Greetings,

By now you may have noticed that there has been little activity regarding legislation pertaining to zoning (YEAH).  That is until yesterday when HB 1261 was dropped.  A few weeks ago, we were contacted by Rep. Drew Peterson about a concept bill related primarily to land uses that often are required to obtain a haul road agreement as a condition to a CUP.  After reviewing the concept, Luke and I assisted in the development of language that would be the least cumbersome from an administrative standpoint and still meet the intent of Rep. Peterson.  1261 is the result.

To begin,  Luke and I are much in the agreement that counties do not need this legislation to continue having the ability to issue conditions to a CUP that have “rational nexus”.  However, in our opinion it does reaffirm and establish that authority via enabling legislation. The legislation also allows for a county to permit the usage of township right of way for the temporary use of things such as manure draglines, which currently is not allowed for within State Law.

This language is completely permissive.  It does not change anything regarding the way a county currently conducts its affairs.  A county would have to establish a new or amend and existing ordinance “opting” into this new authority over public right of ways associated with a permit for a land use issued by the county or for those counties without zoning this authority can be established over non -county affected road right of ways.

From an administrative standpoint, if adopted,  it requires 2 forms of notice to an affected township.  One prior to a formal application being submitted and the other 10 days prior to the decision or public hearing.  Again, this only applies to those counties who choose to exercise this authority by establishing an ordinance (completely permissive language).

The language does not provide townships with any additional “zoning” authority.  However ,it does guarantee more transparency and input from those affected townships, which currently are not entitled to any additional notice than what is outlined in current statute for all citizens.  This language was intentionally included as a way to address the Township’s legislation in last year’s SB 189.

Since all that anyone in Pierre wants to talk about this year is CO2 pipelines, it should be noted that this legislation purposely includes the term “intra county” to avoid the being a backdoor to grease an interstate CO2 pipeline project.

Below you will find talking points developed by Luke and myself regarding what, in our opinion, the bill does and does not do. 

Currently the SD County Commissioner Executive Committee and several AG groups have endorsed the bill.

Link to the bill: https://sdlegislature.gov/Session/Bill/26069

House Bill 1261

Intent: Allows counties to establish a transparent, open process to determine the minimum construction, maintenance, and use requirements for public right-of-way (ROW) associated with a county approved land use permit subject to required advance notification of impacted local governments such as townships or municipalities.

What does this legislation do?

1. Reinforces the county’s ability and establishes authority/parameters for counties to both place and oversee conditions on an applicant which affects the management/use of public ROW in furtherance of a county issued zoning permit.
2. Establishes dual advance notification to impacted townships and municipalities prior to the issuance of a zoning permit impacting public ROW’s. (requires notification both at the time of application by applicant and a 10-day minimum notice from the county, neither of which currently exists)
3. Allows counties to establish clear protections for applicants, townships and municipalities by providing a pathway to resolve or mitigate potential conflicts and to exact punishment for any violations of the issued zoning permit.
4. Empowers counties through a formal public process to establish what the public ROW rules are and to which land use they apply.
5. Only applies to land uses which do not extend into a neighboring county. (intra-county)
6. Allows counties to establish parameters for construction or operation of infrastructure within any public ROW related to predetermined land uses. (gravel pit, wind farm, CAFO, sale barn, etc.)
7. Allows counties to establish clear parameters for all involved including applicants, townships, municipalities and the county itself for the construction, maintenance, and use of public ROW’s.
8. Allows counties to establish a known, transparent, public time frame for the township or municipality to make the county aware of their expectations for construction, maintenance, and use of their public ROW affiliated with the intended use.

What does this legislation not do?

1. Does not remove any statutory authority which the townships or municipalities currently have. Strictly prevents unilateral changes of the rules set by a county during their permitting process, without fair due process for all impacted parties should any issues need to be addressed in the future.
2. Does not preclude a township or municipal authority to establish load limits, change maintenance schedules, snow removal, vacate a public ROW, or any other statutory authorities they currently have.
3. Does not require the county to adopt anything or take any specific actions. (permissive language)
4. Does not allow a county to dictate any terms of ROW usage outside of the boundaries of the respective county. (only applies to intra-county projects located strictly within the county’s border)
5. Does not apply to interstate and inter-county projects like oil and carbon pipelines, because it explicitly applies to intra-county (singular county) land use projects only.
6. Does not affect the county’s ability to issue zoning permits.
7. Does not grant any new authority for counties to establish conditions on county zoning permits related to such things as haul road agreements which they can do today without notifying townships or municipalities.
8. Does not preclude applicants and townships/municipalities from entering into more specific separate mutual aid agreements.

 

Todd A. Kays

Executive Director

418 18^th Ave NE, Watertown, SD 57201

First District Association of Local Governments

Phone: 605-882-5115

todd@1stdistrict.org