law or

constitutional interpretation. See State v. Powers, 2008 S.D. 119, ¶ 7, 758 N.W.2d

918, 920. “Statutory interpretation and application are questions of law, and are

reviewed by this Court under the de novo standard of review.” Id. (quoting

Rotenberger v. Burghduff, 2007 S.D. 7, ¶ 8, 727 N.W.2d 291, 294). Similarly, this

Court reviews de novo issues of constitutional interpretation. Holborn v. Deuel

Cnty. Bd. of Adjustment, 2021 S.D. 6, ¶ 22, 955 N.W.2d 363, 374.

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[¶13.] Dakota Constructors contends that no deference should be afforded to

the Board because its reading of the Ordinance implicates South Dakota law

incorporated into the Ordinance. Dakota Constructors argues that the circuit court,

contrary to SDCL 11-2-26, “improperly allowed the Board unfettered authority to

regulate a preexisting and continuing nonconforming use.”

[¶14.] Article 5, section 507, of the Ordinance identifies conditional uses that

may be permitted within an agricultural district. One such use is the “[e]xtraction

of sand, gravel, or minerals provided such uses meet requirements for conducting

surface mining activities of SDCL [chapter] 45-6B.” Dakota Constructors argues

that the Ordinance “necessarily incorporates the statutory definition of surface

mining in SDCL 45-6B-3(15)” and that the Board read the term “extraction”

contrary to this statute. 4 Dakota Constructors relies heavily on its predecessor’s

compliance with state mining license requirements and the fact that Fisher was

never required to obtain a CUP to operate the quarry. Its argument is essentially

that the nonconforming use of the property is being a “quarry,” and because the

4. SDCL 45-6B-3(15) defines “surface mining” as “the mining of minerals by
removing the overburden lying above such deposits and mining directly from
the deposits thereby exposed. The term includes mining directly from such
deposits where there is no overburden and such practices as open cut mining,
open pit mining, strip mining, placer mining, quarrying, and dredging[.]”
SDCL 45-6B-3(13) defines “overburden” as “all of the earth and other
materials which are disturbed or removed, in the original state, or as it exists
after removal from its natural state in the process of surface mining[.]”
Dakota Constructors reads these to mean that taking material from
stockpiles is the same as taking exposed material directly from the ground.

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property was never reclaimed, the property never ceased to meet the definition of a

quarry in the Ordinance. 5

[¶15.] The Board argues that its interpretation of the term “extraction,”

which is not otherwise defined in the Ordinance or in state law, is entitled to

deference under SDCL 11-2-61.1. The Board contends that there is no basis for

reversal because Dakota Constructors’ arguments address the Board’s

interpretation of the Ordinance it administers, and its interpretation is a proper

and permissible reading. The Board insists that the use in article 5, section 507 of

the Ordinance is not simply existence as a quarry but, rather, “[e]xtraction of sand,

gravel, or minerals. . . .” The Board maintains that its interpretation is reasonable

and consistent with the purpose of the Ordinance. Holborn, 2021 S.D. 6, ¶ 49, 955

N.W.2d at 381 (holding a board’s interpretation was not erroneous when it was

consistent with ordinance provisions and purpose). The Board contends that

Dakota Constructors’ proposed interpretation of surface mining and overburden as

referenced in SDCL 45-6B-3(15) and SDCL 45-6B-3(13) is strained, contrary to the

Board’s interpretation, and not controlling of the narrow issue. Further, the Board

asserts that state licensing requirements for mining are distinct from land uses in

county zoning and irrelevant to the questions under consideration.

5. The Ordinance defines a “quarry” as “[a] place where consolidated rock has
been or is being removed by means of an open excavation to supply material
for construction, industrial or manufacturing purposes, but does not include a
wayside quarry or open pit metal mine.” However, the term “quarry” does
not appear in the list of conditional uses defined in article 5, section 507, or
anywhere else in the Ordinance. Therefore, this definition does not bear on
the Board’s reading of the term “extraction” as used in section 507.

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1. Interpretation of the Ordinance

[¶16.] The Ordinance is consistent with state law in limiting “any subsequent

use” of property that has “discontinued for a period of more than one year[.]” SDCL

11-2-26 provides:

Any lawful use, lot, or occupancy of land or premises existing at
the time of the adoption of the zoning ordinance may be
continued, even though the use, lot, or occupation does not
conform to the provisions of the ordinance. However, if the
nonconforming use, lot, or occupancy is discontinued for a period
of more than one year, any subsequent use, lot, or occupancy of
the land or premises shall conform with the zoning ordinance.

[¶17.] Article 13, section 1305 of the Ordinance specifies the conditions under

which preexisting nonconforming uses may continue in Hanson County:

Where at the time of passage of this revised ordinance lawful
use of land exists, which would not be permitted by the
regulations imposed by this ordinance, and where such use
involves no individual structure with a replacement cost
exceeding one thousand (1,000) dollars, the use may be
continued so long as it remains otherwise lawful, provided:
...
3. If any nonconforming use of land ceases, for any reason, for a
period of more than one (1) year, any subsequent use of such
land shall conform to the regulations specified by this ordinance
for the district in which such land is located[.]

The Ordinance defines the terms “nonconforming use” and “use” as follows:

Nonconforming Use - A land use or building or structure or
portion thereof lawfully existing at the effective date of this
ordinance, or at the time of any amendment thereto, which does
not conform to the regulations of the zone in which it is located.

Use - Use shall mean the purpose for which a lot or a building or
structure, or any portion thereof, is designed, arranged,
intended, occupies or maintained, and “used” shall have a
corresponding meaning.

