CHAPTER 11-2
COUNTY PLANNING AND ZONING
11-2-1 Definition of terms.
11-2-1.1 Aggrieved persons--Requirements.
11-2-2 Appointment of county planning commission--Number of members--Acting as zoning commission.
11-2-3 Term of office of appointed commission members--Removal for cause--Ex officio members.
11-2-3.1 Meetings of planning commission.
11-2-3.2 Per diem and expenses of commission.
11-2-3.3 Information furnished by public officials--Examinations and surveys--General powers of commission.
11-2-4 Employment of planning staff--Contracts for planning services.
11-2-5 Joint planning by counties--Sharing of expenses--Objectives of joint planning.
11-2-6 Grants from and agreements with federal and state agencies.
11-2-7 Contracts to provide planning and zoning services to municipalities--Municipal powers exercised by county board.
11-2-8 Joint county-municipal planning activities--County planning commission as municipal planning commission.
11-2-9 Funds, equipment, and accommodations provided by county--Expenses of planning commission members.
11-2-10 Temporary zoning controls--Purpose--Notice and public hearing required--Duration of controls--Renewal.
11-2-10.1 Injunction available against temporary zoning control--Grounds for injunction.
11-2-11 Preparation of comprehensive county plan and official controls--Municipalities included.
11-2-12 Purposes of comprehensive county plan.
11-2-13 Adoption of zoning ordinance.
11-2-14 Division of county into zoning districts--Matters regulated--Special considerations.
11-2-15 Highway, road and street maps--Features included--Setbacks.
11-2-16 Maps for public buildings and facilities--Protection of future sites.
11-2-17 Land development and subdivision regulations--Dedications for public purposes.
11-2-17.1 Permanent subdivision ordinances enacted by county commissioners--Counties with comprehensive plans exempted--Notice and hearing requirements.
11-2-17.2 11-2-17.2. Repealed by SL 2004, ch 101, § 8
11-2-17.3 Conditional use of real property--Ordinance--Content--Approval or disapproval.
11-2-17.4 Conditional use defined.
11-2-17.5 Special permitted uses.
11-2-17.6 Special permitted uses--Exceptions.
11-2-17.7 Conditional use application--Impact on neighboring land.
11-2-17.8 Zoning determination--Well.
11-2-18 Planning commission hearings--Notice--Recommendations.
11-2-19 Publication of notice of hearing.
11-2-20 Action upon comprehensive plan by resolution or ordinance--Majority vote of board required.
11-2-20.1 Coordinating comprehensive plan with federal resource management plans.
11-2-21 Filing of board action adopting comprehensive plan--Publication of notice of fact of adoption--Public inspection.
11-2-22 Referendum on comprehensive plan, zoning ordinance, or subdivision ordinance--Land uses suspended until referendum completed.
11-2-22.1 Revision of plan, zoning ordinance, or subdivision ordinance after rejection by voters.
11-2-23 11-2-23. Repealed by SL 2000, ch 69, § 16
11-2-24 Construction to be approved by planning commission when covered by comprehensive plan--County commissioners overruling commission's disapproval.
11-2-24.1 Approval by failure of planning commission to act in time--Exception if longer period granted.
11-2-25 Enforcement provided by county commissioners.
11-2-25.1 11-2-25.1. Repealed by SL 2000, ch 69, § 18
11-2-26 Continuance of nonconforming uses permitted--Discontinuance.
11-2-27 Regulations for control and elimination of nonconforming uses--Continuation of existing uses--Gradual elimination of discontinued nonconforming uses.
11-2-28 Changes in comprehensive county plan--Initiation by board or petition of landowners.
11-2-28.1 Petition by individual landowner for change in zoning--Notice to abutting and adjoining landowners--Notice to county auditor of adjacent county.
11-2-28.2 Public hearing on petition by landowners--Consideration and recommendation by county planning commission.
11-2-28.3 Sign to notify public about petition and hearing on zoning change or conditional use permit.
11-2-29 Hearing on proposed change--Notice.
11-2-30 Adoption or rejection by board--Publication--Referendum provisions applicable.
11-2-31 Preparation by county commission of municipal plans and ordinances--Adoption by municipality.
11-2-32 Municipal planning and zoning powers unimpaired--Area of joint zoning authority.
11-2-33 11-2-33. Repealed by SL 1982, ch 86, § 77
11-2-34 Injunction proceedings to prevent or abate violations.
11-2-35 Mandamus proceedings instituted by taxpayer.
11-2-36 11-2-36. Repealed by SL 2000, ch 69, § 43
11-2-37 Special zoning area--Establishment or enlargement--Prohibition where comprehensive plans or zoning ordinances adopted.
11-2-37.1 Proposed special zoning area defined.
11-2-38 Survey and map of territory to be zoned--Affidavit.
11-2-39 11-2-39. Repealed by SL 2011, ch 69, § 3
11-2-40 Public examination of survey and map.
11-2-41 Verified petition--Signatures required--Filing--Proposal by board resolution--Notice--Hearing.
11-2-42 Order declaring territory a special zoning area with voters' assent--Notice of election.
11-2-43 Notice by publication and by posting.
11-2-44 Voting hours.
11-2-45 Judges of election appointed--Election costs and supplies.
11-2-46 Form of ballot--Majority vote required.
11-2-47 Verified statement of number of ballots and votes--Hearing on board proposal--Order incorporating special zoning area.
11-2-47.1 Referendum on incorporation of special zoning area.
11-2-47.2 Special zoning area commission or planning and zoning commission to have jurisdiction.
11-2-47.3 Special zoning area commission member appointment--Terms--Removal.
11-2-48 County funds authorized for payment of costs.
11-2-49 Appointment of board of adjustment or commission as board of adjustment--Rules--Variances to terms of ordinance.
11-2-50 Board of adjustment--Composition--Vacancies--Alternates.
11-2-51 Meetings of board of adjustment--Powers of chair--Meetings public.
11-2-52 Minutes of board meetings--Filing--Destruction of records.
11-2-53 Board of adjustment--Powers.
11-2-54 Board of adjustment--Rules.
11-2-55 Appeals--Notice--Records transmitted--Expedited process.
11-2-56 Stay of proceedings pending appeal--Exceptions.
11-2-57 Public hearing of appeal--Notice.
11-2-58 Decisions of board.
11-2-59 Reversal--Two-thirds majority vote.
11-2-60 County commissioners as board of adjustment--Powers--Chair--Two-thirds majority vote.
11-2-61 Petition to court contesting decision of board--Requirements.
11-2-61.1 Appeal of grant or denial of conditional use permit.
11-2-62 Writ of certiorari to board to review decision--Time limit--Writ not stay of proceedings--Restraining order.
11-2-62.1 Expedited determinations.
11-2-63 Board may return certified copies of papers--Grounds of decision set forth.
11-2-64 Court may take evidence.
11-2-65 Court may reverse or affirm decision of board--Costs.
11-2-65.1 Special permitted use, conditional use, variance--Expiration--Enforceability.
11-2-66 Cement Plant Commission property zoned as private business.
11-2-1. Definition of terms.
