Rejection of amendment to zoning ordinance not subject to referendum

by Melanie Thwing and Gary Taylor

Grant County Concerned Citizens v. Grant County Board of Commissioners
(South Dakota Supreme Court, February 2, 2011)

Grant County Concerned Citizens proposed an amendment to the zoning code of Grant County, South Dakota as allowable under SDCL 11-2-28 . This amendment would increase setbacks for Class A, B, C, and D Concentrated Animal Feeding Operations. The amendment was referred to the Planning and Zoning Board for review and recommendation. The Planning and Zoning Board took testimony, deliberated, and ultimately voted unanimously to reject the proposed amendment.  At the County Commissioners’ meeting public comments were again received.  A motion to approve the amendment died for lack of a second, and therefore the amendment was officially rejected.

The petitioners then filed a petition under SDCL 11-2-22 and SDCL §§ 7-18A-15 to -24 to refer the amendment to a public vote. At the next County Commissioners meeting, the request for a referendum petition was rejected on the grounds that the matter was not one that could be referred to the voters under state law.

The petitioners appealed the denial of the referendum in circuit court, which issued a letter agreeing with the Board. It agreed that the amendment was not a legislative decision and could not be referable to a referendum.

The petitioners appeal to the Supreme Court arguing that a proposed amendment to a zoning ordinance that has been rejected by the county commission is referable to a referendum vote.

SDCL §11-2-22 states:

The comprehensive plan, zoning ordinance, and subdivision ordinance may be referred to a vote of the qualified voters of the county pursuant to §§ 7-18A-15 to 7-18A-24.  The effective date of the comprehensive plan, zoning ordinance, or subdivision ordinance on which a referendum is to be held shall be suspended by the filing of the referendum petition until the referendum process is completed.”

The court determines that the language of the statute does not contemplate referring to the referendum process a proposed amendment that was rejected, as suspension of the effective date of the plan or ordinance implies that there must be some affirmative action.

Even if the rejected amendment could be construed to fall under SDCL §11-2-22, it would still need to be consistent with §§ 7-18A-15 to 7-18A-24. These state that an ordinance must be “adopted by a board of county commissioners” to qualify for a referendum.  In this case the board rejected, and did not adopt the amendment.

Further, §§ 7-18A15.1 limits the referendum process to only issues of legislative decisions of a board. It defines a legislative decision as one, “that enacts a permanent law or lays down a rule of conduct or course of policy for the guidance of citizens or their officers.  Any matter of a permanent or general character is a legislative decision [.]”  Using this definition, the circuit court came to the conclusion that the decision was not legislative because it enacted nothing. The Supreme Court agreed with this decision, stating that for the action to be eligible for referendum it must be an affirmative action that effects some change in an existing ordinance , ultimately it must change the “status quo.”

The court held that the process of referendum is present to serve as a constitutional right for the people to have an act submitted for their approval, which without the action would become law. It is also a means to stop laws which are not in effect to give the people an additional way of expressing their views on a legislative proposition. The circuit court was correct in their decision.

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