McCook County wanted to require that all land subdivisions inside the county be platted before any deed could be recorded, even though state law (SDCL 43-21-1) only requires platting when a property is divided into parcels that cannot be described except by metes and bounds. The county wanted to direct the Register of Deeds to refuse to record any deed for unplatted land. Could McCook County enact that ordinance?

Plain-English summary

McCook County wanted to tighten up the rules on land subdivision. The county commission was drafting an ordinance that would have read: "It shall be unlawful for any person having control of any land within the jurisdiction of McCook County to subdivide or lay-out such land in lots, unless by plat. If not platted, the Register of Deeds is not to record the transfer." That was a meaningfully bigger requirement than state law. SDCL 43-21-1 required platting only when an owner of a government subdivision or platted tract divided the same into parcels for transfer that could not be described except by metes and bounds. Plenty of land divisions in rural South Dakota could be described with rectangular dimensions (e.g., "the East 1400 feet of the North 2400 feet of the N1/2 of Section X") without resorting to metes and bounds. The state didn't require those to be platted. McCook County wanted to require them to be platted anyway.

State's Attorney Roger Gerlach asked AG Larry Long whether the proposed ordinance was lawful.

The answer was no, and it had two independent grounds.

Ground one: lack of county authority. Under the bedrock rule from Heine Farms v. Yankton County (2002) and Pennington County v. State of South Dakota (2002), a county commission has only those powers expressly granted by the Legislature plus those necessarily implied to carry out the express powers. The Legislature had set out the platting framework in SDCL ch. 43-21. The framework specifies when a plat is required (SDCL 43-21-1, where land is divided and cannot be described except by metes and bounds), what information must be in plats, the recording procedure, and exemptions (SDCL 43-30-16 for certain railroad property, SDCL 43-30-17 for certain Army-acquired property, etc.). Nowhere in those statutes did the Legislature delegate to county commissions the authority to determine what must be platted, or to direct the Register of Deeds to refuse to record deeds. Where the Legislature wanted to involve counties in the platting process, it said so explicitly (e.g., SDCL 11-3-8). The McCook ordinance was, in the AG's reading, simply outside the county's statutory authority.

Ground two: state preemption. Independently, the proposed ordinance conflicted with state law under all three South Dakota preemption tests recognized in In re Yankton County Commission (2003) and Rantapaa v. Black Hills Chairlift Co. (2001):

1. Duplication. To the extent the ordinance duplicated requirements of SDCL 43-21-1, the ordinance was void as to that overlap (preemption test 1: ordinance prohibits what state law also prohibits, ordinance is void to the extent of duplication).

2. Conflict. The ordinance prohibited what state law allowed. SDCL 43-21-4.1 expressly authorized the recordation of a conveyance containing a metes-and-bounds description if a previous conveyance with the same metes-and-bounds description had been recorded. The ordinance would prohibit that recordation. SDCL 43-21-5 authorized the recording of certain plats that did not comply with chapter 43-21. SDCL 43-30-16 and 43-30-17 exempted certain railroad and Army-acquired property from platting requirements. The ordinance would prohibit all of those state-permitted recordations.

3. Field occupation. The Legislature had occupied the field of what may be recorded by a Register of Deeds. The statutes are detailed, specific, and comprehensive. There is no room for a county to add to or vary the recordation rules.

The AG borrowed from federal preemption doctrine for the analogy. South Dakota Mining Ass'n v. Lawrence County (D.S.D. 1997) explained that conflict preemption occurs when there is a conflict between federal and state law or when it is impossible to comply with both. Big Stone Broadcasting v. Lindbloom (D.S.D. 2001) reinforced the point. The same analytical structure applied at the state-county level: where the county ordinance stood as an obstacle to the accomplishment and execution of the full purposes and objectives of the state statute, the state statute preempted.

The metes-and-bounds versus footage distinction. The AG also took the opportunity to distinguish two types of land descriptions that the McCook County request had collapsed. A metes-and-bounds description traces the boundary of a tract by courses and distances, with each course tied to a meridian, and the lines must enclose the entire tract (the AG quoted the 1947-48 Biennial Report definition: "A 'metes and bounds' description is determined by courses and distances and must be marked by lines enclosing the entire tract"). A footage description identifies a parcel by reference to lines parallel to or established by government survey lines, e.g., "the East 1400 feet of the North 2400 feet of the N1/2 of the section." Footage descriptions, even though they reference "feet," are NOT metes-and-bounds descriptions. SDCL 43-21-1 (which requires platting only for divisions described "except by metes and bounds") does NOT apply to footage descriptions. Such footage descriptions are valid legal descriptions for purposes of SDCL 7-9-7(1) and are entitled to recordation under SDCL 43-28-1.