Terms used in this chapter mean:
(1) "Board," the board of county commissioners;
(2) "Commission," "planning and zoning commission," "zoning commission," or "planning commission," any county planning and zoning commission created under the terms of this chapter;
(3) "Comprehensive plan," a document which describes in words, and may illustrate by maps, plats, charts, and other descriptive matter, the goals, policies, and objectives of the board to interrelate all functional and natural systems and activities relating to the development of the territory under its jurisdiction;
(4) "Governing body," the board of county commissioners, the city council or city commission;
(5) "Municipality," a city or town however organized;
(6) "Temporary zoning or subdivision ordinance," an ordinance adopted as an emergency measure for a limited duration;
(7) "Subdivision ordinance," any ordinance adopted by the board to regulate the subdivision of land so as to provide coordination of streets with other subdivisions and the major street plan, adequate areas set aside for public uses, water and sanitation facilities, drainage and flood control, and conformity with the comprehensive plan;
(8) "Subdivision," the division of any tract or parcel of land into two or more lots, sites, or other division for the purpose, whether immediate or future, of sale or building development. The term includes resubdivision. This definition does not apply to the conveyance of a portion of any previously platted tract, parcel, lot, or site if the conveyance does not cause the tract, parcel, lot, or site from which the portion is severed to be in violation of any existing zoning ordinance or subdivision ordinance applying to the tract, parcel, lot, or site;
(9) "Zoning map," the map that delineates the extent of each district or zone established in the zoning ordinance;
(10) "Zoning ordinance," any ordinance adopted by the board to implement the comprehensive plan by regulating the location and use of buildings and uses of land.
Source: SL 1967, ch 20, § 1; SL 1975, ch 113, § 1; SL 1987, ch 29, § 55; SL 1992, ch 60, § 2; SL 2000, ch 69, § 1.
11-2-1.1 . Aggrieved persons--Requirements.
For the purposes of this chapter, a person aggrieved is any person directly interested in the outcome of and aggrieved by a decision or action or failure to act pursuant to this chapter who:
(1) Establishes that the person suffered an injury, an invasion of a legally protected interest that is both concrete and particularized, and actual or imminent, not conjectural or hypothetical;
(2) Shows that a causal connection exists between the person's injury and the conduct of which the person complains. The causal connection is satisfied if the injury is fairly traceable to the challenged action, and not the result of the independent action of any third party not before the court;
(3) Shows it is likely, and not merely speculative, that the injury will be redressed by a favorable decision, and;
(4) Shows that the injury is unique or different from those injuries suffered by the public in general.
Source: SL 2020, ch 41, § 1.
11-2-2. Appointment of county planning commission--Number of members--Acting as zoning commission.
The board of county commissioners of each county in the state may appoint a commission of five or more members to be known as the county planning commission. If a county proposes to enact or implement any purpose set forth in this chapter then the board of county commissioners shall appoint a county planning commission. The total membership of the county planning commission shall always be an uneven number and at least one member shall be a member of the board of county commissioners. The county planning commission is also the county zoning commission.
Source: SL 1941, ch 216, § 4; SDC Supp 1960, § 12.20A04; SL 1966, ch 27; SL 1967, ch 20, § 2; SL 1968, ch 23; SL 1997, ch 72, § 2; SL 1999, ch 64, § 1.
11-2-3. Term of office of appointed commission members--Removal for cause--Ex officio members.
The term of each of the appointed members of the county planning commission shall be for three to five years as the board of county commissioners may provide. However, when the planning commission is first appointed, the lengths of the terms shall be varied so that no more than one-third of the terms shall expire in the same year. Any appointed member of the county planning commission may be removed for cause, after hearing prior to the expiration of the term by a majority vote of the elected members of the board of county commissioners. Administrative officials of the county may be appointed as ex officio members of the commission.
Source: SL 1967, ch 20, § 2; SL 1968, ch 23; SL 1974, ch 107; SL 1995, ch 78.
11-2-3.1. Meetings of planning commission.
The planning commission shall meet at such times as may be necessary to accomplish the purposes of this chapter, but, in no event, shall the commission meet less than once every three months.
Source: SL 1967, ch 20, § 2 as added by SL 1968, ch 23.
11-2-3.2. Per diem and expenses of commission.
Per diem and expenses of the county planning commission shall be established by the board of county commissioners and paid by the county.
Source: SL 1977, ch 104, § 19.
11-2-3.3. Information furnished by public officials--Examinations and surveys--General powers of commission.
All public officials shall, upon request, furnish to the county planning commission, within a reasonable time, such available information as it may require for its work. The commission, its members and employees, in the performance of its functions, may, after thirty days' written notice by certified mail to the landowner, enter upon any land, make examinations and surveys, and place and maintain necessary monuments and marks thereon. In general, the commission has all such powers necessary to enable it to fulfill and perform its functions, promote county planning and zoning, or carry out all the purposes of this chapter.
Source: SL 1999, ch 67, § 2.
11-2-4. Employment of planning staff--Contracts for planning services.
To carry out the purposes of this chapter, the board may employ a planning director and inspector or either of them and such staff as it deems necessary; or the board may contract with a planning agency, authority, or commission, or with planning consultants, or with other specialists for such services as it requires.
Source: SL 1967, ch 20, § 8.
11-2-5. Joint planning by counties--Sharing of expenses--Objectives of joint planning.
The boards of two or more county commissioners may direct their planning commissions to plan jointly. Expenses incurred in connection with joint planning, including but not limited to contracted services, shall be shared equitably among the counties involved. Encouraging regional economic development, including but not limited to the creation of compatible controls in neighboring counties, shall be the objective of joint planning.
Source: SL 1941, ch 216, § 4; SDC Supp 1960, § 12.20A04; SL 1967, ch 20, § 2.
11-2-6. Grants from and agreements with federal and state agencies.
Any county providing for county planning activities may receive grants-in-aid from or enter into reasonable agreements with any department or agency of the government of the United States or State of South Dakota, to arrange for the receipt of federal or state funds in the interest of furthering the planning program.
Source: SL 1967, ch 20, § 7.
11-2-7. Contracts to provide planning and zoning services to municipalities--Municipal powers exercised by county board.
The governing body of any municipality may contract with the board for planning and zoning services to be provided by the county, and the contract may provide that the municipality shall pay such fees as are agreed for the services performed. Under the provisions of the contract the municipal governing body may authorize the county planning and zoning commission, on behalf of the municipality, to exercise any of the powers otherwise granted to municipal planning and zoning commissions under chapters 11-4 and 11-6.
Source: SL 1967, ch 20, § 9; SL 1975, ch 113, § 2; SL 1992, ch 60, § 2; SL 1998, ch 76, § 2.
11-2-8. Joint county-municipal planning activities--County planning commission as municipal planning commission.
The contract between the governing body of the municipality and the board may provide among other things for joint county-municipal planning activities, or it may designate the county planning commission as the planning commission for the municipality.
Source: SL 1967, ch 20, § 9; SL 1975, ch 113, § 3.
11-2-9. Funds, equipment, and accommodations provided by county--Expenses of planning commission members.
The board of county commissioners shall provide the funds, equipment, and accommodations necessary for such planning activity as the board determines. Such appropriation may include payment for actual expenses of the members of the planning commission or payment on a per diem basis as determined by the board.
Source: SL 1967, ch 20, § 7.
11-2-10. Temporary zoning controls--Purpose--Notice and public hearing required--Duration of controls--Renewal.
If a county is conducting or in good faith intends to conduct studies within a reasonable time, or has held or is holding a hearing for the purpose of considering a comprehensive plan, the board in order to protect the public health, safety, and general welfare may adopt as emergency measures a temporary zoning ordinance and map and a temporary subdivision ordinance, the purposes of which are to classify and regulate uses and related matters as constitutes the emergency. Before adoption or renewal of the emergency measure or measures, the board shall hold at least one public hearing. Notice of the time and place of the hearing shall be given once at least ten days in advance by publication in a legal newspaper of the county. Any emergency measure is limited to one year from the date it becomes effective and may be renewed for one year. In no case may such a measure be in effect for more than two years.
