HB 1140: What is it, and why is it bad?

by Catherine Carter

(This is the first post in a series that will be posted here throughout the week.)

House Bill 1140 is a bill that would change laws governing county and city zoning. HB 1140 affects how counties amend their zoning ordinances, and whether citizens can participate in some of those decisions; restricts citizens’ rights to appeal decisions by the zoning officer and board of adjustment (which grants conditional uses and variances); limits the kinds of decisions that can be appealed; and adds additional costs and other requirements to the appeal procedure. HB 1140 also makes the same types of changes for municipalities (towns and cities). This post discusses the likely effects of some of the changes proposed by HB 1140.

HB 1140 Section 1 adds five words (underlined) to the first line of SDCL 11-2-30: “After the hearing, the board shall by resolution or ordinance, as appropriate, either adopt or reject the amendment, supplement, change, modification, or repeal, with or without minor amendment.” Currently, county commissions are required to hold public hearings before adopting or changing the zoning ordinance, and they cannot change the ordinance afterwards. This HB 1140 amendment to 11-2-30 would allow the county commissioners to change the ordinance by making minor amendments to it without a public hearing or public input on the changes. The use of the term “minor amendment” sounds innocuous; after all, who wants to quibble over a few minor amendments to a long, detailed county zoning document? The concern is with who decides what is “minor”? Apparently, the commissioners themselves.

Last year in Turner County, following ordinance updates with public hearings, as appropriate, the county commission passed the revised ordinance, but then decided to reduce the setbacks (the minimum distance of an operation from residences, municipalities, schools, etc.) upon the recommendation of an owner who wanted to build a chicken concentrated animal feeding operation (CAFO) on land that would otherwise have been too close to town http://www.argusleader.com/story/news/2015/09/29/chicken-farm-opponents-win-court/73030634/ . Turner county citizens protested the setback reduction and appealed the board’s decision in court. The challenge was successful because under current law (11-2-30), the commissioners cannot change the ordinance at all, even by “minor amendment,” without a public hearing. HB 1140 would allow the county commissioners to make similar “minor” changes to an ordinance without a hearing. Indeed, the argument made by the Turner county commission was that “the changes adopted after discussion of the Sonstegard fax did not constitute substantial changes.” http://www.argusleader.com/story/news/2016/01/13/turner-county-deadlocks-animal-rules/78688050/

As Judge Bjorkman wrote in his decision on the Turner County case, the changes in the ordinance imposed by the commissioners without public hearing “contravened basic notions of due process and the specific dictates of South Dakota law by depriving property owners and the public of a meaningful opportunity to be heard as to the business its government was considering.” http://www.argusleader.com/story/news/2015/09/29/chicken-farm-opponents-win-court/73030634/   HB 1140 would legitimize similar actions by all county commissions and make such contravention of citizens’ rights an integral component of South Dakota law.

The last line of SDCL 11-2-30 refers to SDCL 11-2-22, which allows citizens to petition for a referendum on any changes to the ordinance, following a public hearing and vote by the county commission, and publication of the decision. Would citizens retain this right as their only recourse to object to any “minor” amendments the commissioners choose to make, if HB 1140 is passed? Or, would the HB 1140 exception for “minor amendments” preclude those changes from referral? This is unclear.

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Trackbacks

  1. […] (This is the second post in a series about HB 1140. You can read the first post here.) […]

  2. […] This is part three in a series on HB 1140. Part one is here, and part two is […]

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