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.

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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