In a South Dakota county that has adopted a comprehensive plan, can the county commission hear variance requests from the county subdivision ordinance on its own, or does the board of adjustment have to handle them?
Plain-English summary
Pennington County, getting ready for a comprehensive review of its land-use ordinances, ran into a procedural question. The county had two ordinances adopted under SDCL Chapter 11-2: a Subdivision Ordinance and a Zoning Ordinance. The Subdivision Ordinance authorized the Board of County Commissioners to hear variance requests from its own terms. The Board of Adjustment heard only Zoning Ordinance variance requests. The Pennington County State's Attorney asked AG Jason Ravnsborg whether that split was lawful, or whether SDCL 11-2-49 required all SDCL Chapter 11-2 variances (subdivision plus zoning) to go to the Board of Adjustment.
The AG read SDCL 11-2-49 as requiring all variance requests under SDCL Chapter 11-2 ordinances to go to the Board of Adjustment, with a two-thirds vote required to grant under SDCL 11-2-59. The phrase "the ordinance" in SDCL 11-2-49 referred to whichever ordinance the Board of Adjustment had under review, including subdivision ordinances.
The opinion then dealt with SDCL 11-2-17.1, a provision that some counties had read as carving out subdivision ordinances from the SDCL Chapter 11-2 procedural requirements. Ravnsborg said no. SDCL 11-2-17.1 by its own terms states "This section does not apply to any county that has adopted a comprehensive plan." Pennington County had adopted a comprehensive plan years before, so the carve-out did not reach it.
Ravnsborg added a second, alternative ground: even in counties that have not adopted comprehensive plans, SDCL 11-2-17.1 only excuses procedural requirements for enacting or amending a subdivision ordinance. It does not reach variances. A variance is the granting of permission to depart from an ordinance's strict application; it is not the enactment or amendment of the ordinance itself. So even a non-comprehensive-plan county must route variance requests under any subdivision ordinance to its board of adjustment under SDCL 11-2-49.
The bottom line: in Pennington County (and any other SD county with a comprehensive plan), variances from county subdivision ordinances must be heard by the Board of Adjustment, not by the Board of County Commissioners, with the two-thirds vote required for approval.
Currency note
This opinion was issued in 2019. 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 Chapter 11-2 has been amended several times since 2019; current county officials should consult the current text of SDCL 11-2-17.1 and 11-2-49 before acting on a variance request.
What the opinion meant at the time
The opinion settled a procedural question that affected how Pennington County (Rapid City and surrounding area) and likely several other counties handled land-use variances. Counties whose subdivision ordinances vested variance authority in the county commission, rather than the board of adjustment, had been operating outside the statutory framework. The AG's reading required them to route those variance requests to the board of adjustment, with the higher (two-thirds) supermajority required for approval.
The structural shift mattered in two ways:
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Decisional independence. Boards of adjustment in SD are typically appointed bodies of varying composition, separate from the county commission. Routing variances to the board of adjustment moves a quasi-judicial decision away from elected county commissioners and to a body intended to be insulated from political pressure.
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Voting threshold. SDCL 11-2-59 requires a two-thirds vote to grant a variance. That is a higher hurdle than a simple majority of the county commission, and meant variance denials would be more sticky once issued.
Ravnsborg's reading also reinforced South Dakota's general statutory-construction approach (citing Olson, Wintersteen, and Taliaferro): when a statute speaks plainly, do not read in exceptions the legislature did not write.
Common questions
Q: Is this opinion still good law?
A: As of the time of writing it remains the AG's most recent guidance on the SDCL 11-2-49 / 11-2-17.1 interaction. Specific counties should verify against current SDCL Chapter 11-2 text and check whether the legislature has amended the relevant sections since 2019.
Q: What is a "comprehensive plan" in South Dakota land-use law?
A: A comprehensive plan is the long-range planning document a county or municipality adopts to guide land use, infrastructure, transportation, and development. SDCL 11-2-17 requires that any subdivision ordinance be made "in accordance with the comprehensive plan." Adopting a comprehensive plan triggers the standard SDCL Chapter 11-2 procedural requirements, including the role of the board of adjustment.
Q: What if a county has not adopted a comprehensive plan?
A: Under the carve-out in SDCL 11-2-17.1, such a county can enact a subdivision ordinance without following all SDCL Chapter 11-2 procedures (it still needs the public hearing and notice required by SDCL 11-2-17.1 itself). But the AG's alternative ground says that even in a county without a comprehensive plan, variance requests under the subdivision ordinance must still be heard by the board of adjustment under SDCL 11-2-49. The carve-out reaches enactment and amendment, not variance.
Q: Why does SDCL 11-2-59 require a two-thirds vote?
A: Variances are exceptions to general rules and so the legislature imposed a supermajority requirement to make granting a variance harder than denying one. The two-thirds threshold applies to all SDCL Chapter 11-2 variance grants, including subdivision-ordinance variances.
Q: Can a county fix this by amending its subdivision ordinance?