Source: SL 1967, ch 20, § 10; SL 1975, ch 113, § 4; SL 1999, ch 65, § 1; SL 2000, ch 69, § 2.
11-2-10.1. Injunction available against temporary zoning control--Grounds for injunction.
Any person who is aggrieved by the adoption of an emergency temporary zoning ordinance pursuant to § 11-2-10 or any other emergency ordinance, zoning map, or other official control authorized pursuant to this chapter may seek an injunction against it in any court of appropriate jurisdiction based on the grounds that the emergency temporary zoning ordinance or other emergency ordinance, zoning map, or official control authorized pursuant to this chapter is not necessary to protect the public health, safety, and public welfare. If the court finds that the emergency temporary zoning ordinance or other emergency ordinance, zoning map, or official control authorized pursuant to this chapter is not necessary to protect the public health, safety, and general welfare, the court shall declare the ordinance or other emergency ordinance, zoning map, or official control authorized pursuant to this chapter null and void.
Source: SL 1999, ch 66, § 1.
11-2-11. Preparation of comprehensive county plan and official controls--Municipalities included.
The county planning commission may prepare, or cause to be prepared, a comprehensive plan for the county including those municipalities within the county which are either unincorporated or which have requested by resolution of the governing board of such municipality to be included.
Source: SL 1941, ch 216, § 4; SDC Supp 1960, § 12.20A04; SL 1966, ch 27; SL 1967, ch 20, § 2; SL 1974, ch 108; SL 1975, ch 113, § 5; SL 1976, ch 103; SL 1977, ch 104, § 1; SL 1999, ch 65, § 2; SL 2000, ch 69, § 3.
11-2-12. Purposes of comprehensive county plan.
The comprehensive plan shall be for the purpose of protecting and guiding the physical, social, economic, and environmental development of the county; to protect the tax base; to encourage a distribution of population or mode of land utilization that will facilitate the economical and adequate provisions of transportation, roads, water supply, drainage, sanitation, education, recreation, or other public requirements; to lessen governmental expenditure; and to conserve and develop natural resources.
Source: SL 1941, ch 216, § 3; SDC Supp 1960, § 12.20A03; SL 1967, ch 20, § 2; SL 1975, ch 113, § 6.
11-2-13. Adoption of zoning ordinance.
For the purpose of promoting health, safety, or the general welfare of the county the board may adopt a zoning ordinance to regulate and restrict the height, number of stories, and size of buildings and other structures, the percentage of lot that may be occupied, the size of the yards, courts, and other open spaces, the density of population, and the location and use of buildings, structures, and land for trade, industry, residence, flood plain, or other purposes.
Source: SL 1941, ch 216, § 2; SDC Supp 1960, § 12.20A02; SL 1967, ch 20, § 3 (1); SL 2000, ch 69, § 4.
11-2-14. Division of county into zoning districts--Matters regulated--Special considerations.
For any of the purposes specified in § 11-2-13, the board may divide the county into districts of such number, shape, and area as may be deemed best suited to carry out the purposes of this chapter; and within the districts it may regulate and restrict the erection, construction, reconstruction, alteration, repair, or use of buildings, structures, or land . All such regulations shall be uniform for each class or kind of buildings throughout each district, but the regulations in one district may differ from those in other districts.
The regulations shall be made in accordance with a comprehensive plan and designed to lessen congestion in the streets; to secure safety from fire, panic, and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration or scattering of population; to facilitate the adequate provision of transportation, water, sewerage, schools, parks; and other public requirements.
The regulations shall be made with reasonable consideration, among other things, to the character of the district, and its peculiar suitability for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout the county.
Source: SL 1967, ch 20, § 3 (2); SL 1975, ch 113, § 7; SL 2000, ch 69, § 5.
11-2-15. Highway, road and street maps--Features included--Setbacks.
The regulations may include maps for highways, roadways, parkways, roads, and streets showing the exact alignments, gradients, dimensions, and other pertinent features, and including specific controls for setbacks from the right-of-way against encroachment by buildings or other physical structures or facilities.
Source: SL 1967, ch 20, § 3 (3); SL 2000, ch 69, § 6.
11-2-16. Maps for public buildings and facilities--Protection of future sites.
The regulations may include maps for other public facilities such as parks, playgrounds, schools, and other public buildings showing exact location, size, boundaries, and other related features including appropriate regulations protecting such future sites against encroachment by buildings and other physical structures or facilities.
Source: SL 1967, ch 20, § 3 (4); SL 2000, ch 69, § 7.
11-2-17. Land development and subdivision regulations--Dedications for public purposes.
The board may adopt a subdivision ordinance which shall be made in accordance with the comprehensive plan. The regulations may establish standards and procedures to be employed in land development including subdividing of land and the approval of land plats and the preservation of streets and land for other public purposes requiring future dedication or acquisition and general design of physical improvements.
Source: SL 1967, ch 20, § 3 (5); SL 2000, ch 69, § 8.
11-2-17.1. Permanent subdivision ordinances enacted by county commissioners--Counties with comprehensive plans exempted--Notice and hearing requirements.
The board may enact permanent subdivision ordinances as defined in subdivision 11-2-1(7). The board need not follow the procedures provided in this chapter pursuant to the comprehensive plan in implementing this section. This section does not apply to any county that has adopted a comprehensive plan. Before adoption of its subdivision ordinance or any amendment thereto, the commission shall hold at least one public hearing. Notice of the time and place of the hearing shall be given once at least ten days in advance by publication in a legal newspaper of the county. Any interested person shall be given a full, fair, and complete opportunity to be heard at the hearing, and the governing body may refuse or adopt the ordinance, with or without amendment.
Source: SL 1979, ch 91; SL 1999, ch 65, § 3; SL 2000, ch 69, § 9.
11-2-17.3. Conditional use of real property--Ordinance--Content--Approval or disapproval.
A county zoning ordinance adopted under this chapter that authorizes a conditional use of real property shall specify the approving authority, each category of conditional use requiring approval, the zoning districts in which a conditional use is available, the criteria for evaluating each conditional use, and any procedures for certifying approval of certain conditional uses. The approving authority shall consider the stated criteria, the objectives of the comprehensive plan, and the purpose of the zoning ordinance and the relevant zoning districts when making a decision to approve or disapprove a conditional use request. Approval of a conditional use request requires the affirmative majority vote of the members of the approving authority who are present and voting.
Source: SL 2004, ch 103, § 3; SL 2015, ch 72, § 2; SL 2020, ch 41, § 2; SL 2023, ch 39, § 1.
11-2-17.4. Conditional use defined.
A conditional use is any use that, owing to certain special characteristics attendant to its operation, may be permitted in a zoning district subject to the evaluation and approval by the approving authority specified in § 11-2-17.3. A conditional use is subject to requirements that are different from the requirements imposed for any use permitted by right in the zoning district.
Source: SL 2004, ch 103, § 4.
11-2-17.5. Special permitted uses.
A zoning ordinance adopted under this chapter may also establish a process for certification of special permitted uses upon meeting specified criteria for the use. A use certified as a special permitted use under the zoning ordinance shall be approved if the applicant demonstrates that all specified criteria are met.
Source: SL 2015, ch 72, § 1; SL 2020, ch 41, § 3; SL 2023, ch 39, § 2.
11-2-17.6 . Special permitted uses--Exceptions.
