11-3-26. Replatting after vacation of plat.

The owner of any land within any plat vacated pursuant to this chapter may cause the same to be again platted in the manner provided for the original platting of townsites, additions, and subdivisions.

Source: SL 1887, ch 109, § 5; CL 1887, § 1113; RPolC 1903, § 1507; RC 1919, § 6554; SDC 1939, § 45.2814.

CHAPTER 11-4

MUNICIPAL PLANNING AND ZONING

11-4-1    Regulatory powers of municipality.

11-4-1.1    Definition of terms.

11-4-2    Division of municipality into districts--District regulations--Uniformity within district.

11-4-3    Comprehensive plan required--Purposes of plan--Factors considered in regulations.

11-4-3.1    Temporary zoning ordinance--Adoption--Purpose--Hearing and notice--Duration and renewal.

11-4-4    Notice and hearing of proposed zoning ordinance required.

11-4-4.1    Ordinance authorizing conditional use of real property--Content--Approval or disapproval of request.

11-4-4.2    Conditional use defined.

11-4-4.3    Process for certification of special permitted uses upon meeting specified criteria.

11-4-4.4    Sign to notify public about petition and hearing on zoning change or conditional use permit.

11-4-4.5    Special permitted uses--Exceptions.

11-4-4.6    Conditional use application--Impact on neighboring land.

11-4-5    Reading, passage and publication of ordinance--Protest by landowners in district--Flood plain ordinance not subject to protest.

11-4-6    Conflict with other regulations--More stringent regulations govern.

11-4-7    Proceedings by municipal authorities to prevent violation of regulations.

11-4-8    Changes in regulations--Notice and procedure.

11-4-9    Requiring consent of landowners to change in zoning ordinance.

11-4-10    Referendum and protests against changes in zoning ordinance.

11-4-11    Appointment of planning and zoning commission--Same as city planning and zoning commission.

11-4-11.1    Governing body as planning and zoning commission.

11-4-12    Planning and zoning commission--Hearings and notice--Final recommendation.

11-4-13    Board of adjustment to be provided--Planning and zoning commission as adjustment board--Power to grant variances.

11-4-14    Appointment and terms of board of adjustment other than commission--Removal--Vacancies--Alternates.

11-4-15    Meetings of board of adjustment--Administration of oaths and attendance of witnesses.

11-4-16    Minutes and records of board of adjustment--Destruction of records.

11-4-17    Powers of board of adjustment.

11-4-18    Rules of board of adjustment.

11-4-19    Appeal to board of adjustment--Notice of appeal--Records transmitted--Expedited process.

11-4-20    Stay of proceedings pending appeal--Exceptions.

11-4-21    Notice and hearing by board of adjustment--Hearing open to public.

11-4-22    Decisions of board.

11-4-23    Vote required.

11-4-24    Governing body acting as board of adjustment--Chairman of board--Vote required for reversal, exception or variance.

11-4-25    Petition to court contesting decision of board.

11-4-25.1    Appeal of grant or denial of conditional use permit.

11-4-25.2    Expedited determinations.

11-4-26    Writ of certiorari to review decision of board--Time of return--Restraining order to stay proceedings.

11-4-27    Certified copies returned on certiorari--Contents of return.

11-4-28    Evidence heard by court on certiorari--Referee.

11-4-29    Disposition by court on certiorari--Costs.

11-4-29.1    Special permitted use, conditional use, variance--Expiration.

11-4-30    Cement Plant Commission property zoned as private business.

11-4-1. Regulatory powers of municipality.

For the purpose of promoting health, safety, or the general welfare of the community the governing body of any municipality may 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. A municipality may enter into an agreement with any landowner specifying the conditions under which the landowner's property may be developed.

Source: SDC 1939, § 45.2601; SL 1974, ch 111; SL 1982, ch 55, § 2; SL 2000, ch 69, § 53; SL 2004, ch 102, § 1.

11-4-1.1. Definition of terms.

The definitions set forth in §§ 11-6-1 and 11-2-1.1 are applicable to this chapter.

Source: SL 1975, ch 114, § 1; SL 2021, ch 55, § 1.

11-4-2. Division of municipality into districts--District regulations--Uniformity within district.

For any or all of said purposes the governing body may divide the municipality into districts of such number, shape, and area as may be deemed best suited to carry out the purposes of this chapter; and within such 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.

