Agenda - Planning Commission - 04/05/2018

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Zoning Bulletin February 10, 2018 I Volume 12 I Issue 3 pretation was entitled to deference here. Croell also contended that the mining -permit requirement of the zoning ordinance did not apply to the Quarry since it had been in operation prior to adoption of the zoning ordinance and was thus a legal nonconforming use. DECISION: Judgment of circuit court reversed. The Supreme Court of South Dakota rejected Croell's arguments and agreed with the Board. The court found that under the plain language of the zoning ordinance (§ 507(B)), Croell's intended use of the land required a mining permit. Thus, the court concluded that the Board had properly re- versed the Planning Director's issuance of the construction permit for Croell's mining operation use at the Quarry. In so concluding, the court explained that since Croell extracted more than 100 cubic yards, "[u]nder the clear language of § 507(B), Croell's intended use could not be authorized under a construction permit; a min- ing permit was required." Therefore, the court held that the Board "properly declined to issue a construction permit for the purpose of doing that which [was] prohibited under § 507(B), and the circuit court erred by reversing the Board's decision." Rejecting Croell's argument that the Planning Commission and Plan- ning Director's "historical interpretation" of the zoning ordinance —allow- ing mining with a construction permit —should be given deference, the court said that when the meaning of an ordinance is "unambiguous" —as the court found it was here —"the contrary interpretation of those adminis- tering the ordinance is not entitled to deference." Regarding Croell's legal nonconforming use argument, the appellate court concluded that it was "not relevant." Croell's construction permit ap- plication did not simply seek to continue a nonconforming use, but sought to expand its operation to convert additional acres of land to use as a quarry that had not previously been used as a quarry. Thus, a mining permit was required, concluded the court. See also: Wegner Auto Co., Inc. v. Ballard, 353 N.W.2d 57 (S.D. 1984). Case Note: On appeal, Croell had also challenged the standing (i.e., legal right to appeal) of the area residents to appeal the issuance of the construction permit. The court found that, under the zoning ordinance, anyone "affected" by "any action taken by the Planning Director in administering . . . Section 507(A) [of the County zon- ing ordinance, which governs construction permits,]" had standing to appeal to the Board. Here, the court found that the residents that had appealed to the Board were "affected" by the Planning Director's decision as they had claimed the min- ing operations affected them in the following ways: negatively itnpacted their enjoyment of their properties; contaminated local wells; ejected large amounts of dust onto their properties; decreased traffic safety; and reduced local tourism. © 2018 Thomson Reuters 7