Sioux Falls, SD slaughterhouse proposal gives me an excuse to talk about zoning by initiative and referendum

In South Dakota, the people have a right to propose or refer legislation at the state and also local government levels through initiative (propose new legislation through direct public vote) and referendum (put a recent legislative action up for public vote to accept or reject).

Legislative power–Initiative and referendum. The legislative power of the state shall be vested in a Legislature which shall consist of a senate and house of representatives. However, the people expressly reserve to themselves the right to propose measures, which shall be submitted to a vote of the electors of the state, and also the right to require that any laws which the Legislature may have enacted shall be submitted to a vote of the electors of the state before going into effect, except such laws as may be necessary for the immediate preservation of the public peace, health or safety, support of the state government and its existing public institutions. Not more than five percent of the qualified electors of the state shall be required to invoke either the initiative or the referendum….This section shall apply to municipalities….

South Dakota State Constitution, Article III, Section 1

Sioux Falls City Charter Section 6.03 expressly reserves the powers of initiative and referendum to the citizens.

In September of 2021, Wholestone Farms announced their intent to build a $500 million-plus pork processing plant on a 170-acre parcel of land in northeast Sioux Falls. Soon after the announcement, an opposition group emerged seeking to halt construction of the plant. Smart Growth Sioux Falls objected to building a slaughterhouse inside the city limits. The group gathered the required signatures to have the voters of Sioux Falls weigh in on whether the city should prohibit future slaughterhouses in Sioux Falls city limits. The question is on the November 8 ballot. If approved by the voters the following language would be added to the city’s code of ordinances:

Notwithstanding any other provision of this Code to the contrary, no new Slaughterhouse may be constructed, or be permitted to operate, within the city limits.

This section does not apply to any existing Slaughterhouse constructed and operating before the effective date of this section. This section does not apply to the expansion or alteration of any Slaughterhouse constructed and operating before the effective date of this section so long as such expansion or alteration occurs at the existing site.

Governor Noem has weighed in, saying that the ballot measure was bad for business and that “at the last minute one person(1) can get mad, do a ballot petition and end my business and my investment.” The Sioux Falls Chamber of Commerce also opposes the measure and states its reasoning here.

Iowa does not allow zoning questions to be put to the people through either initiative or referenda, but a number of other states do and this South Dakota situation gives me an excuse to visit the topic. Referenda are commonly used to call for voter review of legislative actions such a rezoning or a major change to the ordinance. Administrative or quasi-judicial actions – such as conditional uses, variances, and staff decisions – are not subject to referendum, although the line between legislative and administrative decisions is well-known to get messy.

Would we be better off in Iowa if “ballot box zoning” were possible? From a policy perspective the availability of initiative and referendum for zoning matters is controversial. Proponents support ballot box zoning as the most direct expression possible of residents’ wishes for how their communities should grow and thrive. Opponents are concerned that such measures undermine planning, block needed reforms such as increased residential density and fair housing, and violate the due process rights of property owners (see the Sioux Falls Chamber’s policy position).

Zoning initiative and referenda have been the subject of a wide variety of state court cases. They focus on the validity of the ballot box process when a state’s zoning statutes define a process for notice and hearing, when individual referenda appear to conflict with state mandates for fair housing, when referenda appear to conflict with state statutes and/or caselaw requiring consistency with a comprehensive plan, and other issues. The US Supreme Court has weighed in on federal constitutional questions related to zoning referenda twice. In City of Eastlake v. Forest City Enterprises (1976) the majority opinion supported zoning referenda as giving “citizens a voice on questions of public policy” when it dismissed the developer’s contention that the referendum violated due process as a standardless delegation of legislative power to voters. The Court’s majority stated that the Ohio Constitution contemplated a reservation of the power of referendum by the people, and was not a delegation of power to them. The dissent asserted that the “‘spot’ referendum technique appears to open disquieting opportunities…to bypass normal protective procedures for resolving issues affecting individual rights.”

In City of Cuyahoga Falls v. Buckeye Community Hope Foundation (2003) voters petitioned to place site plan approval for a low income housing complex on the ballot. At city council meetings and independent gatherings, some of which the mayor attended to express his personal opposition to the site plan, residents voiced concerns that the development would cause crime and drug activity to escalate, that families with children would move in, and that the complex would attract a population similar to the one on Prange Drive, the City’s only African-American neighborhood. Voters rejected the site plan at the ballot box, and the Court rejected the developer’s Equal Protection challenge to the results. The Court affirmed previous holdings that “[S]tatements made by private individuals in the course of a citizen-driven petition drive, while sometimes relevant to equal protection analysis…do not, in and of themselves, constitute state action for the purposes of the Fourteenth Amendment….[R]espondents put forth no evidence that the ‘private motives [that] triggered’ the referendum drive ‘can fairly be attributed to [city government].”

In fact, by adhering to charter procedures, city officials enabled public debate on the referendum to take place, thus advancing significant First Amendment interests. In assessing the referendum as a “basic instrument of democratic government,” we have observed that provisions for referendums demonstrate devotion to democracy, not to bias, discrimination, or prejudice.

City of Cuyahoga Falls v. Buckeye Community Hope Foundation, 538 U.S. 188, 196 (2003)

(1) Over 6,000 petition signatures were in fact required for the measure to appear on the November ballot.