Source: SL 1927, ch 176, § 2; SDC 1939, § 45.2602.

11-4-3. Comprehensive plan required--Purposes of plan--Factors considered in regulations.

Such 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 of population; to facilitate the adequate provision of transportation, water, sewerage, schools, parks, and other public requirements.

Such 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 such municipality.

Source: SL 1927, ch 176, § 3; SDC 1939, § 45.2603.

11-4-3.1. Temporary zoning ordinance--Adoption--Purpose--Hearing and notice--Duration and renewal.

If a municipality 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 city council 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, the council 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 municipality. Any emergency ordinance is limited to one year from the date it becomes effective and may be renewed for one year. In no case may the ordinance be in effect for more than two years.

Source: SL 1975, ch 114, § 2; SL 1999, ch 65, § 10; SL 2000, ch 69, § 54.

11-4-4. Notice and hearing of proposed zoning ordinance required.

The governing body may adopt a zoning ordinance. Before adoption or renewal of the ordinance, the council 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 municipality. 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: SDC 1939, § 45.2604; SL 1949, ch 192; SL 1972, ch 72, § 2; SL 1982, ch 60, § 9; SL 1999, ch 65, § 11; SL 2000, ch 69, § 55.

11-4-4.1. Ordinance authorizing conditional use of real property--Content--Approval or disapproval of request.

A municipal zoning ordinance adopted pursuant to this chapter that authorizes a conditional use of real property shall specify the approving authority, each category of conditional use requiring such approval, the zoning districts in which a conditional use is available, the criteria for evaluating each conditional use, and any procedures for certifying property for 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, § 1; SL 2015, ch 72, § 7; SL 2021, ch 55, § 2.

11-4-4.2. 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 § 11-4-4.1. 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, § 2.

11-4-4.3. Process for certification of special permitted uses upon meeting specified criteria.

A zoning ordinance adopted pursuant to 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, § 6; SL 2021, ch 55, § 3.

11-4-4.4. Sign to notify public about petition and hearing on zoning change or conditional use permit.

If a landowner petitions a governing board of a municipality 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 2016, ch 72, § 1.

11-4-4.5. Special permitted uses--Exceptions.

Any land use that meets the specified criteria for certification under any municipal zoning ordinance shall be considered a special permitted use. A special permitted use applicant is not subject to the requirements set forth in § 11-4-4.2. 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 special permitted use subject to enforcement in the same manner as a permitted use.

Source: SL 2021, ch 55, § 4.

11-4-4.6. Conditional use application--Impact on neighboring land.

Any conditional use permit granted pursuant to chapter 11-4 shall be considered a lawful use. No conditional use will be prohibited due to changes on neighboring land which occurred after the application for the conditional use is received. No conditional use shall be made nonconforming due to changes on neighboring land which occurred after the application for the conditional use is granted pursuant to chapter 11-4 unless the conditional use is not pursued by the applicant for a period of more than one year.

Source: SL 2021, ch 55, § 5.

11-4-5. Reading, passage and publication of ordinance--Protest by landowners in district--Flood plain ordinance not subject to protest.

If a zoning ordinance is adopted, the ordinance is subject to the provisions of § 9-19-7 as a comprehensive regulation unless the referendum is invoked, or unless a written protest is filed with the auditor or clerk, signed by at least forty percent of the owners of equity in the lots included in any proposed district and the lands within two hundred fifty feet from any part of the proposed district. A corporation is construed to be a sole owner, and if parcels of land are in the name of more than one person, ownership representation is in proportion to the number of signers who join in the petition in relation to the number of owners. If a protest is filed, the ordinance does not become effective unless the ordinance is approved by two-thirds of the governing body of the municipality. The protest provisions of this section do not apply to any ordinance regulating or establishing flood plain areas.

Source: SDC 1939, § 45.2604; SL 1949, ch 192; SL 1974, ch 112; SL 1975, ch 115; SL 1998, ch 75, § 1; SL 1999, ch 65, § 12; SL 2000, ch 69, § 56.

11-4-6. Conflict with other regulations--More stringent regulations govern.