Any land use that meets the specified criteria for certification under any county zoning ordinance shall be considered a special permitted use. A special permitted use applicant is not subject to the requirements set forth in § 11-2-17.4 . A special permitted use is not subject to any public hearing or other requirements for review and approval of conditional uses. Upon adoption of certification provisions, the land use is a permitted use subject to the criteria and enforcement in the same manner as a permitted use.
Source: SL 2020, ch 41, § 4.
11-2-17.7 . Conditional use application--Impact on neighboring land.
Any alteration, construction, use of earthmoving equipment, or other change pursuant to a zoning permit or allowed land use on neighboring land that began after the date on which an application for a conditional use is received, and that causes the application to fail to meet one or more of the criteria or requirements for conditional use under the zoning ordinance, does not cause the request for a conditional use permit to be considered nonconforming until a final disposition of the conditional use request is determined pursuant to § 11-2-61 or 11-2-65 . If the conditional use permit is granted, the conditional use shall be considered a lawful use, lot, or occupancy of land or premises and may be continued even though the use, lot, or occupation does not conform to the provisions of the ordinance. If the conditional use is not pursued by the applicant for a period of more than one year, any subsequent use, lot, or occupancy of the land or premises shall conform with the zoning ordinance.
Source: SL 2020, ch 41, § 5.
11-2-17.8. Zoning determination--Well.
When a well is at issue in making a determination for the implementation of a zoning ordinance requirement, the zoning authority must determine whether the well is an established well that has not been abandoned.
A well that is either abandoned or not established, or both, must not be used as a basis for denial of the zoning determination.
Terms used in this section mean:
(1) "Abandoned well," a well in such a state of disrepair that its original purpose cannot reasonably be achieved or that has not been used for water production in the past two calendar years;
(2) "Established well," a well for which:
(a) A well completion report is on file with the Department of Agriculture and Natural Resources; or
(b) The owner of the well files a sworn affidavit with the register of deeds on the legal description of the property in the county in which the well is located affirming that the well has been used for water production for more than one week in each of the two calendar years preceding submission of the sworn affidavit; and
(3) "Well," an artificial excavation or opening in the ground, made by means of digging, boring, drilling, jetting, or by any other artificial method, for the purpose of obtaining groundwater.
Source: SL 2024, ch 41, § 1.
11-2-18. Planning commission hearings--Notice--Recommendations.
The planning commission shall hold at least one public hearing on the respective comprehensive plan, zoning ordinance, or subdivision ordinance. Notice of the time and place of the hearings shall be given once at least ten days in advance by publication in a legal newspaper of the county. Following the public hearing, the planning commission shall submit its recommendation to the board.
Source: SL 1967, ch 20, § 3; SL 2000, ch 69, § 10.
11-2-19. Publication of notice of hearing.
After receiving the recommendation of the planning commission the board shall hold at least one public hearing on the respective comprehensive plan, zoning ordinance, or subdivision ordinance. Notice of the time and place of the hearings shall be given once at least ten days in advance by publication in a legal newspaper of the county.
Source: SL 1941, ch 216, § 5; SDC Supp 1960, § 12.20A05; SL 1961, ch 37, § 1; SL 1967, ch 20, § 4; SL 1972, ch 72, § 1; SL 1977, ch 104, § 2; SL 1983, ch 105, § 1; SL 1999, ch 65, § 4; SL 2000, ch 69, § 11.
11-2-20. Action upon comprehensive plan by resolution or ordinance--Majority vote of board required.
Based on the results of the hearing or hearings, the action upon the comprehensive plan shall be by resolution carried by the affirmative votes of not less than a majority of all the members of the board.
Based on the results of the hearing or hearings, the action upon the zoning regulations and the subdivision regulations shall be by ordinance carried by the affirmative votes of not less than a majority of all the members of the board.
Source: SL 1967, ch 20, § 4; SL 1970, ch 84, § 1; SL 1975, ch 113, § 8; SL 1977, ch 104, § 3; SL 2000, ch 69, § 12.
11-2-20.1. Coordinating comprehensive plan with federal resource management plans.
The board of county commissioners of a county which has officially adopted a comprehensive plan pursuant to § 11-2-20 may participate in efforts to coordinate the comprehensive plan with federal regional forest or other resource management plans as provided in the Federal Land Policy and Management Act of 1976 and federal regulations adopted pursuant to that act, including Title 36, Part 219 of the Code of Federal Regulations and Title 43, Subparts 1601 and 1610 of the Code of Federal Regulations.
Source: SL 1994, ch 106.
11-2-21. Filing of board action adopting comprehensive plan--Publication of notice of fact of adoption--Public inspection.
The action of the board on the plan shall be filed with the county auditor. A notice of fact of the adoption shall be published once in a legal newspaper of the county and take effect on the twentieth day after its publication unless the referendum is invoked. Any notice of fact of adoption published under the provisions of this chapter shall contain a notification that the public may inspect the entire comprehensive plan at the office of the county auditor during regular business hours.
If such a zoning or subdivision ordinance is adopted, the ordinance is subject to the provisions of § 7-18A-5 as a comprehensive regulation unless the referendum is invoked.
Source: SL 1970, ch 84, § 2; SL 1975, ch 113, § 9; SL 1977, ch 104, § 4; SL 1983, ch 105, § 2; SL 1999, ch 65, § 5; SL 2000, ch 69, § 13.
11-2-22. Referendum on comprehensive plan, zoning ordinance, or subdivision ordinance--Land uses suspended until referendum completed.
The comprehensive plan, zoning ordinance, and subdivision ordinance may be referred to a vote of the qualified voters of the county pursuant to §§ 7-18A-15 to 7-18A-24, inclusive. The effective date of the comprehensive plan, zoning ordinance, or subdivision ordinance on which a referendum is to be held shall be suspended by the filing of a referendum petition until the referendum process is completed. However, if a comprehensive plan, zoning ordinance, or subdivision ordinance is referred to a referendum vote, no land uses that are inconsistent with the plan or ordinance may be established between the time of adoption of the resolution or ordinance by the board, as provided in § 11-2-20, and the time of the referendum vote.
Source: SL 1970, ch 84, § 3; SL 1972, ch 73, § 1; SL 1975, ch 113, § 10; SL 1981, ch 116; SL 1982, ch 122; SL 1987, ch 115, § 1; SL 2000, ch 69, § 14.
11-2-22.1. Revision of plan, zoning ordinance, or subdivision ordinance after rejection by voters.
If the voters reject the proposed comprehensive plan, zoning ordinance, or subdivision ordinance, the board may cause the planning commission to revise the plan or regulations and adopt the same as revised, and file and publish the same as required by § 11-2-21.
Source: SL 1967, ch 20, § 4; SDCL 1967, § 11-2-22; repealed by omission from SL 1970, ch 84, § 3; re-enacted SL 1972, ch 73, § 2; SL 1975, ch 113, § 11; SL 2000, ch 69, § 15.
11-2-24. Construction to be approved by planning commission when covered by comprehensive plan--County commissioners overruling commission's disapproval.
If a board has adopted the comprehensive plan or any part thereof, no street, road, park, or other public way, ground, place, space, public building or structure, public utility, whether publicly or privately owned, if covered by the comprehensive plan or any adopted part thereof, may be constructed or authorized in the county or within its subdivision jurisdiction, until the location and extent thereof has been submitted to and approved by the planning commission. In case of disapproval, the commission shall communicate its reasons to the board. By majority vote of the board members elect, a board may overrule the disapproval.