LeMond earns yellow jersey in suit against Yellowstone (yes, I thought so too)

If you are a hipster nerd cycling fan you know that we are right in the middle of the Tour de France (and, more importantly, on the eve of RAGBRAI!).  To honor this I bring you cyclist-related litigation.  Three-time TDF winner Greg LeMond just won in a property-related suit against the Yellowstone Club, a (now bankrupt) members only ski and golf resort southwest of Bozeman.  The Montana Supreme Court ruled that LeMond holds a legitimate claim for damages against the club for a promise to deed a five-acre lot at the club to LeMond in exchange for bringing in 10 new members.  The court remanded the case to determine the amount of the award. It will be in the range of $1 million – a whole lot.

Article from the Missoulan is here.  The court’s opinion is here.

News from around Minnesota: Brainerd OKs small homes

Following up with the latest news on my May 13 post, the Brainerd city council has given the green light to 500 square foot homes on lots that would otherwise be unbuildable under current zoning regulations.  The original plan recommended by the planning commission called for houses as small as 400 square feet. Bumping the limit up to 500 square feet now gives Brainerd the same minimum house size as Minneapolis, where houses can be as small as 500 square feet and 350-square-foot efficiency apartments are legal.

According to the article: “Tiny home builders would also have to secure a special permit from the city.”  Does this mean that average-sized contractors – probably 5’10” or so –  can operate as-of-right? Isn’t that discriminatory?

Political ideology even reflected in preferred development patterns

The Pew Research Center for the People and the Press has just released its third survey of “Political Polarization in the American Public.”  It is a massive 10,000-respondent survey that drills deep on five subjects: (1) ideological consistency; (2) partisan antipathy; (3) political polarization and personal life; (4) political compromise and divisive policy debates; and (5) political activism and engagement.  in a nutshell the survey shows (not surprisingly) that Republicans and Democrats are more divided along ideological lines – and “partisan antipathy is deeper and more extensive than at any point in the last two decades.”

Of interest to readers of the BLUZ is the section on community living preferences.  According to the survey, if they could choose anywhere to live, three-quarters of consistent conservatives prefer a community where “the houses are larger and farther apart, but schools, stores, and restaurants are several miles away.” The preferences of consistent liberals are almost the exact inverse, with 77% saying they’d chose to live where “the houses are smaller and closer to each other, but schools, stores, and restaurants are within walking distance.”  The survey has a number of other interesting findings related to community living choices, reflected particularly in this section, and tables 3.1 to 3.4 (use the links down the right side).

WalMart growth strategy includes smaller stores in urban areas

An interesting article appeared in Bloomberg Businessweek this past week about WalMart’s increasing emphasis on smaller stores in urban areas. It turns out that these are the stores showing the most growth in sales.

In the U.S., Wal-Mart’s comparable store sales, an important measure of a retailer’s health, declined 0.6 percent. ….There was one bright spot: Wal-Mart’s smaller stores. ….The smaller locations (which range in size from 15,000 square feet to 39,000 square feet) had positive comparable sales growth and increases in traffic each quarter of 2013. The grocery stores, called Neighborhood Markets, had sales growth of about 4 percent for the year. Trouble is, there aren’t many of them: 346 to be exact, and only 20 of the even smaller Walmart Express stores. …. Wal-Mart is now planning to open between 270 and 300 smaller stores this fiscal year, a big increase from plans revealed back in October to build just 120 to 150 new small stores.

They are behind the curve, however, compared to Dollar Tree, Dollar General and Family Dollar Stores, who together have over 23,000 stores of that size.

High crop prices leading to dramatic grassland loss in northern Plains

According to A new study by researchers at South Dakota State University, farmers are digging up grasslands in the northern Plains to plant crops at the quickest pace since the 1930s.  The study found that U.S. farmers converted more than 1.3 million acres of grassland into corn and soybean fields between 2006 and 2011, in response to high crop prices and biofuel mandates (right). In states like Iowa and South Dakota, some 5 percent of pasture is turning into cropland each year.  The authors conclude that the rates of grassland loss are “comparable to deforestation rates in Brazil, Malaysia, and Indonesia.” The loss of grassland affects carbon sequestration, soil erosion rates, and migratory bird habitat.

A Washington Post article on the study can also be found here.

Another reason to ‘get on your bike and ride’

…with credit to Freddie Mercury.

According to the results of a Danish study released late last year, which looked at nearly 20,000 Danish kids between the ages of 5 and 19, kids who cycled or walked to school, rather than traveling by car or public transportation, performed measurably better on tasks demanding concentration, such as solving puzzles, and that the effects lasted for up to four hours after they got to school.

The Atlantic Cities article can be found here.

Coralville and North Liberty agree to annexation moratorium

The North Liberty and Coralville city councils have approved a 10-year annexation moratorium plan that divides the unincorporated land between the two cities into four zones, including one that only can be annexed by North Liberty and one that can only be annexed by Coralville. A third area is limited to voluntary annexations by Coralville, and the final area cannot be annexed by either city and will remain unincorporated.  This agreement settles a boundary dispute that’s been a point of contention since 2006. While the Coralville city council unanimously approved of the agreement, the North Liberty council’s vote was divided, with three council members voting for the plan and two voting against it. The discussion in North Liberty lasted almost two hours, with residents voicing concerns about transportation issues and the potential for high-density development in North Liberty’s annexation area, “while others simply do not want to be annexed into Coralville,” the North Liberty City Administrator said.

The Iowa City Press-Citizen report about the meetings can be found here.  Annexation moratorium agreements are permitted by Iowa Code sec. 368.4.

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