Todd Kays, Executive Director of First District of Local Governments gives us a Legislative Update. Please contact Todd Kays if you have any questions!

The 2023 legislative session is over and like previous years the legislature dealt with legislation that has some level of impact on local units of government. The following is a recap of some of those bills related to planning and economic development.

This year there was only one bill that was approved which dealt directly with planning and zoning issues.  HB 1029 was an Act to revise certain provisions regarding the county zoning and appeals process. In 2020 the Legislature approved SB157.  SB157 changed two sections of SDCL, 11-2-17.3 and SDCL 11-2-53, to require a simple majority vote for the approval of County Conditional Use Permits.  Prior to SB157, SDCL 11-2-17.3 was silent on the voting requirement but 11-2-53 stated that approval could be established by the members of the Board of Adjustment at a percentage determined by the County. This “percentage as determined by the county” language was creating an inconsistent patchwork of approval regulations that was impacting economic development opportunities across the State. However, the passage of SB157 inadvertently ended up creating an inconsistency between 11-2-17.3 and 11-2-53.  SDCL 11-2-17.3 now  stated that approval of a conditional use request requires the “affirmative majority vote of the members of the approving authority” while SDCL 11-2-53 now required  “The uses shall be determined by affirmative majority vote of the present and voting members of the approving authority”.  So what is the standard?  Good question.  In 2021, the Legislature approved HB 1094 which basically mirrored language of SB 157 for SDCL 11-4 (municipal zoning).  However, the language of HB 1094 remedied the inconsistency for communities that was found previously in SB 157. This year, HB 1029 fixed the inconsistency created by SB157 in County Zoning enabling legislation while at the same time being consistent with municipal enabling legislation. So going forward, Conditional Use Permits shall only be approved by a majority of board members present and voting (no super majority required). HB 1029 also refined the life of a conditional use permit which is appealed to court.  If a county zoning ordinance provision sets a time limit for commencement or completion of a special permitted use, conditional use, or variance, that “permit life”  is tolled to allow commencement within a period of two years following completion of any final appeal of the county zoning decision.  Basically, that means the Life of a CUP, if CUP is challenged in Court, is at least 2 years after completion of any final appeal.

There were several other bills that could have had an impact on local zoning decisions.  One dealt with regulations regarding political signs (HB 1099) and eight bills relating to eminent domain.  Three of the eminent domain bills were withdrawn by the sponsor with the remaining five eminent domain bills and the political sign bill being sent to the 41^st legislative day (defeated).

The bill that could have the biggest economic impact for small communities was SB 41. This cleanup bill from 2022 will provide $100 million for an infrastructure revolving loan fund and $100 million in grant funding for housing infrastructure.  70% of the funding is set aside for towns below 50,000 of population.  The funds are to be administered by SDHDA.