Agenda - Planning Commission - 04/05/2018

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February 10, 2018 I Volume 12 I Issue 3 Zoning Bulletin The Background/Facts: Since the 1970s, Perli Quarry (the "Quarry") had been in operation in Pennington County (the "County"). The Quarry was a mining operation that extracted sand, gravel, and construction aggregate. At the time the Quarry began operating, the County had not yet adopted zoning ordinances. Zoning ordinances were eventually adopted and amended and updated, including in 2001 and 2010. Under those ordi- nances, the Quany was designed an "A-1 General Agriculture District," which allowed, among others, the following relevant uses: "[t]emporary quarries"; "the extraction of sand, gravel, or minerals," provided that a Construction Permit is obtained in accordance with [the zoning ordi- nances]; and "[m]ining provided a Construction Permit is obtained in ac- cordance with [the zoning ordinances]." The provision of a construction permit was governed by § 507(A) of the County zoning ordinance. Section 507(B) also permitted mining as authorized by a mining permit. In 2015, Croell Redi-Mix Inc. ("Croell") acquired the Quarry. Croell sought to "continue and expand mining operations" at the Quarry. The County Planning Department advised Croell to obtain a construction permit pursuant to § 507(A) of the County zoning ordinance. Croell ap- plied for a construction permit to continue and expand its mining operation. The County Planning Commission approved the application and the Planning Director issued the construction permit. Subsequently, area residents appealed the approval of the construction permit to the County Board of Commissioners (the "Board"). The County Board of Commissioners (the "Board") reversed the approval of the construction peinlit. Croell then appealed the Board's reversal to circuit court. The circuit court found that the Board's decision to reverse the issuance of the construction permit was "arbitrary" because it was based on "unfounded" assertions of area residents. The Board appealed. On appeal, the Board argued that Croell's proposed use of the Quarry in the A-1 General Agriculture District could not be au- thorized under a construction permit. The Board argued that, under the plain language of the zoning ordinance, a construction permit could not be issued for a quarry of the scope and duration intended by Croell. The Board argued that the mining of such a scope as proposed could only be permit- ted if a mining permit was obtained. Again, § 507(A) of the County zoning ordinance allowed mining under a construction permit, subject to "any other" "more restrictive" provision that took precedent. Section 507(B) was a more restrictive provision, requiring a mining permit for extraction of any mineral or substance exceeding 100 cubic yards. Croell extracted more than 100 cubic yards. Croell responded by noting the "historical interpretation, application, and implementation of the [County zoning ordinance] by staff and legal counsel," which "historically and consistently" interpreted the zoning ordinance to allow mining such as Croell's with only a construction permit and without obtaining a mining peiiuit. Croell argued that historical inter- 6 © 2018 Thomson Reuters