Whenever the regulations made under authority of this chapter require a greater width or size of yards, courts, or other open spaces, or require a lower height of building or less number of stories, or require a greater percentage of lot to be left unoccupied, or impose other higher standards than are required in any other statute or local ordinance or regulation, the provisions of the regulations made under authority of this chapter shall govern.

Wherever the provisions of any other statute or local ordinance or regulation require a greater width or size of yards, courts, or other open spaces, or require a lower height of building or a less number of stories, or other higher standards than are required by the regulations made under authority of this chapter, the provisions of such statute or local ordinance or regulation shall govern.

Source: SL 1927, ch 176, § 9; SDC 1939, § 45.2610.

11-4-7. Proceedings by municipal authorities to prevent violation of regulations.

In case any building or structure is erected, constructed, reconstructed, altered, repaired, converted, or maintained, or any building, structure, or land is used in violation of this chapter or of any ordinance or other regulation made under authority conferred thereby, the proper local authorities of the municipality, in addition to other remedies, may institute any appropriate action or proceedings to prevent such unlawful erection, construction, reconstruction, alteration, repair, conversion, maintenance, or use, to restrain, correct, or abate such violation, to prevent the occupancy of said building, structure, or land, or to prevent any illegal act, conduct, business, or use in or about such premises.

Source: SL 1927, ch 176, § 8; SDC 1939, § 45.2609.

11-4-8. Changes in regulations--Notice and procedure.

Regulations, restrictions, and boundaries adopted pursuant to this chapter may be amended, supplemented, changed, modified, or repealed. Any such modification or repeal shall be proposed in an ordinance presented to the governing body for adoption in the same manner and upon the same notice as required for the adoption of the original ordinance. However, amendments or additions to a subdivision or zoning ordinance may be published without republishing the full ordinance if the section or subsection of the ordinance containing the change is published in its entirety.

Source: SDC 1939, § 45.2605; SL 1941, ch 201; SL 1987, ch 116; SL 2000, ch 69, § 57.

11-4-9. Requiring consent of landowners to change in zoning ordinance.

The governing body may by ordinance require as a condition precedent to the introduction of any ordinance proposing changes in the zoning ordinance that there be first filed with the city auditor, finance officer, or clerk the written consent of the owners of not exceeding sixty percent of the aggregate area having the right of protest against such proposed ordinance if adopted, determined as provided by § 11-4-5.

Source: SDC 1939, § 45.2605 as added by SL 1941, ch 201; SL 2000, ch 69, § 58.

11-4-10. Referendum and protests against changes in zoning ordinance.

The referendum and the right of protest may be invoked against an ordinance making changes in the zoning ordinance in like manner as against the original ordinance.

Source: SL 1927, ch 176, § 5; SL 1927 (SS), ch 18, § 2; SDC 1939, § 45.2605; SL 1941, ch 201.

11-4-11. Appointment of planning and zoning commission--Same as city planning and zoning commission.

In order to avail itself of the powers conferred by this chapter, the governing body shall appoint a commission to be known as the planning and zoning commission to recommend the boundaries of the zoning districts and appropriate regulations to be enforced therein.

The planning and zoning commission provided herein shall be the same planning and zoning commission provided under the provisions of chapter 11-6.

Source: SL 1927, ch 176, § 6; SDC 1939, § 45.2606; SL 1975, ch 114, § 3.

11-4-11.1 . Governing body as planning and zoning commission.

In lieu of appointing the planning and zoning commission provided by § 11-4-11, the governing body of any second or third class municipality having adopted and in effect a zoning ordinance may act as and perform all the duties and exercise the powers of the planning and zoning commission.

Source: SL 2020, ch 42, § 1.

11-4-12. Planning and zoning commission--Hearings and notice--Final recommendation.

The planning and zoning commission, when appointed, shall hold public hearings, subject to the same notice requirements as provided in § 11-4-4, before submitting its recommendation, and the governing body may not hold its public hearings or take action until it has received the recommendation of the commission.

Source: SDC 1939, § 45.2606; SL 1975, ch 114, § 4; SL 2000, ch 69, § 59.

11-4-13. Board of adjustment to be provided--Planning and zoning commission as adjustment board--Power to grant variances.

Except as otherwise provided by § 11-4-24, the governing body 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: SDC 1939, § 45.2607; SL 1975, ch 114, § 5; SL 2000, ch 69, § 60.

