LEGISLATIVE UPDATE 2.13.2026

Greetings,

There has been a lot of “defense” being played in the 2026 legislative session. I want to begin by thanking the South Dakota County Commissioners Association, South Dakota Municipal League, and the South Dakota Economic Development Professional Association lobbyists as they have been a great support in the battles regarding city and county legislative issues.

Recent win

HB 1198 – This bill was brought forward as a response to a proposed data center near Brandon which is to be developed within the City of Sioux Falls.  The prime sponsor of the bill was Representative Sjaarda.   It would have required a high energy facility to obtain a conditional use permit from and adjacent communities or adjacent communities/counties if the site, located in the home county, was within one mile of an adjoining city or county.  The bill was nearly killed but made it out of the House Energy 9 to 4.  Thankfully, it died on the floor 41 to 21.

Important bills up this week

Senate Bills 127 and 135, as introduced, set a dangerous precedent regarding “who has zoning authority?”

Historically, the State has enabled cities and counties the authority to manage and regulate land use.  (11-2, and 11-4, 11-6).  These sections of State Law are very specific to authority and practice to establishing and administrating land use policy and regulations. The same cannot be said for Townships or other political subdivisions. The State specifically restricts townships from that authority in 8-2-9 and 8-2-10.

8-2-9 provides zoning authority townships within 4 miles of a municipality with a population of at least 50,000.  It further states that those powers shall be subordinate to any zoning or other powers of the county or adjoining municipality when such powers are, or shall be, exercised by said county or municipality in respect to said township.

8-2-10 restricts township powers to those expressly granted. “No organized township shall possess or exercise any powers except such as are enumerated in this chapter or are especially given by law or are necessary to the exercise of the powers so enumerated or granted”. So, in a nutshell, if a county has established zoning regulations, townships do not have zoning authority as there is no enabling legislation for zoning outside of 8-2-9.

SB 127 – This bill establishes a 1-mile setback for data centers from residences and residential areas and further provides “Townships”  to adopt “zoning” requirements for data centers. This bill will be up for consideration before Senate State Affairs Committee on February 18^th at 10 a.m.

To begin with, the State of South Dakota has historically avoided establishing statewide setback requirements for land uses. That authority has largely been delegated to counties and municipalities. This approach reflects South Dakota’s longstanding commitment to local control — the principle that the most effective government is the one closest to the people.

Nearly all state-mandated setbacks or land use standards arise only when a State Permit is required. In those instances, state agencies have adopted standards directly related to their regulatory authority. For example, setbacks for CAFOs from waters of the state are established by the South Dakota Department of Agriculture and Natural Resources, and flicker and noise standards for wind towers are established by the South Dakota Public Utilities Commission. The most recent statewide setback involves administrative rules establishing minimum separation distances for cannabis operations from schools, parks, and similar sensitive uses.

Outside of these state-permitted activities, the State has intentionally deferred setback and separation distances for uses such as CAFOs, gravel pits, wind farms, and solar farms to counties. This ensures that individuals proposing such uses — and those who may be directly or indirectly impacted — are not disenfranchised by decisions made in Pierre that may not reflect local conditions in places such as Codington County.

Concerns with Section 2 and Section 4 of the proposed bill

1. Conflation of Nuisance and Zoning Authority (Section 4)

Why is the State conflating nuisance law with zoning (land use) regulation? While certain land uses may have the potential to become nuisances, local governments typically address land use concerns through zoning ordinances rather than nuisance declarations. This distinction is reflected in SDCL 21-10, where specific land uses — including agriculture and sport shooting ranges — are protected from nuisance claims if they comply with local zoning regulations. Compliance with zoning has traditionally served as the appropriate regulatory benchmark.

2. Arbitrary One-Mile Setback/Conflict with Existing Comprehensive Plans and Zoning  (Section 2)

Why one mile? What data, study, or regulatory precedent supports this specific distance? The proposal appears arbitrary and opinion-based rather than grounded in objective standards or demonstrated need. Further, the bill allows local governments to be more restrictive, but not less.  What happens if a county or municipality has already adopted a comprehensive land use plan and zoning regulations governing this use with less restrictive setbacks? Imposing a more restrictive statewide requirement undermines local planning efforts and directly conflicts with the principle of local control.

