South Dakota Supreme Court rules in favor of Hanson County Board of Adjustment in mining pit case

Aug. 31—PIERRE — The South Dakota Supreme Court recently ruled in favor of the Hanson County Board of Adjustment in a case that saw the county board and the owner of an area quarry clash over the need for a conditional use permit.

The court's decision, which was filed July 26, was unanimous, with Chief Justice Steven R. Jensen, Justice Janine M. Kern, Justice Mark E. Salter, Justice Patricia J. DeVaney and Justice Scott P. Myren all concurring that the Hanson County Board of Adjustment was within its rights to impose a conditional use permit that required certain steps be made by Dakota Constructors to improve road safety near the quarry.

The decision upheld an earlier ruling by the First Judicial Circuit Court of Hanson County.

The roots of the case stem back to 2021, when Dakota Constructors, Inc. purchased the quarry about eight miles southeast of Mitchell from Fisher Sand & Gravel Company. The quarry had been used to produce construction aggregate for more than three decades, which means it predated the adoption of zoning ordinances by Hanson County in April of 2000. Due to South Dakota law, any owner of the quarry would only be mandated to acquire a conditional use permit to operate in the area, which is zoned for agriculture, if mining activities ceased for more than one year.

Dakota Constructors purchased the quarry under the impression it would not need a conditional use permit to continue operation due to its belief that the mining work had continued uninterrupted for years. The board of adjustment disagreed, and handed down a conditional use permit that required implementing safeguards intended to protect drivers on the road adjacent to the pit, including the construction of a six-foot-high berm and the installation of a secure perimeter fence.

The board of adjustment argued the way Dakota Constructors used the pit was different from the way it had been used previously by Fisher, who had not mined any new raw material from the pit in over a decade, instead only hauling away previously-mined aggregate stockpiles at the site. The board felt that since no new material had been mined during that time, the actual mining activities at the site had ceased for more than a year and the quarry was now no longer grandfathered in past county zoning ordinances.

Dakota Constructors said the cost of installing the safeguards were estimated at around $500,000, but the work would also cover deposits of quartzite and possibly prevent the mine from taking advantage of about 300 feet of rock that has yet to be uncovered.

Attorneys for the board of adjustment argued that the board had the right in interpreting the ordinance as it had.

"Allowing Hanson County's Board of Adjustment deference in interpreting this ordinance, I think it's appropriate in this case," said Jack Hieb, an attorney for the board of adjustment, said during oral arguments in April.

The attorney for Dakota Constructors, Paul Linde, disagreed.

"Even though there was no actual quarrying activity or digging, [Fisher] continued to haul from the stockpiles, which showed that there was no intent to discontinue that use or cease operation," Linde said during oral arguments.

In writing the decision for the court, Jensen said the board of adjustment was correct in its determination that mining operations had ceased for more than a year.

"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," Jensen wrote on the factual findings of the case. "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."

Jensen continued.

"There is no claim that the Board acted fraudulently or arbitrarily, or that its findings were in willful disregard of the indisputable proof. ... 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 across multiple Board meetings to ensure it had all the information it needed to reach its decision. Therefore, the circuit court properly denied Dakota Constructors' petition for writ of certiorari," Jensen wrote.

The full decision can be read

at the South Dakota Unified Judicial System website.