11-4-14. Appointment and terms of board of adjustment other than commission--Removal--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 filled 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: SDC 1939, § 45.2607; SL 1975, ch 114, § 6; SL 1984, ch 105; SL 2000, ch 69, § 61.

11-4-15. Meetings of board of adjustment--Administration of oaths and attendance of witnesses.

Meetings of the board of adjustment shall be held at the call of the chairman and at such other times as the board may determine. Such chairman or, in his absence, the acting chairman may administer oaths and compel the attendance of witnesses. All meetings of such board shall be open to the public.

Source: SL 1927, ch 176, § 7; SDC 1939, § 45.2607.

11-4-16. Minutes and records of board of adjustment--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 and shall be a public record. However, the board of adjustment may destroy any record which the records destruction board, acting pursuant to § 1-27-19, declares to have no further administrative, legal, fiscal, research, or historical value.

Source: SL 1927, ch 176, § 7; SDC 1939, § 45.2607; SL 1981, ch 45, § 13.

11-4-17. Powers of board of adjustment.

The board of adjustment may:

(1)    Hear and decide appeals where 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 such variance from terms of the ordinance 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: SDC 1939, § 45.2607; SL 2000, ch 69, § 62; SL 2015, ch 72, § 8; SL 2021, ch 55, § 6.

11-4-18. Rules of board of adjustment.

The board of adjustment shall adopt rules in accordance with the provisions of any ordinance adopted pursuant to this chapter.

Source: SL 1927, ch 176, § 7; SDC 1939, § 45.2607.

11-4-19. Appeal to board of adjustment--Notice of appeal--Records transmitted--Expedited process.

Appeals to the board of adjustment may be taken by any person aggrieved or by any officer, department, board, or bureau of the municipality 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 on the merits is authorized by the section. Such appeal shall be taken within a reasonable time, as provided by the rules of such board, but not to exceed twenty-one days, by filing with the officer from whom the appeal is taken and with the board of adjustment a notice of appeal specifying the grounds thereof. The officer from whom the appeal is taken shall forthwith transmit to the board 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 1927, ch 176, § 7; SDC 1939, § 45.2607; SL 2016, ch 71, § 7; SL 2021, ch 55, § 7.

11-4-20. 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 shall file a certificate that by reason of facts stated in the certificate a stay would in his opinion cause imminent peril to life or property. In such case proceedings shall not be stayed otherwise 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 1927, ch 176, § 7; SDC 1939, § 45.2607; SL 2016, ch 71, § 8.

11-4-21. Notice and hearing by board of adjustment--Hearing open to public.

The board of adjustment shall hold at least one public hearing of the appeal. 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 municipality, and due notice shall be given to the parties in interest. The board 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: SDC 1939, § 45.2607; SL 1999, ch 65, § 13; SL 2021, ch 55, § 8.

11-4-22. Decisions of board.

In exercising the powers mentioned in § 11-4-17 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 shall have 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 1927, ch 176, § 7; SDC 1939, § 45.2607; SL 2015, ch 72, § 9.

11-4-23. Vote required.

The concurring vote of at least two-thirds of the members of the board of adjustment is necessary to reverse any order, requirement, decision, or determination of the administrative officer, or to effect any variation in an ordinance. An initial conditional use determination of the board of adjustment shall be determined by the vote set forth in § 11-4-4.1.

Source: SL 1927, ch 176, § 7; SDC 1939, § 45.2607; SL 1975, ch 114, § 7; SL 2006, ch 65, § 1; SL 2015, ch 72, § 10; SL 2021, ch 55, § 9.

11-4-24. Governing body acting as board of adjustment--Chairman of board--Vote required for reversal, exception or variance.

In lieu of appointing the board of adjustment provided by § 11-4-13, the governing body of any municipality having adopted and effectuated a zoning ordinance may act as and perform all the duties and exercise the powers of such board of adjustment. Whenever the governing body is acting as the board of adjustment, the mayor or president of the board of trustees is chairman of the board of adjustment. The concurring vote of at least two-thirds of the members of such board shall be 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 such ordinance.

Source: SL 1941, ch 202; SDC Supp 1960, § 45.2607-1; SL 2021, ch 55, § 10.

11-4-25. Petition to court contesting decision of board.