The bottom line: the McCook County subdivision ordinance had to either be redrafted to stay within the platting rules the Legislature had already adopted, or the county had to lobby the Legislature for expanded county authority.

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. SDCL ch. 43-21, ch. 43-28, and related provisions may have been amended since 2006. The general preemption framework set out in In re Yankton County Commission (2003) and Rantapaa (2001) has remained the touchstone, but subsequent SD Supreme Court decisions may refine the field-occupation analysis. Anyone considering county-level subdivision regulation should check the current statutes and the latest case law.

What the opinion meant at the time

For McCook County and other South Dakota counties contemplating broader subdivision regulation, the opinion drew a line. Counties could not unilaterally expand the platting requirement beyond what the Legislature had set out, and they could not direct the Register of Deeds to refuse otherwise-recordable instruments. Counties wanting more comprehensive subdivision regulation had two avenues: lobby the Legislature for additional authority, or work within the existing zoning and planning statutes that already gave counties some land-use authority.

For Registers of Deeds across South Dakota, the opinion reaffirmed their statutory function: record what the Legislature has said is recordable, refuse to record what the Legislature has said is not recordable, but do not let local ordinances override the statutory rules. A Register of Deeds approached by a county commission asking to enforce a McCook-style ordinance could decline by reference to the AG opinion.

For rural landowners and real estate attorneys working in South Dakota, the opinion confirmed that footage descriptions (East X feet of North Y feet of Section Z) remained valid legal descriptions that did not require platting. This mattered for family land transfers, gift transfers between adjoining landowners, and rural land transactions where surveys and plats were either prohibitively expensive or unnecessary for the parties' purposes.

For surveyors and title examiners, the AG's distinction between metes-and-bounds and footage descriptions was useful. The 1947-48 Biennial Report definition ("determined by courses and distances and must be marked by lines enclosing the entire tract") was the operative test for whether SDCL 43-21-1's platting requirement was triggered.

For state legislators considering subdivision-control legislation, the opinion's structural analysis was a roadmap of what local authority would and would not include absent further legislative grants. If the Legislature wanted to enable counties to require platting in more situations, it could amend SDCL ch. 43-21 to grant that authority expressly. Until then, the platting framework was a state matter.

For McCook County Commissioners specifically, the opinion was a clean answer. The proposed ordinance could not be enacted as drafted. Variants of the policy goal (e.g., requiring plats only for divisions creating more than a certain number of parcels, or requiring plats when sewer/water improvements were anticipated) might be available under separate land-use planning statutes, but the blanket "all subdivisions must be platted, or the deed cannot be recorded" ordinance was off the table.

Common questions

Q: Could McCook County enact the proposed subdivision ordinance?
A: No. The AG concluded it was both beyond the county's statutory authority and preempted by state law.

Q: What state statute governs when platting is required?
A: SDCL 43-21-1 requires platting when land is divided into parcels for transfer that cannot be described except by metes and bounds.

Q: Is a footage description (e.g., "East 1400 feet of the N1/2") a metes-and-bounds description?
A: No, per the AG opinion. Metes and bounds requires courses tied to a meridian with the lines enclosing the entire tract. A footage description that references lines parallel to government survey lines is not metes-and-bounds.

Q: Do footage descriptions need to be platted?
A: No. SDCL 43-21-1 only requires platting for metes-and-bounds divisions. Footage descriptions fall outside that requirement.

Q: Are deeds with footage descriptions recordable?
A: Yes. They constitute valid legal descriptions under SDCL 7-9-7(1) and are recordable under SDCL 43-28-1.

Q: Can a county direct the Register of Deeds to refuse to record certain deeds?
A: Not by local ordinance expanding beyond state requirements. The Register of Deeds operates under state statutes that define what may and must be recorded. A county ordinance cannot override that framework.

Q: What are the three SD preemption tests?
A: Per In re Yankton County Commission (2003): (1) duplication (ordinance void to the extent it duplicates state law); (2) conflict (ordinance prohibits what state law allows or vice versa); (3) field occupation (state has comprehensively regulated to the exclusion of local rules).

Q: What's the source for federal-style preemption analysis here?
A: The SD Supreme Court borrows from federal preemption doctrine. South Dakota Mining Ass'n v. Lawrence County (D.S.D. 1997, aff'd 8th Cir. 1998) and Big Stone Broadcasting v. Lindbloom (D.S.D. 2001) supplied the conflict-preemption framework: a local enactment that stands as an obstacle to accomplishing the full purposes of the state statute is preempted.