Source: SL 1967, ch 20, § 5; SL 1975, ch 113, § 13; SL 1979, ch 92; SL 2000, ch 69, § 17.
11-2-24.1. Approval by failure of planning commission to act in time--Exception if longer period granted.
The failure of the planning commission to act within sixty-five days from and after the date of official submission to it under the provisions of § 11-2-24, shall be deemed approval, unless a longer period be granted by the board or other submitting official.
Source: SL 1975, ch 113, § 14.
11-2-25. Enforcement provided by county commissioners.
The board shall provide for the enforcement of the provisions of this chapter and of ordinances, resolutions, and regulations made thereunder, and may impose enforcement duties on any officer, department, agency, or employee of the county.
Source: SL 1941, ch 216, § 9; SDC Supp 1960, § 12.20A09; SL 1967, ch 20, § 13.
11-2-26. Continuance of nonconforming uses permitted--Discontinuance.
Any lawful use, lot, or occupancy of land or premises existing at the time of the adoption of the zoning ordinance may be continued, even though the use, lot, or occupation does not conform to the provisions of the ordinance. However, if the nonconforming use, lot, or occupancy is discontinued for a period of more than one year, any subsequent use, lot, or occupancy of the land or premises shall conform with the zoning ordinance.
Source: SL 1941, ch 216, § 8; SDC Supp 1960, § 12.20A08; SL 1967, ch 20, § 12; SL 2000, ch 69, § 36.
11-2-27. Regulations for control and elimination of nonconforming uses--Continuation of existing uses--Gradual elimination of discontinued nonconforming uses.
The board may by resolution as provided in § 11-2-25 prescribe such regulations not contrary to law or § 11-2-26, as it deems desirable or necessary to regulate and control, or reduce the number or extent of or bring about the gradual elimination of nonconforming uses, lots, or occupancies. However, in accordance with the provisions of § 11-2-26, any lawful use, lot, or occupancy of land or premises existing at the time of the adoption of the zoning ordinance may be continued, even though the use, lot, or occupancy does not conform to the provisions of the zoning ordinance. If the use, lot, or occupancy is discontinued for more than one year, the board may adopt, after notice by registered or certified mail to the property owners, an amortization schedule to bring about the gradual elimination of the nonconforming use, lot, or occupancy.
Source: SL 1967, ch 20, § 12; SL 1975, ch 113, § 16; SL 2000, ch 69, § 37.
11-2-28. Changes in comprehensive county plan--Initiation by board or petition of landowners.
The plan, ordinances, restrictions, and boundaries adopted pursuant to this chapter may be amended, supplemented, changed, modified, or repealed by action of the board. Any such modification or repeal shall be proposed in a resolution or ordinance, as appropriate, presented to the board for adoption in the same manner and upon the same notice as required for the adoption of the original resolution or ordinance. The amendment, supplement, change, modification, or repeal may be requested through a petition by twenty percent of the landowners in the zoning district or districts requesting change. For purposes of this section, the term, landowner, means any person who owns land in the county as evidenced by records in the offices of the register of deeds and clerk of courts. If land is sold under a contract for deed that is of record in the office of the register of deeds in the county, both the landowner and the individual purchaser of the land, as named in the contract, are treated as landowners. Any charitable, benevolent, or religious society that owns any agricultural land in the county is not a landowner for purposes of this section if the agricultural land is exempt from taxation pursuant to § 10-4-10, but any such society is a landowner for purposes of this section for any of its real property in the county that is not exempt from taxation pursuant to § 10-4-10.
Source: SL 1941, ch 216, § 6; SDC Supp 1960, § 12.20A06; SL 1961, ch 37, § 2; SL 1967, ch 20, § 6; SL 1975, ch 113, § 17; SL 2000, ch 69, § 38; SL 2008, ch 60, § 1; SL 2009, ch 61, § 1.
11-2-28.1. Petition by individual landowner for change in zoning--Notice to abutting and adjoining landowners--Notice to county auditor of adjacent county.
An individual landowner may petition the board to change the zoning of all or any part of the landowner's property. The petitioning landowner shall notify abutting and adjoining landowners by registered or certified mail of the petitioned zoning change at least ten days before the public hearing is held on the matter by the planning commission. The landowner shall use information provided by the county director of equalization to determine the abutting and adjoining land owners. Property is considered as abutting and adjoining even though it may be separated from the property of the petitioner by a public road or highway. If the affected property abuts, adjoins, or is within one mile of a county border, the county auditor on behalf of the individual landowner shall also notify, by registered or certified mail, the county auditor in the adjoining county of the petitioned zoning change at least ten days before the public hearing is held on the matter by the planning commission.
Source: SDCL § 11-2-28 as added by SL 1975, ch 113, § 17; SL 1999, ch 65, § 6; SL 2000, ch 69, § 39; SL 2006, ch 62, § 1; SL 2011, ch 67, § 1.
11-2-28.2. Public hearing on petition by landowners--Consideration and recommendation by county planning commission.
Following receipt of any petition as provided in § 11-2-28 or 11-2-28.1, the board shall hold a public hearing, subject to the requirements of § 11-2-19, and take action upon the petitioned request. Within forty-five days of receipt by the board of any such petition, the county planning commission shall consider the requested action and make a recommendation thereon to the board.
Source: SDCL, § 11-2-28 as added by SL 1975, ch 113, § 17.
11-2-28.3. Sign to notify public about petition and hearing on zoning change or conditional use permit.
If a landowner petitions a board for a change in the zoning applied to the landowner's land or petitions a board for a conditional use permit and a local ordinance requires the landowner to post a sign to notify the public about the petition and the hearing on the petition, the sign must be at least twenty-four inches wide and eighteen inches tall with bold lettering to inform the public about the petition and hearing. This section does not preempt any requirement provided in any state law or municipal or county ordinance.
Source: SL 2015, ch 71, § 1.
11-2-29. Hearing on proposed change--Notice.
The planning commission shall hold at least one public hearing on any proposed change or modification to the plan or ordinances. Notice of the time and place of the hearing shall be given once at least ten days in advance by publication in a legal newspaper of the county. At the public hearing, any person may appear and request or protest the requested change.
Source: SDC Supp 1960, § 12.20A06 as added by SL 1961, ch 37, § 2; SL 1967, ch 20, § 6; SL 1999, ch 65, § 7; SL 2000, ch 69, § 40; SL 2006, ch 62, § 2; SL 2011, ch 68, § 1.
11-2-30. Adoption or rejection by board--Publication--Referendum provisions applicable.
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 changes. Consideration of any changes to the proposed amendment, supplement, change, modification, or repeal may only be done if the time and place of the hearing is published at least ten days in advance in a legal newspaper of the county. If adopted, the board shall publish a notice of the fact of adoption once in a legal newspaper of the county and take effect on the twentieth day after publication. The provisions of § 11-2-22 are applicable to this section.
Source: SDC Supp 1960, § 12.20A06 as added by SL 1961, ch 37, § 2; SL 1967, ch 20, § 6; SL 1975, ch 113, § 18; SL 1999, ch 65, § 8; SL 2000, ch 69, § 41; SL 2016, ch 71, § 1.
11-2-31. Preparation by county commission of municipal plans and ordinances--Adoption by municipality.
The governing body of any municipality may request a county planning commission to submit to the municipal governing body a comprehensive plan for the municipality setting forth such provisions as the county planning commission deems applicable to the municipality for its best interests, or to prepare zoning or subdivision ordinances to apply to the area within the municipality. Notwithstanding the adoption of the comprehensive plan and recommendations for the municipality, the plan and recommendations are not binding until zoning or subdivision ordinances are adopted by the municipality in accordance with the plan.