Any person or persons, jointly or severally, or any officer, department, board, or bureau of the municipality, aggrieved by any decision of the board of adjustment may present to a court of record a petition for writ of certiorari, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality. Such petition shall be presented to the court within thirty days after the filing of the decision in the office of the board. 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 from which the decision was appealed.

Source: SL 1927, ch 176, § 7; SDC 1939, § 45.2608; SL 2016, ch 71, § 9; SL 2021, ch 55, § 11.

11-4-25.1. Appeal of grant or denial of conditional use permit.

Any appeal of a decision 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, § 2; SL 2021, ch 55, § 12.

11-4-25.2. 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 2021, ch 55, § 13.

11-4-26. Writ of certiorari to review decision of board--Time of return--Restraining order to stay proceedings.

Upon the presentation of such petition the court may allow a writ of certiorari directed to the board of adjustment to review such decision of the board of adjustment and shall prescribe therein the time within which a return thereto must be made and served upon the relator's attorney, which shall not be less than ten days and may be extended by the court.

The allowance of the writ shall not stay proceedings upon the decision appealed from, but the court may, on application, on notice to the board and on due cause shown, grant a restraining order.

Source: SL 1927, ch 176, § 7; SDC 1939, § 45.2608.

11-4-27. Certified copies returned on certiorari--Contents of return.

The board of adjustment shall not be required to return the original papers acted upon by it, but it shall be sufficient to return certified copies thereof, or of such portions thereof as may be called for by such writ. The return shall concisely set forth such other facts as may be pertinent and material to show the grounds of the decision appealed from and shall be verified.

Source: SL 1927, ch 176, § 7; SDC 1939, § 45.2608.

11-4-28. Evidence heard by court on certiorari--Referee.

If upon the hearing it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take evidence, or appoint a referee to take such evidence as it may direct and report the same to the court with his findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the court shall be made.

Source: SL 1927, ch 176, § 7; SDC 1939, § 45.2608.

11-4-29. Disposition by court on certiorari--Costs.

The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review.

Costs shall not be allowed against the board of adjustment unless it shall appear to the court that it acted with gross negligence, or in bad faith, or with malice in making the decision appealed from.

Source: SL 1927, ch 176, § 7; SDC 1939, § 45.2608.

11-4-29.1. Special permitted use, conditional use, variance--Expiration.

Any municipal 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 municipal zoning decision. Any municipal 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 2021, ch 55, § 14.

11-4-30. 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, § 4.

CHAPTER 11-5

RESTRICTIVE CONTRACTS AND DECLARATIONS

11-5-1    Buildings, space requirements, and uses subject to regulation and restriction by declaration or contract of landowners in first or second class municipality.

11-5-2    Execution, filing and recording of declaration or contract of landowners--Homestead.

11-5-3    Remedies for enforcement of declaration or contract--Action maintained by first or second class municipality.

11-5-4    Duration of restrictions by declaration or contract.

11-5-5    Superior right of first or second class municipality to exercise zoning powers.

11-5-6    Revocation of declaration or contract--Execution by successor in interest required--Approval by municipal governing body required.

11-5-7    Flag--Display.

11-5-8    Flagpole--Display.

11-5-9    Firearms regulation--Homeowner association restriction unenforceable.

11-5-10    Online management and communication platform permitted.

11-5-11    Modification of a restrictive covenant--Two-thirds vote.

11-5-1. Buildings, space requirements, and uses subject to regulation and restriction by declaration or contract of landowners in first or second class municipality.

It shall be lawful for the owner or owners of any real property situated in any first or second class municipality within this state to regulate and restrict by declaration or contract, as provided in § 11-5-2, the height, number of stories, and size of buildings and other structures, and the nature of other improvements to be erected or made upon property belonging to such property owner or owners, and also to regulate and restrict as to such property the percentage of the lot or parcel that may be occupied, the size of yards, courts, and other open spaces, the density of population, and the location and use of buildings, structures, and land for trade, industrial, residence, or other purposes, and to regulate and restrict upon such land the construction, reconstruction, alteration, repair, or use of buildings, structures, or land.

Source: SL 1925, ch 243, § 1; SDC 1939, § 45.2611; SL 1992, ch 60, § 2.

11-5-2. Execution, filing and recording of declaration or contract of landowners--Homestead.

