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2023 Legislative Update
UPDATE # 2:
A couple of quick notes:
SB 39 – This bill has passed the House and the Senate – It is a bill that prohibits homeowners' associations from placing restrictions on firearms or firearm ammunition. – For most of us planners, it is not an issue that we usually deal with.
HB 1128 – The “Well” bill sailed through committee (13-0) and the floor of the house (67-1) and will be in Senate Committee. I do not see much in the way of obstacles for the bill’s passage.
Bigger news – HB 1149. This bill’s main sponsor is the Majority Whip’s (Drury) bill – Basically it will usurp the local controls of City and County governments regarding zoning requirements for “vacation homes” i.e., VRBO, etc.
The SDML will be testifying against it tomorrow, February 1st at 10 a.m. in the House Local Government Committee. If this bill passes, zoning regulation on short-term rentals in both municipalities and counties would be pre-empted and local control priorities of protecting property rights of adjoining property owners and long-term housing planning would be restricted. Most of my world, and most communities/counties in the State do not regulate “vacation homes”, however, I know some of you do. My biggest concern is that this becomes a slippery slope for the State determining the guidance or standards on what is truly a local control issue. If you are interested in this, you may want to reach out to the following members of House Local Government Committee.
Other Big News – SB 189 – This bill has been introduced by Sen. Schoenfish (no others have yet signed on) and has not been assigned to Committee. This is a bad bill as it would require county governments to make the applicant get permission from Townships to use Township roads and have haul road agreements prior to the County’s issuance of Conditional Use or Building Permit. It basically usurps the County’s zoning process and authority. Counties do not need to have the State dictate the relationship between the County and Township. This State has been very deliberate in restricting the role of Townships in the zoning process. With the exception of those townships around Sioux Falls and Rapid City - Townships do not have zoning authority.
On large economic development projects in counties – CAFO, Housing, Gravel Pits, Wind, Solar, etc. Counties often include requirements in the issuance of CUPs that a haul road agreement is necessary and/or required. However, counties in my area are quick to note that a Township is not allowed to play stall ball with the CUP or get to kill the CUP for lack of an agreement with the applicant.
For example, when the findings of a CUP are presented at Grant County for a CAFO, the BOA applies a condition that a haul road agreement needs to be negotiated with the road authority, and further states that if the applicant and township cannot get to yes, the permit will still be approved subject to the applicant agreeing to the following:
So basically, Counties and Townships already have the ability to do what is in the legislation if the County chooses to incorporate it into their zoning ordinance. In short, it is a relationship of respect that needs to be cultivated at the local level – Not from the State. This bill is kind of like having your mom and dad tell you that you have to play nice with your sister .
Several groups are looking to testify against the Bill; however, Luke and I have been asked to draft a fallback position in the event this Bill has legs. Will share updated draft if it gets to that point. If you get to a Cracker Barrel this weekend, I am not sure many legislators are going to be aware of the Bill. This would be a good time to inform them.
Todd and Luke
UPDATE # 1: 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 41st 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.