Source: SL 1967, ch 20, § 9; SL 1975, ch 113, § 19; SL 2000, ch 69, § 42.
11-2-32. Municipal planning and zoning powers unimpaired--Area of joint zoning authority.
Nothing in this chapter may be construed to prevent or modify the powers of an incorporated municipality, with a duly authorized planning commission, from exercising planning and zoning jurisdiction within the corporate limits and from exercising jointly with the county planning commission the planning and zoning authority within a joint jurisdictional area beyond the municipal corporate limits, as provided in chapters 11-4 and 11-6.
Source: SL 1967, ch 20, § 9; SL 2003, ch 77, § 1.
11-2-34. Injunction proceedings to prevent or abate violations.
In the event of a violation or a threatened violation of the regulations or restrictions of an ordinance adopted pursuant to this chapter, the board of county commissioners or any member thereof, in addition to other remedies, may institute an appropriate action or proceedings to seek an injunction in a court of competent jurisdiction to prevent, restrain, correct or abate such violation or threatened violation and it is the duty of the state's attorney to institute such action.
Source: SL 1967, ch 20, § 13.
11-2-35. Mandamus proceedings instituted by taxpayer.
Any taxpayer of the county may institute mandamus proceedings in circuit court to compel specific performance by the proper official or officials of any duty required by this chapter and by any ordinance adopted thereunder.
Source: SL 1967, ch 20, § 13.
11-2-37. Special zoning area--Establishment or enlargement--Prohibition where comprehensive plans or zoning ordinances adopted.
If an area within a county and not within a municipality becomes so situated that a zoning ordinance or any other purpose or procedure set forth in this chapter is advisable, persons within the area may apply to the board to establish or enlarge the area as a special zoning area or the board may on its own initiative establish or enlarge the area as a special zoning area, pursuant to this chapter. No special zoning area may be formed in a county in which a county wide comprehensive plan and zoning ordinances have been adopted. The formation of a special zoning area is only valid in a county that has not adopted a county wide comprehensive plan and zoning ordinances. The board may establish or enlarge a special zoning area on its own initiative if the special zoning area comprises an area of at least five square miles.
Source: SL 1977, ch 104, § 7; SL 2000, ch 69, § 44; SL 2006, ch 63, § 1; SL 2011, ch 69, § 1.
11-2-37.1. Proposed special zoning area defined.
For the purposes of §§ 11-2-37 to 11-2-38, inclusive, the term, proposed special zoning area, means the area proposed for the establishment of the district or the area to be added to an existing special zoning area if it is a proposed enlargement.
Source: SL 2011, ch 69, § 12.
11-2-38. Survey and map of territory to be zoned--Affidavit.
Persons making application for the establishment or enlargement of a special zoning area, or the board if it is proposing the establishment of a special zoning area, shall first obtain an accurate survey and map of the territory intended to be embraced within the limits of the special zoning area, showing the boundaries and area of the proposed special zoning area. The accuracy of the survey and map shall be verified by the affidavit of the surveyor.
Source: SL 1977, ch 104, § 8; SL 2000, ch 69, § 45; SL 2006, ch 63, § 2; SL 2011, ch 69, § 2.
11-2-40. Public examination of survey and map.
The survey and map when completed and verified shall be left at some convenient public place, to be designated by the county auditor, within the proposed special zoning area for a period of not less than twenty days for examination by the public.
Source: SL 1977, ch 104, § 10; SL 2006, ch 63, § 4; SL 2011, ch 69, § 4.
11-2-41. Verified petition--Signatures required--Filing--Proposal by board resolution--Notice--Hearing.
The application for establishment or enlargement of a special zoning area shall be a petition verified by one or more applicants, by affidavit stating that the affiant personally witnessed the signatures on the petition and believe the signatures to be genuine, and shall be subscribed by not less than one-third of the whole number of qualified voters residing within the proposed special zoning area. The petition shall be filed with the county auditor and presented to the board for consideration at its next meeting. If the board chooses to propose the establishment or enlargement of a special zoning area on its own initiative, the board may by resolution propose the establishment or enlargement of the special zoning area at any regular meeting of the board. After the board has adopted a resolution proposing the establishment or enlargement of a special zoning area, the board shall publish notice and hold a public hearing on the question as provided in §§ 11-2-43 and 11-2-47.
Source: SL 1977, ch 104, § 11; SL 2000, ch 69, § 46; SL 2006, ch 63, § 5; SL 2011, ch 69, § 5.
11-2-42. Order declaring territory a special zoning area with voters' assent--Notice of election.
If a petition has been presented to the board as provided in § 11-2-41 and if the board is satisfied that the requirements of this chapter have been fully complied with, it shall make an order declaring that the territory shall, with the assent of the qualified voters thereof, be a special zoning area or number specified in the application. The board shall include in the order a notice for an election of the qualified voters resident in the proposed special zoning area, at a convenient place or places therein, on some day within one month from the notice, to determine whether the territory shall become a special zoning area.
Source: SL 1977, ch 104, § 12; SL 2000, ch 69, § 47; SL 2006, ch 63, § 6; SL 2011, ch 69, § 6.
11-2-43. Notice by publication and by posting.
The board shall give ten days' notice of the election by publication and by posting a copy of the notice at three of the most public places in the proposed special zoning area. In the case of a special zoning area that is proposed by the board, the board shall post such notice at least ten days before the meeting at which it will act on the establishment or enlargement of the special zoning area. In addition, if the board is proposing the establishment or enlargement of a special zoning area, the board shall publish notice in the official newspapers of the county at least ten days before the meeting at which it intends to act on the special zoning area. For a special zoning area proposed by the board, the published notice shall include a statement that the board will hold a public hearing on the proposed special zoning area; the location of the proposed special zoning area; the date, time, and location of the meeting at which the hearing will be held; and a statement that the board will take final action on the proposed special zoning area after the hearing is completed. The publication may be waived if a copy of the notice is mailed to every qualified voter within the proposed special zoning area, by first class mail or bulk mail, at least ten days before the election.
Source: SL 1977, ch 104, § 13; SL 2000, ch 69, § 48; SL 2006, ch 63, § 7; SL 2011, ch 69, § 7.
11-2-44. Voting hours.
At all elections held under this chapter, the polls shall be kept open from 7:00 a.m. until 7:00 p.m.
Source: SL 1977, ch 104, § 14; SL 2006, ch 28, § 7.
11-2-45. Judges of election appointed--Election costs and supplies.
The board shall appoint three judges, who shall elect one of their members as superintendent and who shall conduct the election. The board shall provide the costs and supplies of the election.
Source: SL 1977, ch 104, § 15; SL 2000, ch 69, § 49.
11-2-46. Form of ballot--Majority vote required.
The vote upon the question of establishing or enlarging a special zoning area shall be by ballot which conforms to a ballot for a statewide question except that the statement required to be printed on the ballot shall be prepared by the state's attorney. If a majority of those voting vote in favor of the establishment or enlargement, the territory is from that time a special zoning area by the name and style specified in the order of the board.
Source: SL 1977, ch 104, § 16; SL 2000, ch 69, § 50; SL 2006, ch 29, § 2; SL 2011, ch 69, § 8.
11-2-47. Verified statement of number of ballots and votes--Hearing on board proposal--Order incorporating special zoning area.