Any property owner desiring to exercise the powers conferred by § 11-5-1 shall enter into a declaration or contract in writing specifying the regulations and restrictions which the property owner may desire to impose upon the property owned by him. The declaration or contract shall be signed by the property owner executing the same and acknowledged by the property owner who shall, within thirty days after the execution and acknowledgment of the declaration or contract, record the same in the office of the register of deeds of the county in which the land affected is situated. If required by the municipal governing body, within thirty days after the recording, a copy, certified by the register of deeds, shall be filed with the auditor of the first or second class municipality in which the land is situated. Any declaration or contract covering a homestead shall be executed and acknowledged by both the owner and the spouse of the owner.

Source: SL 1925, ch 243, § 2; SDC 1939, § 45.2612; SL 1980, ch 108; SL 1992, ch 60, § 2.

11-5-3. Remedies for enforcement of declaration or contract--Action maintained by first or second class municipality.

After the execution, recording, and filing of any declaration or contract executed pursuant to §§ 11-5-1 and 11-5-2, the terms and conditions of the same may be enforced by action at law or by suit in equity brought by any person possessing any interest in the land affected by such declaration or contract or in any part of such land, or such action or suit may be maintained by the first or second class municipality within which such land is situated.

Source: SL 1925, ch 243, § 5; SDC 1939, § 45.2614; SL 1992, ch 60, § 2.

11-5-4. Duration of restrictions by declaration or contract.

The restrictions authorized by §§ 11-5-1 and 11-5-2 continue in force for a period as may be prescribed in a declaration or contract but not exceeding forty years from the date of such declaration or contract.

Source: SL 1925, ch 243, § 3; SDC 1939, § 45.2612; SL 2021, ch 56, § 1.

11-5-5. Superior right of first or second class municipality to exercise zoning powers.

The authority granted by § 11-5-1 and any declaration or contract made thereunder, shall be subject to the right of the first or second class municipality to exercise the powers and authorities conferred under chapter 11-4 at any time the municipality may elect to exercise such authority.

Source: SDC 1939, § 45.2611; SL 1992, ch 60, § 2.

11-5-6. Revocation of declaration or contract--Execution by successor in interest required--Approval by municipal governing body required.

Any declaration or contract made pursuant to §§ 11-5-1 and 11-5-2 may be revoked and canceled only by the execution by the persons executing the same of a deed of revocation, which deed of revocation shall be acknowledged and recorded in the office of the register of deeds and a copy thereof filed in the office of the city auditor as provided in case of the original declaration or contract. In case any property owner signing such declaration or contract shall have died or shall have parted with his interest in the real property affected or any part thereof, such deed of revocation shall not be valid until executed by all persons having an interest in such real property as successors in interest to the person or persons executing such declaration or contract, and such deed of revocation shall not go into force or effect until after the same shall have been approved by a resolution duly adopted by the governing body of the first or second class municipality within which such land is situated.

Source: SL 1925, ch 243, § 4; SDC 1939, § 45.2613; SL 1992, ch 60, § 2.

11-5-7. Flag--Display.

Any homeowner, regardless of any private covenants, restrictions, bylaws, rules, or requirements may display one portable, removable official United States flag, not larger than four and one-half feet by six feet and may additionally display the official South Dakota State flag or one portable, removable official flag, not larger than four and one-half feet by six feet, that represents the United States Army, Navy, Air Force, Marine Corps, Space Force, or Coast Guard, or a POW MIA flag. The additional flag must be equal in size to or smaller than the official United States flag.

Source: SL 2021, ch 57, § 1.

11-5-8. Flagpole--Display.

Any homeowner, regardless of any private covenants, restrictions, bylaws, rules, or requirements, may erect a freestanding flagpole no more than twenty feet high on any portion of the homeowner's property, if the flagpole does not obstruct sightlines at intersections and is not erected within or upon an easement. The homeowner may further display from that flagpole, one official United States flag, not larger than four and one-half feet by six feet, and may additionally display one official South Dakota State flag or official flag that represents the United States Army, Navy, Air Force, Marine Corps, Space Force, or Coast Guard, or a POW MIA flag. The additional flag must be equal in size to or smaller than the official United States flag.

The flagpole specifications and display are subject to building codes imposed by this state or appropriate local governing body.

Source: SL 2021, ch 57, § 2.

11-5-9. Firearms regulation--Homeowner association restriction unenforceable.