Q: Could the county get this authority another way?
A: Yes, by lobbying the Legislature to amend SDCL ch. 43-21 to grant counties broader platting authority, or by using existing land-use planning statutes within their established scope.

Background and statutory framework

South Dakota's subdivision platting statute, SDCL 43-21-1, requires platting only in a specific scenario: when "any owner of a government subdivision or a platted tract or lot . . . shall divide the same into parcels for the purpose of transfer that cannot be described except by metes and bounds." The statute imposes a precondition on the recording of such divided parcels: a plat must be recorded before any instrument of transfer can be recorded. If the plat requires an actual survey, the statute requires that to be done.

The statute has built-in exemptions. The original chapter and subsequent provisions exempted:
- Parcels subject to Conservation Reserve Program contracts with the USDA;
- Parcels transferred to or from the South Dakota Building Authority;
- Certain railroad property (SDCL 43-30-16);
- Certain property acquired from the Secretary of the Army (SDCL 43-30-17);
- Recording of a conveyance containing a metes-and-bounds description if a previous conveyance with the same metes-and-bounds description has been recorded (SDCL 43-21-4.1);
- Recording of certain plats that do not comply with chapter 43-21 (SDCL 43-21-5).

The statute's narrow scope is intentional. The Legislature distinguished between subdivisions that genuinely require surveying and platting (because the parcels would otherwise be hard to identify on the ground) and subdivisions that can be described using government-survey-based footage descriptions (which the Legislature considered adequate without a separate plat).

Counties' platting role is limited. SDCL 11-3-8 is an example of where the Legislature did give counties a role in platting (county approval of plats in certain circumstances). Outside of those express delegations, the platting framework is administered by surveyors, title examiners, and the Register of Deeds under state law.

The McCook County ordinance would have inverted that allocation. The ordinance would have prohibited not just transfers that needed metes-and-bounds descriptions, but ALL transfers of subdivided land, regardless of whether the description was metes-and-bounds, footage, or government-survey. And it would have made the Register of Deeds the enforcement agent, refusing to record otherwise-valid deeds.

The AG's first ground (lack of county authority) was the simpler one. South Dakota counties have only the powers the Legislature has given them. The Legislature gave counties some role in platting where it said so. The Legislature did not give counties a general authority to expand the platting requirement or to direct the Register of Deeds. The county couldn't manufacture that authority.

The AG's second ground (preemption) was the more elaborate one. The three preemption tests from In re Yankton County Commission (2003) all pointed the same direction:

• Duplication. Where the ordinance's "no recording without a plat" rule overlapped with SDCL 43-21-1's "no recording without a plat for metes-and-bounds divisions" rule, the ordinance was void as duplicative.
• Conflict. Where the ordinance prohibited recording that state law allowed (footage descriptions, metes-and-bounds descriptions with previously-recorded predecessors under SDCL 43-21-4.1, plats under SDCL 43-21-5, railroad property under SDCL 43-30-16, Army-acquired property under SDCL 43-30-17), the ordinance was in direct conflict with state law and was preempted.
• Field occupation. The Legislature had comprehensively addressed what may be recorded and when. The ordinance intruded on that field and was preempted on that ground too.

The opinion also offered a useful distinction between metes-and-bounds and footage descriptions, with a 1947-48 Biennial Report quote defining metes and bounds as "determined by courses and distances and must be marked by lines enclosing the entire tract." That definition has had staying power in South Dakota title practice.

The opinion closed firmly. McCook County could not enact the proposed ordinance. The Register of Deeds could not be directed to refuse otherwise-recordable instruments. If the county wanted broader subdivision regulation, it had to either find a different statutory hook (existing land-use planning authority within its scope) or seek legislative action.

Citations and references

Statutes:
- SDCL 7-9-7(1) (legal description for recording)
- SDCL 11-3-8 (county role in platting where statutorily authorized)
- SDCL ch. 43-21 (subdivision platting)
- SDCL 43-21-1 (metes-and-bounds platting trigger)
- SDCL 43-21-4.1 (recordation of previously-recorded metes-and-bounds)
- SDCL 43-21-5 (recordation of non-compliant plats)
- SDCL 43-28-1 (recording legal descriptions)
- SDCL 43-30-16 (railroad property exemption)
- SDCL 43-30-17 (Army-acquired property exemption)

