Wold v. Lawrence County Com'n

• Decision Date: 06 February 1991
• Docket Number: 17131,Nos. 17116,s. 17116
• Citation: 465 N.W.2d 622
• Parties: Steven WOLD and LaVonne Wold, Plaintiffs and Appellants, v. LAWRENCE COUNTY COMMISSION, and the Golden Reward Mining Company, Defendants and Appellees.
• Court: South Dakota Supreme Court

Page 622

465 N.W.2d 622

Steven WOLD and LaVonne Wold, Plaintiffs and Appellants, v. LAWRENCE COUNTY COMMISSION, and the Golden Reward Mining Company, Defendants and Appellees.

Nos. 17116, 17131.

Supreme Court of South Dakota.

Argued Nov. 27, 1990.

Decided Feb. 6, 1991.

Reed C. Richards of Richards & Richards, Deadwood, for plaintiffs and appellants.

Jeffry L. Bloomberg, Lawrence County State's Atty., Deadwood, for defendant and appellee Lawrence County Com'n Max Main of Bennett & Main, Belle Fourche, for defendant and appellee Golden Reward Mining Co.; Edward J. Nelson and John R. Frederickson of Bennett & Main, Deadwood, on the brief.

MORGAN, Retired Justice.

The action from which this appeal arises was founded in the aftermath of a decision of the Lawrence County Commission (Commission) which granted Golden Reward Mining Company (Mining Company) a waiver of the five-hundred foot (500') buffer zone requirement as required by subparagraph (M)(2) of the County Zoning Ordinance 5.11.6 (the ordinance). Steven and LaVonne Wold (Wolds) sought to challenge the actions of Commission by instituting this declaratory judgment action in Circuit Court. Mining Company, which had been joined as a party by motion to intervene, filed a motion to dismiss on the grounds that a declaratory judgment action is an impermissible collateral attack on the decision of Commission. The circuit court denied Mining Company's motion and decided in favor of Commission and Mining Company on the merits. Wolds appeal the decision on the merits and Mining Company sought notice of review on the denial of the motion. Because we find the notice of review issue to be dispositive, we need not discuss Wolds' issues on the merits.

A brief procedural background is in order. On May 11, 1988, Commission granted Mining Company a conditional use permit (CUP), authorizing Mining Company to conduct mining operations within a distinct permit boundary in Lawrence County. ^* The permit boundary includes land that adjoins property owned by Wolds. As required by the ordinance, a five-hundred-foot (500') set-back or buffer zone was established entirely upon Mining Company's property, and no mining operations were conducted within 500' of Wolds' property.

On February 20, 1989, Mining Company proposed a Technical Revision to its state permit, to allow the mining of additional land within the existing permit boundary and to facilitate reclamation. A portion of the proposed revision would expand mining operations into the 500' buffer zone in the area adjacent to Wolds' land. In so doing, Mining Company sought verification from Commission that the proposed Technical Revision was in compliance with Lawrence County zoning requirements and the previously granted CUP.

The ordinance required Mining Company to obtain, or attempt to obtain, waivers of the 500' buffer zone requirement from adjacent landowners. Mining Company succeeded in obtaining waivers from all interested landowners except Wolds. Negotiations between Mining Company and Wolds resulted in several offers and counter-offers of compensation for the buffer zone waiver, but no agreement was reached. Consequently, pursuant to the ordinance, Mining Company asked Commission to grant the waiver notwithstanding Wolds' refusal to consent.

After actual notice to all parties, Commission initially considered Mining Company's request for a waiver of the buffer zone at its February 8, 1989, meeting. Wolds and their attorney appeared and requested a continuance. A one-month continuance was granted upon stipulation of counsel, and the parties also agreed to an on-site inspection of the subject area by Commission, which was conducted on March 6, 1989. Following Commission's March 8, 1989, meeting, Commission concluded that Mining Company's proposed Technical Revision was in compliance with the previously granted CUP and the ordinance, granted the waiver, and Commission's verification was forwarded to the Board of Minerals and Environment of the South Dakota Department of Water and Natural Resources (Department). On May 2, 1989, Department approved Mining Company's application for a Technical Revision to add the additional contiguous affected land within the permit boundary.

Wolds initiated an appeal from Commission's decision to the circuit court, pursuant to SDCL 7-8-27 through SDCL 7-8-31, inclusive. However, Wolds failed to comply with the service of process requirements of SDCL 7-8-29, and consequently their appeal was dismissed for lack of jurisdiction on April 28, 1989. On April 26, 1989, Wolds filed this action, seeking a declaratory judgment. The trial court granted summary judgment for Mining Company and Commission. This appeal followed.

Mining Company states their issue on notice of review as follows: Does Wolds' declaratory judgment action constitute an impermissible collateral attack on the decision of the Commission? We are of the opinion that it does.

Persons aggrieved of a decision of a board of county commissioners are entitled to appeal that decision pursuant to SDCL 7-8-27. The procedures for all such appeals are detailed in SDCL 7-8-27 through SDCL 7-8-31, inclusive. In 1983, the legislature added SDCL 7-8-32:

Appeal to the circuit court from decisions of the board of county commissioners, as provided...