A homeowner's association may not include or enforce a provision in a governing document that prohibits, restricts, or has the effect of prohibiting or restricting the lawful:

(1)    Possession, transportation, or storing of a firearm, any part of a firearm, or firearm ammunition; or

(2)    Discharge of a firearm.

For the purposes of this section, the term "governing documents" means a written instrument by which a homeowners' association may exercise power to manage, maintain, or otherwise affect the property under the jurisdiction of the homeowners' association.

For the purposes of this section, the term "homeowners' association" means any incorporated or unincorporated association in which membership is based upon owning or possessing an interest in real property and that has the authority, pursuant to recorded covenants, bylaws, or other governing documents, to assess and record liens against the real property of its members.

Source: SL 2024, ch 42, § 1.

11-5-10. Online management and communication platform permitted.

It is lawful for the owner of real property exercising the power conferred by § 11-5-1 to use an online management and communication platform for the purpose of voting online notwithstanding the provisions of chapters 47-22 and 47-23.

Source: SL 2024, ch 43, § 1.

11-5-11. Modification of a restrictive covenant--Two-thirds vote.

If a declaration or contract in writing, as provided in § 11-5-2, fails to provide a provision permitting a modification to the declaration or contract, a vote of two-thirds of the owners of real property governed by the declaration or contract is required to modify the declaration or contract.

Source: SL 2024, ch 44, § 1.

CHAPTER 11-6

COMPREHENSIVE CITY PLANNING

11-6-1    Definition of terms.

11-6-2    Planning and zoning commission required in municipality--Comprehensive plan to be effected.

11-6-3    Contract for county planning and zoning services--Fees--Powers of county commission--Designation of planning commission--Contracts for special services.

11-6-4    11-6-4. Repealed by SL 1995, ch 49, § 22

11-6-4.1    Temporary addition to planning commission of resident of affected outside area.

11-6-4.2    11-6-4.2. Repealed by SL 2003, ch 77, § 2

11-6-5    11-6-5, 11-6-6. Repealed by SL 1995, ch 49, §§ 23, 24

11-6-7    Employees appointed by city council--Contracts for special services.

11-6-8    Information furnished by public officials--Examinations and surveys--General powers of commission.

11-6-9    Expenditures of planning and zoning commission--Funds, equipment and accommodations.

11-6-10    Territorial extent of powers granted by chapter--Electrical service areas not affected.

11-6-11    Territorial extent of general zoning powers--Express provision as to extraterritorial operation--Division of overlapping extraterritorial zones.

11-6-12    Zoning regulations in joint jurisdictional areas--Public hearing--Recommendation of each planning commission.

11-6-12.1    Joint meeting to act on recommendations--County concurrence required for municipal extraterritorial powers--Petition for relinquishment of zoning jurisdiction.

11-6-13    11-6-13. Repealed by SL 1975, ch 116, § 24

11-6-13.1    11-6-13.1. Repealed by SL 2003, ch 77, § 7

11-6-13.2    Referendum applicable--Time of election on referred measures.

11-6-14    Preparation of comprehensive plan for municipal development--Contents of plan--Changes or additions.

11-6-15    Surveys and studies in preparation of comprehensive plan--Purposes of plan.

11-6-16    Plan proposed as a whole or in part.

11-6-17    Public hearing required before recommendation of plan to council--Notice--Submission.

11-6-18    Vote required for adoption of plan--Notice and hearing--Reference to maps and descriptive matters--Signature of mayor--Ordinance subject to publication and protest provisions.

11-6-18.1    Filing of action adopting comprehensive plan.

11-6-18.2    Summary of city council action to be published--Notice of public inspection.

11-6-18.3    Referendum applicable to comprehensive plan--Revision of rejected plan--Adoption.

11-6-19    11-6-19 to 11-6-23. Repealed by SL 2010, ch 71, §§ 1 to 5.

11-6-24    Recommendation and adoption of building and setback regulations--Public hearing and notice required.

11-6-25    Board of adjustment to consider variances in hardship cases--Municipal planning and zoning adjustment provisions apply.

11-6-26    Subdivisions outside municipal corporate limits not approved pursuant to § 11-3-6.

11-6-26.1    Review and recommendation by county commission when land subject to joint municipal-county jurisdiction--Vote of city council required upon disapproval by county commission--Board may designate county official to make recommendation to city coun...