Cases:
- Heine Farms v. Yankton County, 2002 S.D. 88, 649 N.W.2d 597
- Pennington County v. State of South Dakota, 2002 S.D. 31, 641 N.W.2d 127
- In re Yankton County Commission, 2003 S.D. 109, 670 N.W.2d 34
- Rantapaa v. Black Hills Chairlift Co., 2001 S.D. 111, 633 N.W.2d 196
- South Dakota Mining Ass'n, Inc. v. Lawrence County, 977 F.Supp. 1396 (D.S.D. 1997), aff'd, 155 F.3d 1005 (8th Cir. 1998)
- Big Stone Broadcasting, Inc. v. Lindbloom, 161 F.Supp.2d 1009 (D.S.D. 2001)

Prior AG materials:
- South Dakota AGR 75-24 (counties derive power from Legislature)
- South Dakota AGR 75-173 (metes and bounds usage)
- South Dakota AGR 85-50 (preemption of inconsistent local ordinance)
- South Dakota AGR 86-04 (preemption of inconsistent local ordinance)
- Biennial Report of the Attorney General, 1947-48 (metes and bounds definition)

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinions.aspx
• Original PDF: https://atg.sd.gov/OfficialOpinions/Official%20Opinion%2006-04.pdf

Original opinion text

OFFICIAL OPINION NO. 06-04, Preemption of County Ordinance

May 1, 2006

Mr. Roger R. Gerlach
McCook County States Attorney
P.O. Box 544
Salem, SD 57058

OFFICIAL OPINION NO. 06-04

PREEMPTION OF COUNTY ORDINANCE

Dear Mr. Gerlach:

You have requested an opinion from this Office concerning the following factual situation:

FACTS:

McCook County is in the process of adopting a subdivision ordinance which states "It shall be unlawful for any person having control of any land within the jurisdiction of McCook County to subdivide or lay-out such land in lots, unless by plat. If not platted, the Register of Deeds is not to record the transfer." SDCL 43-21-1 allows a deed to be recorded if in footage legal description (not platted).

Based on these facts you have asked the following question.

QUESTION:

May the McCook County Commissioners enact a zoning ordinance that is more restrictive than state statute because it directs the Register of Deeds not to record a deed on a parcel that is not platted even though the description in the deed is valid according to state law?

IN RE QUESTION:

A county commission has only those powers expressly granted by the Legislature, together with those powers necessarily implied from the legislative grant in order to carry out those express powers. Heine Farms v. Yankton County, 2002 SD 88, ¶17, 649 NW2d 597, 601; AGR 75-24. "Counties, like cities, lack inherent authority and derive their power from the Legislature." Pennington Co. v. State of South Dakota, 2002 SD 31, ¶10, 641 NW2d 127.

The proposed McCook County Ordinance purports to do two things. First it seeks to require a plat in order for someone to subdivide or lay-out land in lots within the jurisdiction of the county. Second, it directs the McCook County Register of Deeds not to record a transfer of such lands unless those lands have been platted.

SDCL 43-21-1 provides as follows:

When any owner of a government subdivision or a platted tract or lot which is within or without the corporate limits of any municipality shall divide the same into parcels for the purpose of transfer that cannot be described except by metes and bounds, he shall cause the parcels of land so divided to be platted into lots and have the lots numbered and a plat thereof recorded before any instrument of transfer of such divided parcels of land shall be recorded. If such plat cannot be made without an actual survey he shall have such lands surveyed and the plat thereof recorded. The provisions of this section do not apply to parcels subject to a contract with the United States secretary of agriculture pursuant to the United States Conservation Reserve Program, as established in Subtitle D of Title XII of the United States Food Security Act of 1985, as amended on January 25, 1988, and which parcel is being transferred to or from the South Dakota Building Authority.

This statute only requires platting when property is divided and cannot be described except by metes and bounds description. SDCL 43-21-4.1 authorizes the recordation of a conveyance containing a metes and bounds description if a previous conveyance with the same metes and bounds description has been recorded.

McCook County seeks to avoid the reach of this statute, and the legislative exemptions from platting, by adoption of a county ordinance which on its face would require platting in all instances. Nowhere in statute has the Legislature given authority to a county to determine what has to be platted, nor do I find such authority to be implied. The Legislature has specified what information needs to be in plats, has set forth the process to follow to record and plat, and has specified when a plat is required. Where the Legislature intended to involve counties in that process, it specifically provided for that involvement. See, e.g., SDCL 11-3-8. In my opinion the county commissioners lack the legal authority to adopt the ordinance you describe above.

Furthermore, in my opinion the proposed county ordinance is preempted by state law. The South Dakota Supreme Court has identified three ways in which state statutes may preempt local ordinances.