A: A county cannot by ordinance reassign variance authority away from the board of adjustment. The statute (SDCL 11-2-49) controls. A county whose ordinance purports to give variance authority to the county commission is operating under an ordinance provision that is preempted; the proper fix is to update the ordinance to track the statute.
Q: Does this affect cities or municipalities?
A: SDCL Chapter 11-2 governs counties. Cities operate under SDCL Title 11 chapters specific to municipalities. Similar but separate statutes govern variances in city zoning and subdivision contexts.
Background and statutory framework
SDCL Chapter 11-2 is the county zoning and subdivision-control chapter. It distinguishes between three types of action:
- Enactment or amendment of zoning ordinances, governed by SDCL 11-2-17 and surrounding provisions.
- Enactment of permanent subdivision ordinances, governed by SDCL 11-2-17.1, with a special carve-out for counties without comprehensive plans.
- Granting variances to either zoning or subdivision ordinances, governed by SDCL 11-2-49 (board of adjustment role), SDCL 11-2-59 (two-thirds vote), and SDCL 11-2-60 (additional variance provisions).
Pennington County had adopted a comprehensive plan, which by SDCL 11-2-17.1's own terms removed it from the carve-out. The AG's primary holding therefore did not need the alternative-ground reasoning. But the alternative ground sharpens the rule for any county that thought it could route subdivision variances away from the board of adjustment by being a non-comprehensive-plan county. It cannot. SDCL 11-2-49 reaches all SDCL Chapter 11-2 variances.
The two-thirds-vote requirement in SDCL 11-2-59 fits the design: boards of adjustment are quasi-judicial bodies that exist to handle individual deviations from generally applicable rules. The higher threshold protects the integrity of the underlying ordinance against frequent erosion.
Citations and references
Statutes:
- SDCL 11-2-1(1) (definitions, "board")
- SDCL 11-2-17 (subdivision ordinances in accord with comprehensive plan)
- SDCL 11-2-17.1 (permanent subdivision ordinance authority)
- SDCL 11-2-49 (board of adjustment hears variance requests)
- SDCL 11-2-59 (two-thirds vote requirement)
- SDCL 11-2-60 (variances)
Cases:
- Olson v. Butte County Commission, 2019 S.D. 13, 925 N.W.2d 463
- Goetz v. State, 2001 S.D. 138, 636 N.W.2d 675
- In re Wintersteen Revocable Trust Agreement, 2018 S.D. 12, 907 N.W.2d 785
- In re Taliaferro, 2014 S.D. 82, 856 N.W.2d 805
Treatises:
- 3 Rathkopf's The Law of Zoning and Planning § 58:1 (4th Ed.) (definition of variance)
Source
Original opinion text
Official Opinion No. 19-03
Re: Requests for a Variance from County Subdivision Ordinances
Dear Mr. Vargo,
In your capacity as the Pennington County State's Attorney, you have requested an official opinion from the Attorney General's Office on the following question:
QUESTION:
Does SDCL 11-2-49 require that a request for a variance from the Pennington County Subdivision Ordinance be heard and decided by the County's Board of Adjustment or does SDCL 11-2-17.1 exempt county subdivision ordinances from the procedural requirements of SDCL ch. 11-2?
ANSWER:
The plain language of SDCL 11-2-17.1 indicates that it is not applicable to Pennington County. Requests for variances from a county subdivision ordinance must be heard by the county's board of adjustment.
FACTS:
Pennington County intends a comprehensive review and re-write of its land use ordinances. Several years ago, Pennington County adopted a comprehensive plan. Pennington County has also adopted a Subdivision Ordinance and Zoning Ordinance. Both the Subdivision Ordinance and the Zoning Ordinance were adopted by Pennington County under the authority granted by SDCL ch.11-2. Currently, the Pennington County Subdivision Ordinance authorizes the Board of County Commissioners to hear and decide requests for variances from the Subdivision Ordinance. The Pennington County Board of Adjustment only considers requests for variances from the Pennington County Zoning Ordinance.
IN RE QUESTION:
You have asked whether requests for variances to the Pennington County Subdivision Ordinance must be heard by the county Board of Adjustment under SDCL 11-2-49, or whether the Subdivision Ordinance variance requests may be heard by the County Commission under SDCL 11-2-17.1?
SDCL 11-2-49 provides:
Except as otherwise provided by § 11-2-60, the board shall provide for the appointment of a board of adjustment, or for the planning and zoning commission to act as a board of adjustment, and in the regulations and restrictions adopted pursuant to the authority of this chapter, shall provide that the board of adjustment may, in appropriate cases and subject to appropriate conditions and safeguards, grant variances to the terms of the ordinance.
In reviewing a statute, "'the language expressed in the statute is the paramount consideration.'" Olson v. Butte County Commission, 2019 S.D. 13, ¶ 5, 925 N.W.2d 463, 464 (quoting Goetz v. State, 2001 S.D. 138, ¶ 5, 636 N.W.2d 675, 681).