[¶18.] There is no dispute that the property is in a district that is currently

zoned agricultural. Article 5, section 501 of the Ordinance explains that “[t]he
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intent of Agricultural District (AG) is to protect agricultural lands and lands

consisting of natural growth from incompatible land uses in order to preserve land

best suited to agricultural uses and land in which the natural environment should

be continued and to limit residential, commercial, and industrial development to

those areas where they are best suited for reasons of practicality and service

delivery.” The extraction of sand, gravel, or minerals is not a permitted principal

use within an agricultural district under the Ordinance. Thus, if extraction at the

site had ceased for more than one year, it was not a continuing prior nonconforming

use. However, article 5, section 507 of the Ordinance authorizes the Board to grant

a CUP for this use of the property.

[¶19.] In determining that the extraction of sand, gravel, and rock was not a

continuing prior nonconforming use, the Board differentiated between the

extraction of material from the ground and the removal of previously extracted and

stockpiled material from the site. The Board determined that the removal of

previously extracted material does not fall within the term “extraction” under the

Ordinance and found that the extraction of sand, gravel, or minerals from their

natural state had not occurred for more than a year.

[¶20.] Extraction is not defined elsewhere in the Ordinance or under state

law. Dakota Constructors’ assertion that the Board was interpreting state law

rather than its own Ordinance is incorrect. The Ordinance allows CUPs for the

“[e]xtraction of sand, gravel, or minerals provided such uses meet requirements for

conducting surface mining activities of SDCL [chapter] 45-6B.” The reference to

SDCL chapter 45-6B under the Ordinance simply requires an operator to be

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licensed under state law; it does not require the Board to construe state statutes to

define the use identified in the Ordinance. By its plain language, the Ordinance

merely imposes a condition of compliance with state law requirements on those uses

previously identified as subject to regulation by that provision of the Ordinance, i.e.,

“[e]xtraction of sand, gravel, or minerals.”

[¶21.] Dakota Constructors also cites cases from other jurisdictions that

support a broader construction of the nonconforming use than applied by the

Board. 6 These cases are not persuasive to our consideration under our limited

certiorari review. While the cases suggest that the Board could have read the term

extraction more broadly, we see nothing in the Board’s reading of its Ordinance that

was wrong or erroneous. Dakota Constructors has failed to show that the Board’s

6. Dakota Constructors expounds upon cases from Wyoming, New Mexico, and
Iowa in detail. See River Springs Ltd. Liability Co. v. Bd. of Cnty. Comm’rs of
Cnty. of Teton, 899 P.2d 1329 (Wyo. 1995) (rejecting, without any apparent
deference, the county’s conclusion that a substantially dormant mine was a
cessation of use when it was not reclaimed and there was no intention to
abandon it); Romero v. Rio Arriba Cnty. Comm’rs, 149 P.3d 945 (N.M. Ct.
App. 2006) (applying substantial evidence review and determining that the
landowner did not have to be extracting new material from the ground to
continue the nonconforming use); Ernst v. Johnson Cnty., 522 N.W.2d 599
(Iowa 1994) (giving “some” deference to interpretation of the ordinance but
determining final construction was a question of law for the court to decide
and holding that due to the nature of the business, maintenance of required
permits and licenses in combination with minimal activity demonstrated an
uninterrupted operation following the initial establishment of a
nonconforming use). Dakota Constructors also briefly surveys cases from
other jurisdictions in support of its contention that diminished use is not
abandonment. See, e.g., FLM Enters., LLC v. Peoria Cnty. Zoning Bd. of
Appeals, 148 N.E.3d 164 (Ill. App. Ct. 2020); South Cnty. Sand & Gravel Co.
v. Town of Charlestown, 446 A.2d 1045 (R.I. 1982); Polk Cnty. v. Martin, 636
P.2d 952 (Or. 1981); Union Quarries, Inc. v. Bd. of Cnty. Comm’rs of Johnson
Cnty., 478 P.2d 181 (Kan. 1970); Hinkle v. Bd. of Zoning Adjustment &
Appeals of Shelby Cnty., 415 S.W.2d 97 (Ky. 1967).

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reading of extraction was contrary to the Ordinance, contrary to state statute, or

otherwise wrong or erroneous.

2. Factual findings

[¶22.] After considering the information presented by Dakota Constructors,

the Board found that “[t]he previous operation has ceased for more than one year

according to all records filed with the State of South Dakota.” Although Dakota

Constructors presented evidence that aggregate continued to be hauled from

existing stockpiles in the quarry, there is no evidence contradicting the reports filed

by Fisher that zero tons of gravel were removed from their natural state on the site

from 2004 to 2021. Dakota Constructors claims, however, that Fisher’s continued

removal of stockpiled aggregate, without the Board requiring a CUP, meant there

was no cessation of the prior nonconforming use. However, the opposite conclusion

follows just as easily—Fisher’s nonconforming mining activities had ceased, and the

Board did not consider merely removing stockpiled aggregate to be extraction.

Finally, Fisher’s maintenance of an active statewide mining license did not

establish continuing prior nonconforming use at the Hanson County property; it

merely provided Fisher with authority from the State to conduct mining activities if

it chose to do so.

[¶23.] There is no claim that the Board acted fraudulently or arbitrarily, or

that its findings were in willful disregard of the indisputable proof. See Powers,

2022 S.D. 77, ¶ 27, 983 N.W.2d at 604. Rather, the Board considered the

information submitted in support of the CUP application and in support of the

argument that a CUP was unnecessary. In fact, it continued its consideration

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across multiple Board meetings to ensure it had all the information it needed to

reach its decision.

[¶24.] Therefore, the circuit court properly denied Dakota Constructors’

petition for writ of certiorari.

[¶25.] Affirmed.

[¶26.] KERN, SALTER, DEVANEY, and MYREN, Justices, concur.

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