After the vote is cast and canvassed, the judges shall make a verified statement showing the whole number of ballots cast, together with the number voting for and the number voting against establishment or enlargement, and shall return the statement to the board at its next session. If satisfied with the legality of the election, the board shall make an order declaring that the special zoning area has been incorporated by the name or number adopted. The order is conclusive of the fact of establishment or enlargement.
In the case of a special zoning area that is proposed by the board, the board shall hold a public hearing at a meeting of the board on the proposed special zoning area. The meeting shall be held as specified in the notice published pursuant to § 11-2-43. After the public hearing, the board shall determine whether the special zoning area is to be established or enlarged. If the board decides to establish or enlarge the special zoning area, the board shall issue an order incorporating the special zoning area.
Source: SL 1977, ch 104, § 17; SL 2000, ch 69, § 51; SL 2006, ch 63, § 8; SL 2011, ch 69, § 9.
11-2-47.1. Referendum on incorporation of special zoning area.
The board's decision to incorporate the special zoning area may be referred to a vote of the qualified voters of the proposed special zoning area pursuant to §§ 7-18A-17 to 7-18A-24, inclusive. The qualified voters of the proposed special zoning area may refer the decision within twenty days after its publication by filing a petition signed by five percent of the registered voters in the special zoning area, based upon the total number of registered voters at the last preceding general election. The filing of a valid petition requires the submission of the decision to incorporate the special zoning area to a vote of the qualified voters of the proposed special zoning area for its rejection or approval. The effective date of the incorporation of the special zoning area on which a referendum is to be held shall be suspended by the filing of a referendum petition until the referendum process is completed.
Source: SL 2006, ch 63, § 9; SL 2011, ch 69, § 10.
11-2-47.2. Special zoning area commission or planning and zoning commission to have jurisdiction.
If a special zoning area is established or enlarged pursuant to this chapter, the board of county commissioners may appoint a commission of five or more members to be known as the special zoning area commission or the board may designate the planning and zoning commission to have jurisdiction over the special zoning area. The total membership of the special zoning area commission shall always be an uneven number and at least one member shall be a member of the board of county commissioners. The special zoning area commission members appointed by the board shall reside within the special zoning area. The special zoning area commission may exercise any of the powers granted to county planning and zoning commission under this chapter.
Source: SL 2011, ch 69, § 13.
11-2-47.3. Special zoning area commission member appointment--Terms--Removal.
The term of each of the appointed members of the special zoning area commission shall be for three to five years as the board of county commissioners may provide. However, when the special zoning area commission is first appointed, the lengths of the terms shall be varied so that no more than one-third of the terms expire in the same year. Any appointed member of the special zoning area commission may be removed for cause, after hearing prior to the expiration of the term by a majority vote of the elected members of the board of county commissioners. Administrative officials of the county may be appointed as ex officio members of the special zoning area commission.
Source: SL 2011, ch 69, § 14.
11-2-48. County funds authorized for payment of costs.
The board may expend funds of the county, in the manner and to the extent permitted by law for other county expenditures, in the payment of necessary costs of preparation of petitions, surveys, maps, and applications submitted under the provisions of this chapter, and of the holding of elections on the establishment or enlargement of special zoning areas under the provisions of this chapter.
Source: SL 1977, ch 104, § 18; SL 2000, ch 69, § 52; SL 2011, ch 69, § 11.
11-2-49. Appointment of board of adjustment or commission as board of adjustment--Rules--Variances to terms of ordinance.
Except as otherwise provided by § 11-2-60, the board shall provide for the appointment of a board of adjustment, or for the planning and zoning commission to act as a board of adjustment, and in the regulations and restrictions adopted pursuant to the authority of this chapter, shall provide that the board of adjustment may, in appropriate cases and subject to appropriate conditions and safeguards, grant variances to the terms of the ordinance.
Source: SL 2000, ch 69, § 19; SL 2003, ch 78, § 1; SL 2004, ch 101, § 1.
11-2-50. Board of adjustment--Composition--Vacancies--Alternates.
A board of adjustment, other than the planning and zoning commission acting as a board of adjustment, consists of five members, each to be appointed for a term of three years and removable for cause by the appointing authority upon written charges and after public hearing. Vacancies shall be filed for the unexpired term of any member whose term becomes vacant. The appointing authority may also appoint a first alternate and a second alternate for a term of three years each. If a member is unable to attend a meeting, the first alternate, or second alternate, in turn, shall serve in the member's place.
Source: SL 2000, ch 69, § 20.
11-2-51. Meetings of board of adjustment--Powers of chair--Meetings public.
Meetings of the board of adjustment are held at the call of the chair and at such other times as the board of adjustment determines. The chair or, in the chair's absence, the acting chair may administer oaths and compel the attendance of witnesses. All meetings of the board of adjustment are open to the public.
Source: SL 2000, ch 69, § 21.
11-2-52. Minutes of board meetings--Filing--Destruction of records.
The board of adjustment shall keep minutes of its proceedings, showing the vote of each member upon each question, or, if absent or failing to vote, indicating such fact, and shall keep records of its examinations and other official actions, all of which shall be immediately filed in the office of the board of adjustment and are public records. However, the board of adjustment may destroy any record that the records destruction board, acting pursuant to § 1-27-19, declares to have no further administrative, legal, fiscal, research, or historic value.
Source: SL 2000, ch 69, § 22.
11-2-53. Board of adjustment--Powers.
The board of adjustment may:
(1) Hear and decide appeals if it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of this chapter or of any ordinance adopted pursuant to this chapter;
(2) Authorize upon appeal in specific cases a variance from the terms of the ordinance that is not contrary to the public interest, if, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship and so that the spirit of the ordinance is observed and substantial justice done; and
(3) Hear and determine conditional uses as authorized by the zoning ordinance. The uses shall be determined by an affirmative majority vote of the present and voting members of the board of adjustment.
Source: SL 2000, ch 69, § 23; SL 2003, ch 78, § 2; SL 2004, ch 101, § 2; SL 2015, ch 72, § 3; SL 2020, ch 41, § 6.
11-2-54. Board of adjustment--Rules.
The board of adjustment shall adopt rules in accordance with the provisions of any ordinance adopted pursuant to this chapter.
Source: SL 2000, ch 69, § 24.
11-2-55. Appeals--Notice--Records transmitted--Expedited process.
An appeal to the board of adjustment may be taken by any person aggrieved or by any officer, department, board, or bureau of the county adversely affected by any decision of the administrative officer to grant or deny the permit. No other appeal such as any relating to a ministerial act or other preliminary act to bring an application or matter before the board for hearing and a final decision is authorized by this section. The appeal shall be taken within a reasonable time not to exceed twenty-one days, as provided by the rules of the board of adjustment, by filing with the officer from whom the appeal is taken and with the board of adjustment a notice of appeal specifying the grounds of the appeal. The officer from whom the appeal is taken shall transmit to the board of adjustment all the papers constituting the record upon which the action appealed from was taken. All appeals relating to a particular action or property shall be consolidated and heard on an expedited basis.
Source: SL 2000, ch 69, § 25; SL 2016, ch 71, § 2; SL 2020, ch 41, § 7.
11-2-56. Stay of proceedings pending appeal--Exceptions.
An appeal to the board of adjustment stays all proceedings in the action appealed from, except ministerial or other preliminary acts necessary to allow consolidated appeals on all matters prior to final decision by the board of adjustment, or unless the officer from whom the appeal is taken files a certificate that by reason of facts stated in the certificate a stay would in the officer's opinion cause imminent peril to life or property. In such case proceedings may not be stayed other than by a restraining order which may be granted by the board of adjustment or by a court of record, on application, on notice to the officer from whom the appeal is taken and on due cause shown.