When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Court's only function is to declare the meaning of the statute as clearly expressed. When we must, however, resort to statutory construction, the intent of the legislature is derived from the plain, ordinary and popular meaning of the statutory language.
In re Wintersteen Revocable Trust Agreement, 2018 S.D. 12, ¶ 12, 907 N.W.2d 785, 789 (citations omitted). The intent of a statute "'must be determined from the statute as a whole, as well as enactments relating to the same subject.'" In re Taliaferro, 2014 S.D. 82, ¶ 6, 856 N.W.2d 805, 806-07 (citations omitted).
"Board" is defined in SDCL ch. 11-2 as "the board of county commissioners[.]" SDCL 11-2-1(1). "[T]he ordinance" is not otherwise defined in SDCL ch. 11-2. Based upon a review of the remaining statutes in the chapter, I conclude that the use of the phrase "the ordinance" in SDCL 11-2-49 was intended by the Legislature to refer to whichever ordinance a board of adjustment has under review when considering a specific variance request.
You indicate in your opinion request that some counties interpret SDCL 11-2-17.1 as carving out an exception for county subdivision ordinances from the procedural requirements of SDCL ch. 11-2, including the requirement that variance requests be heard by the county board of adjustment.
SDCL 11-2-17.1 states:
The board may enact permanent subdivision ordinances as defined in subdivision 11-2-1(7). The board need not follow the procedures provided in this chapter pursuant to the comprehensive plan in implementing this section. This section does not apply to any county that has adopted a comprehensive plan. Before adoption of its subdivision ordinance or any amendment thereto, the commission shall hold at least one public hearing. Notice of the time and place of the hearing shall be given once at least ten days in advance by publication in a legal newspaper of the county. Any interested person shall be given a full, fair, and complete opportunity to be heard at the hearing, and the governing body may refuse or adopt the ordinance, with or without amendment.
The statute clearly provides that its terms are not applicable to "any county that has adopted a comprehensive plan." Pennington County has adopted a comprehensive plan, and therefore the terms of SDCL 11-2-17.1 are not applicable to Pennington County.
Pennington County's Subdivision Ordinance was enacted pursuant to the authority granted to the County by SDCL ch. 11-2. SDCL 11-2-49 requires the Pennington County Board of Adjustment to consider requests for variances from the county Subdivision Ordinance. SDCL 11-2-59 and -60 require a two-thirds vote of the members of that board to approve any such variance request.
While not necessary to resolve your inquiry, I also conclude that SDCL 11-2-17.1 does not create an exception from the requirements of SDCL 11-2-49 for variances of those subdivision ordinances enacted in counties that have not also enacted a comprehensive plan.
SDCL 11-2-17 requires that "subdivision ordinance[s] … shall be made in accordance with the comprehensive plan." SDCL 11-2-17.1 indicates that a board of county commissioners does not "need to follow the procedures provided in [SDCL ch. 11-2] pursuant to the comprehensive plan in implementing this section." As noted above, SDCL 11-2-17.1 unambiguously indicates that it does not apply to those counties that have adopted comprehensive plans.
In reading the two statues together, I conclude the most reasonable interpretation of their terms leads to the conclusion that SDCL 11-2-17.1 authorizes counties that have not adopted comprehensive plans to also enact subdivision ordinances and authorizes these counties to do so without otherwise following the procedural provisions of SDCL ch. 11-2. However, the language of SDCL 11-2-17.1 limits this exception only to the implementation of that statute. SDCL 11-2-17.1 contains language requiring notice and a hearing before adoption of a subdivision ordinance "or any amendment thereto." Based upon the terms of the statute, the implementation of SDCL 11-2-17.1 then includes the enactment of a subdivision ordinance or the consideration of any amendment thereto. A variance, however, is not the enactment of an ordinance or an amendment to the terms of an ordinance. A variance is the granting of permission to a property owner to depart in some manner from the strict application of the terms of an ordinance. 3 Rathkopf's The Law of Zoning and Planning § 58:1 (4th Ed.).
SDCL 11-2-49 specifically indicates its provisions are applicable to the "regulations and restrictions adopted pursuant to [SDCL ch. 11-2]." I conclude that while SDCL 11-2-17.1 creates an exception for the enactment or amendment of subdivision ordinances in those counties that have not adopted comprehensive plans, SDCL 11-2-49 still controls the consideration of variance requests in those counties and these requests must be heard by the county board of adjustment.
CONCLUSION
I conclude that consideration of requests for variances from the Pennington County Subdivision Ordinance must be heard by the County's Board of Adjustment. SDCL 11-2-49 applies to requests for variances of all regulations adopted pursuant to SDCL ch. 11-2. SDCL 11-2-59 requires a two-thirds vote of the members of the board of adjustment to grant a variance. SDCL 11-2-17.1 does not except subdivision ordinance variance requests from consideration by a county's board of adjustment.
Sincerely,
Jason R. Ravnsborg
ATTORNEY GENERAL
JRR/SRB/lde