3. Overbroad Definition of “Residential Area” (Section 2)

The term “residence” or “residential area” would encompass nearly all rural areas of many counties. Depending on population density, this provision could effectively eliminate the development of the proposed use altogether, making it exclusionary in practice and potentially exposing counties or municipalities to litigation.

4. Township Zoning Authority (Section 2)

The bill implies that townships possess zoning authority, which conflicts with other sections of state law, including SDCL Chapters 11-2, 11-4, 11-6, and 8-2. Townships should be removed from all language concerning zoning authority to avoid statutory inconsistency and legal confusion.

Broader Policy Concerns

If the State establishes setbacks here, what comes next? Will it begin prescribing separation distances for other land uses already regulated by counties or cities? This sets a precedent for state-level intrusion into matters historically governed at the local level. Extending this logic could ultimately erode meaningful local authority over routine land use decisions.

Conclusion

There is no proposed amendment that could  “fix” this section because the fundamental issue is jurisdictional. The State should not establish setbacks for land uses that counties and municipalities are fully capable of regulating for their citizens.

If the Legislature wishes to apply such standards only in counties or municipalities without zoning authority, that is a separate discussion. However, imposing blanket statewide setbacks — particularly while including townships in zoning language inconsistent with existing statutes — undermines South Dakota’s commitment to local control and creates significant legal and policy concerns.

SB 135 – This bill (commonly referred to as the Data Center Bill of Rights) provides some guidance for future data centers.  The only section of the bill that is problematic for local units of government is Section 4. “The state may not preempt or otherwise limit the authority of the governing body of a county, municipality, or other political subdivision to adopt ordinances and resolutions limiting, prohibiting, or otherwise regulating the construction, development, or operation of data centers.”  This bill will be up for consideration before Senate State Affairs Committee on February 18^th at 3 p.m. a.m.

While I generally support the State providing for “local” control”  regarding the adoption of ordinances and resolutions regarding any land use, specifically data centers, the bill as written could be construed as granting “zoning authority” to “other political subdivisions”.  That would include townships, schools, and improvement districts. This could be fixed by eliminating “or other political subdivision”

SB 237:  The intent of the bill is to provide Townships with more of a required voice in the conditional use permitting process at the county and municipal level. There is nothing wrong with this intent. However, as prescribed in this bill, the interjection of the Township in established municipal and county conditional use permitting processes is onerous not only to those local units of government with sole zoning authority but the applicants as well. This Is the result of a 2-year argument between townships and counties at the legislature regarding notice to townships on CUP actions.  It started with a 60-day notice requirement 2 years ago, killed that bill, then morphed into either a 90 or 45 day required consultation meetings between applicant and townships prior to county BOA/approving authority meeting.

I have been very involved with the lobbyists from SDACC and Township organizations.  I believe between the three of us, we have been able to pare the original language down to something that will work.  The amendment, which has not been formally dropped, will require counties and cities with joint jurisdiction, to notify townships of appeals, variance, and CUPS 10 days prior to the public hearing. This bill will be up for consideration in Senate Local Committee at 10 a.m. on February 18^th.

Other bills

SB 91:   SB 91 attempted to make clear the amendment process pursuant to 11-2-28 or 11-2-28.1.   As initially drafted, SB 91 conflated the roles and timelines of the planning commission and the county commission in addressing initiated petitions of 20% of the landowners for textual changes to the zoning ordinance and those individuals petitioning to rezone their property.  After several iterations, we were able to come to a compromise that will add an extra step in the amendment process (more often with a rezoning but would also apply to an initiated textual change).  Going forward the bill specifies that whenever someone in the county wants to rezone their land or initiate a textual change to the zoning ordinance, they will have to present the application/petition to rezone/amend to the County Auditor or their designee (probably the zoning officer).  This bill has passed both the house and senate.

SB 92: SB92 is an attempt to clarify what happens after the county commission approves or denies an amendment to the comprehensive plan or zoning ordinance pursuant to 11-2-28 or 11-2-28.1.  I am not sure it is necessary, but we worked to make the amendment more palatable.  It has made it out of Senate Local Government Committee and was passed by the house and further out of House Local Government but was tabled on the House floor on 2/12/26

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