There are several ways in which a local ordinance may conflict with state law. In that event, state law preempts or abrogates the conflicting local law. First, an ordinance may prohibit an act which is forbidden by state law and, in that event, the ordinance is void to the extent it duplicates state law. Second, a conflict may exist between state law and an ordinance because one prohibits what the other allows. And, third, state law may occupy a particular field to the exclusion of all local regulation.

In re Yankton Co. Commission, 2003 SD 109, ¶15, 670 NW2d 34, quoting Rantapaa v. Black Hills Chairlift Co., 2001 SD 111, ¶23, 633 NW2d 196, 203. (Citations omitted).

The Court's analysis of state preemption of county ordinances is analogous to the issue federal preemption of state law. Accordingly the Court has looked to the United States Supreme Court's preemption analysis for guidance. In re Yankton Co. Commission, supra, 2003 SD 109, ¶16, 670 NW2d 34. Federal court analysis indicates that conflict preemption occurs when there is a conflict between federal and state law or when it is impossible to comply with both federal and state law. South Dakota Mining Ass'n, Inc. v. Lawrence Co., 977 F.Supp. 1396, 1401 (DSD 1997); aff'd 155 F3d 1005 (8th Cir. 1998).

"A conflict exists when the local enactment 'stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'" . . . . Once state law is found to conflict with federal law, the state law is deemed to be "without effect."

Id. (Citations omitted). (See also, Big Stone Broadcasting, Inc. v. Lindbloom, 161 F.Supp.2d 1009 (DSD 2001).

Applying this analysis to the facts you present leads to the conclusion that the proposed ordinance being considered by McCook County would be preempted by state law. To the extent that the proposed ordinance duplicates the requirements of SDCL 43-21-1, the ordinance is void. In re Yankton Co. Commission, 2003 SD 109 ¶¶ 14, 15, 670 NW2d 34. Second, the proposed ordinance would require platting in several instances where the Legislature has determined that platting and compliance with SDCL 43-21-1 is not required. The proposed ordinance directly conflicts with SDCL 43-21-4.1 which allows for the recordation of metes and bounds descriptions in cases where such a description has been recorded before. The ordinance would also be in conflict with SDCL 43-21-5 which authorizes the recording of certain plats that do not comply with SDCL chapter 43-21. The ordinance would also be contrary to SDCL 43-30-16 (certain railroad property) and SDCL 43-30-17 (certain property acquired from the Secretary of the Army) both of which statutes provide exemptions from the platting requirements of SDCL chapter 43-21. Because the proposed ordinance seeks to prohibit what the state statute allows, the ordinance is preempted. See AGR 85-50; AGR 86-04.

Keep in mind that SDCL 43-21-1 prohibits the use of a metes and bounds description where a property owner is dividing land for purposes of transfer and the land transferred cannot be described except by metes and bounds. AGR 75-173. Although "metes and bounds" is not defined in statute, our office has in past opinions stated:

A 'metes and bounds' description is determined by courses and distances and must be marked by lines enclosing the entire tract. A 'course' as used in reference to boundary is a direction of a line with reference to a meridian. . . . The rectangular tract which you describe is bounded on two sides by lines established by the United States Government survey and by two lines parallel thereto. I do not think this constitutes a 'metes and bounds' description within the meaning of the statute under consideration.

Biennial Report of the Attorney General, 1947-48, page 63.

It is not clear whether it is only metes and bounds descriptions that are of concern to you. For example, a legal description that describes the East 1400 feet of the North 2400 feet of the N1/2 of the section, containing a stated number of acres more or less could be construed as a "footage legal description" as you refer to in your statement of facts. Such a description is not in my opinion a metes and bounds description. Therefore, SDCL 43-21-1 has no application to such property descriptions and platting is not required under SDCL 43-21-1.

Such property descriptions, however, notwithstanding the reference to "footage," constitute a "legal description" for purposes of determining compliance with SDCL 7-9-7(1). These deeds are entitled to be recorded. SDCL 43-28-1.

Thus the question becomes whether a county commission may by ordinance instruct a register of deeds not to record a document, which is otherwise recordable under statute, by requiring the platting of property in circumstances where the Legislature has not seen fit to do so. In my opinion, the answer is no.

Nowhere in statute has the Legislature granted authority to county commissioners to determine what a register of deeds may record. Neither is such authority implied in order for the county to carry out expressly granted powers. Indeed, an examination of the various statutes that deal with recordation of documents affecting the title to or possession of real property, makes clear that the Legislature has made the subject of what may be recorded its sole province. In my opinion the answer to your question is No.

Very truly yours,

Larry Long
ATTORNEY GENERAL

LL/HHD/lde