11-6-27    Recommendation and adoption of subdivision regulations--Purposes of regulations--Notice and public hearing required.

11-6-28    Streets and utilities covered by subdivision regulations--Provision for tentative approval of plats.

11-6-29    Bond for completion of subdivision work--Remedies for enforcement of bond.

11-6-30    Special assessment provisions in lieu of bond for completion of subdivision work.

11-6-31    Subdivision plats or replats to be submitted to planning commission--Recommendation to council.

11-6-32    Time allowed for approval or disapproval of plat--Plat deemed approved in absence of action--Ground of disapproval stated.

11-6-33    Dedication not accepted by approval of plat.

11-6-34    Register of deeds not to record plat unless approved by city council or other designated official.

11-6-35    Sale, transfer, or negotiation to sell lots before approval and recording of plat as petty offense--Injunction.

11-6-36    Approved plat required for street or utility work after attachment of platting jurisdiction.

11-6-37    Street construction specifically authorized by ordinance--Vote required to overrule planning commission.

11-6-38    Buildings prohibited on unapproved streets--Injunction action available.

11-6-39    Continuation of lawful uses existing when zoning ordinance adopted--If nonconforming use discontinued one year, subsequent use must conform.

11-6-40    Platting of certain land required.

11-6-40.1    Transfer of ownership plat.

11-6-41    Sign to notify public about petition and hearing on zoning change or conditional use permit.

11-6-1. Definition of terms.

Terms used in this chapter mean:

(1)    "Commission," "planning and zoning commission," or "planning commission," any city planning and zoning commission created under the terms of this chapter;

(2)    "Comprehensive plan," any document which describes in words, and may illustrate by maps, plats, charts, and other descriptive matter, the goals, policies, and objectives of the municipality to interrelate all functional and natural systems and activities relating to the development of the territory under its jurisdiction;

(3)    "Council," the chief legislative body or governing body of the municipality;

(4)    "Mayor," the chief executive of the municipality, whether the official designation of such official be mayor, city manager, or otherwise;

(5)    "Municipality" or "city," any incorporated city or town;

(6)    Deleted by SL 2000, ch 69, § 63;

(7)    "Street," any street, avenue, boulevard, road, lane, alley, or other roadway;

(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 and 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 regulation applying to such tract, parcel, lot, or site;

(9)    "Subdivision ordinance," any ordinance adopted by the municipality 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;

(9A)    "Temporary zoning or subdivision ordinance," an ordinance adopted as an emergency measure for a limited duration;

(10)    "Zoning map," any map adopted as an ordinance by the municipality that delineates the extent of each district or zone established in the zoning ordinance;

(11)    "Zoning ordinance," any ordinance adopted by the municipality to implement the comprehensive plan by regulating the location and use of buildings and uses of land.

Source: SL 1949, ch 198, § 1; SDC Supp 1960, § 45.3301; SL 1966, ch 145; SL 1975, ch 116, § 1; SL 1975, ch 117; SL 2000, ch 69, § 63.

11-6-2. Planning and zoning commission required in municipality--Comprehensive plan to be effected.

For the purpose of promoting the health, safety, and general welfare of the municipality, each municipality of the state shall provide by ordinance for a planning and zoning commission, including the appropriation of money to a fund for the expenditures of such commission and to provide by ordinance the qualifications of the members, mode of appointment, tenure of office, compensation, powers, duties of and rules governing such board. Municipalities shall, as soon as possible, make, adopt, amend, extend, add to or carry out a general municipal plan of development, such plan to be referred to as the comprehensive plan.

Source: SDCL, § 11-6-2 as enacted by SL 1975, ch 116, § 2; SL 1995, ch 49, § 21.

11-6-3. Contract for county planning and zoning services--Fees--Powers of county commission--Designation of planning commission--Contracts for special services.

The governing body of any municipality may contract with the board of county commissioners 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 this chapter and chapter 11-4. The contract between the governing body of the municipality and the county 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. The municipality may also contract with a planning agency, authority or commission, or with planning consultants, or with other specialists for such services as it requires.

Source: SDCL, § 11-6-3 as enacted by SL 1975, ch 116, § 3; SL 1992, ch 60, § 2; SL 1998, ch 76, § 1.