Source: SL 2000, ch 69, § 26; SL 2016, ch 71, § 3.
11-2-57. Public hearing of appeal--Notice.
The board of adjustment shall hold at least one public hearing of the appeal. Notice of the time and place shall be given at least ten days in advance by publication in a legal newspaper of the county, and due notice shall be given to the parties in interest. The board of adjustment shall decide the appeal within sixty days of receiving a notice of appeal. Any party may appear at the hearing in person or by agent or by attorney.
Source: SL 2000, ch 69, § 27; SL 2020, ch 41, § 8.
11-2-58. Decisions of board.
In exercising the powers mentioned in § 11-2-53 as to appeals, the board of adjustment may, in conformity with the provisions of this chapter, reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination appealed from and may make such order, requirement, decision, or determination as ought to be made, and to that end has all the powers of the officer from whom the appeal is taken. As to all other decisions, the board of adjustment may make initial determinations as provided by statute and applicable zoning ordinance.
Source: SL 2000, ch 69, § 28; SL 2003, ch 78, § 3; SL 2004, ch 101, § 3; SL 2015, ch 72, § 4.
11-2-59. Reversal--Two-thirds majority vote.
The concurring vote of two-thirds of the members of the board of adjustment is necessary to reverse any order, requirement, decision, or determination of any administrative official or to effect any variation in the ordinance. An initial conditional use determination of the board of adjustment shall be determined by the vote set forth in § 11-2-17.3.
Source: SL 2000, ch 69, § 29; SL 2003, ch 78, § 4; SL 2004, ch 101, § 4; SL 2015, ch 72, § 5; SL 2016, ch 71, § 4; SL 2020, ch 41, § 9.
11-2-60. County commissioners as board of adjustment--Powers--Chair--Two-thirds majority vote.
In lieu of appointing the board of adjustment provided by § 11-2-49, the board of county commissioners having adopted and in effect a zoning ordinance may act as and perform all the duties and exercise the powers of the board of adjustment. When acting as the board of adjustment, the chair of the board of county commissioners is chair of the board of adjustment. The concurring vote of at least two-thirds of the members of the board is necessary to reverse any order, requirement, decision, or determination of any administrative official, or to decide in favor of the appellant on any matter upon which it is required to pass under any zoning ordinance, or to effect any variation in the ordinance. Any initial conditional use determinations of the board shall be determined by the vote set forth in § 11-2-17.3.
Source: SL 2000, ch 69, § 30; SL 2003, ch 78, § 5; SL 2004, ch 101, § 5; SL 2016, ch 71, § 5; SL 2020, ch 41, § 10.
11-2-61. Petition to court contesting decision of board--Requirements.
Any person or persons, jointly or severally, or any officer, department, board, or bureau of the county, aggrieved by any decision of the board of adjustment may present to a court of record a petition duly verified, setting forth that the decision is illegal, in whole or in part, specifying the grounds of the illegality. The petition shall be a petition for writ of certiorari presented to the court within thirty days after the filing of the decision in the office of the board of adjustment. The board of adjustment shall respond to the petition within thirty days of receiving the notice of the filing and shall simultaneously submit the complete record of proceedings of the board appealed from, in the form of a return on a petition for writ, without need for a court order or formal issuance of writ.
A petitioner to the circuit court under this section shall pay all transcript costs required to complete the record of proceedings of the board appealed from.
Source: SL 2000, ch 69, § 31; SL 2003, ch 78, § 6; SL 2004, ch 101, § 6; SL 2016, ch 71, § 6; SL 2020, ch 41, § 11.
11-2-61.1. Appeal of grant or denial of conditional use permit.
Any appeal of a decision of granting or denying a conditional use permit shall be brought under a petition, duly verified, for a writ of certiorari directed to the approving authority and, notwithstanding any provision of law to the contrary, shall be determined under a writ of certiorari standard regardless of the form of the approving authority. The court shall give deference to the decision of the approving authority in interpreting the authority's ordinances.
Source: SL 2018, ch 68, § 1; SL 2020, ch 41, § 12.
11-2-62. Writ of certiorari to board to review decision--Time limit--Writ not stay of proceedings--Restraining order.
Upon the presentation of the petition, the court may allow a writ of certiorari directed to the board of adjustment to review the decision of the board of adjustment and shall prescribe the time within which a return must be made and served upon the relator's attorney, which may not be less than ten days and may be extended by the court. The allowance of the writ does not stay proceedings upon the decision appealed from, but the court may, on application, on notice to the board of adjustment and on due cause shown, grant a restraining order.
Source: SL 2000, ch 69, § 32.
11-2-62.1 . Expedited determinations.
Upon filing of a petition for writ of certiorari, the court shall expedite any petition determination. Within thirty days of the filing of the response and the record, or as soon as reasonably practicable, the court shall schedule and hold a hearing on the matter to determine the merits, and the cause shall be speedily heard and determined.
Source: SL 2020, ch 41, § 13.
11-2-63. Board may return certified copies of papers--Grounds of decision set forth.
The board of adjustment is not required to return the original papers acted upon by it, but it is sufficient to return certified copies of the papers, or of such portions of the papers as may be called for by the writ. The return shall concisely set forth such other facts pertinent and material to show the grounds of the decision appealed from and shall be verified.
Source: SL 2000, ch 69, § 33.
11-2-64. Court may take evidence.
If upon the hearing it appears to the court that testimony is necessary for the proper disposition of the matter, the court may take evidence, or appoint a referee to take such evidence as it may direct and report the evidence to the court with the referee's findings of fact and conclusions of law, which constitute a part of the proceedings upon which the determination of the court is made.
Source: SL 2000, ch 69, § 34.
11-2-65. Court may reverse or affirm decision of board--Costs.
The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review. On motion, the court may award reasonable attorneys' fees and costs of the action in an action brought to the court under this chapter against any non-prevailing party relative to the petition for writ of certiorari.
Costs and attorneys' fees are not allowed against the board of adjustment unless the court determines that the board of adjustment acted with gross negligence, or in bad faith, or with malice in making the decision appealed from.
Source: SL 2000, ch 69, § 35; SL 2020, ch 41, § 14.
11-2-65.1. Special permitted use, conditional use, variance--Expiration--Enforceability.
Any county zoning ordinance provision setting a time limit for commencement or completion of a special permitted use, conditional use, or variance granted under this chapter is tolled to allow commencement within a period of two years following completion of any final appeal of the county zoning decision. Any county zoning ordinance provision to the contrary is invalid or unenforceable and the special permitted use, conditional use, or variance shall be allowed if actual construction as approved is commenced within this period and any provision addressing timely completion shall commence only upon such actual construction. The authority constitutes a lawful use, lot, or occupancy of land or premises existing at the time of the adoption of a zoning ordinance amendment or replacement within this period or while an appeal is pending regardless of the commencement of actual construction, so that the approved use shall be allowed if upheld on final appeal.
For purposes of this section, the term, actual construction, means that construction materials are being permanently placed and the construction work is proceeding without undue delay.
Source: SL 2020, ch 41, § 15; SL 2023, ch 39, § 3.
11-2-66. Cement Plant Commission property zoned as private business.
All real property owned, leased, or otherwise held by the State of South Dakota by and through the South Dakota State Cement Plant Commission as of December 28, 2000, is hereby zoned to conform to its use as of December 28, 2000, as if it were owned, operated, and used by a private business, and all applicable municipal and county records shall be revised accordingly.
Source: SL 2000 (SS), ch 4, § 3.
