Can a South Dakota County Planning Commission, on its own, approve a change or amendment to the County Comprehensive Plan, or does the change require approval from the Board of County Commissioners?
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This page answers the general question as of 1977. Ask about yours and see what current South Dakota law means for your facts, with citations you can check.
Plain-English summary
Mr. Rachetto asked AG William Janklow a structural question about South Dakota county zoning: when a landowner or developer wants to change the County Comprehensive Plan, does the County Planning Commission have authority to grant the change on its own, or must the Board of County Commissioners approve?
Janklow's answer was unambiguous: the Planning Commission cannot amend the Comprehensive Plan without approval by the Board of County Commissioners.
He pointed to two statutes. SDCL 11-2-20 stated that "the initial adoption of the County Comprehensive Plan or any part, amendment or addition thereto, shall be by resolution or ordinance upon an affirmative vote of not less than a majority of all the members of the board of county commissioners."
SDCL 11-2-28 reinforced the point for ongoing changes: "Regulations, restrictions, and boundaries, or enforcement provisions established in the comprehensive plan or adjuncts thereto adopted by the board of county commissioners may from time to time be amended, supplemented, changed, modified, or repealed by action of the board of county commissioners as outlined in this chapter." Even when a landowner petition (30% of landowners in the affected district) initiates the change, the action that effects the change is action by the board, not by the commission.
Janklow concluded that proposed changes had no legal significance before the Board of County Commissioners approved them. A Planning Commission could not grant an amendment on its own.
The opinion did not address how much weight the board must give to the commission's recommendation, what notice and hearing requirements apply, or what landowners can do if the commission stalls. Those were left to other statutory provisions and case law.
Currency note
This opinion was issued in the late 1970s. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. SDCL chapter 11-2 may have been amended since the 1970s, including the hearing, public-notice, and amendment provisions and the section numbers cited here. Modern county zoning practice in South Dakota should be verified against current SDCL chapter 11-2 and applicable county zoning ordinances rather than relied upon from this opinion's specific section references.
What the opinion meant at the time
For a County Planning Commission, its decision on a proposed plan change was insufficient without board approval. The opinion did not specify how the commission should conduct its review.
For a Board of County Commissioners, SDCL 11-2-20 required a resolution or ordinance adopted by at least a majority of all its members for initial adoption of the plan or any amendment or addition.
For a landowner seeking a plan change, a Planning Commission decision alone had no legal significance. Board approval was required for the proposed change to matter legally.
For county counsel, the relevant check under this opinion was whether the Board of County Commissioners approved the proposed plan change.
Common questions
Q: What does a County Planning Commission actually do then?
A: This opinion addressed only whether the commission could change the plan without board approval. It held that it could not; the opinion did not describe the commission's other duties.
Q: How much does the board defer to the commission?
A: The opinion did not specify a deference standard. It said proposed changes lack legal significance until the board approves them.
Q: What is the "30 percent of landowners" petition under SDCL 11-2-28?
A: The quoted statute allowed thirty per cent of landowners in the zoning district or districts requesting a change to petition for an amendment. The AG still required board approval before a proposed change gained legal significance.
Q: Does the Planning Commission have any binding authority over land use?
A: This opinion answered only whether the commission could change or amend the comprehensive plan without board approval. It did not decide the scope of the commission's other powers.
Q: What happens if the Planning Commission tries to act unilaterally?
A: The AG said a proposed plan change has no legal significance until the Board of County Commissioners approves it. The opinion did not address enforcement against a landowner or a board's response to a commission decision.
Background and statutory framework
The question concerned a County Planning Commission created by SDCL 11-2-2 and a comprehensive plan adopted by the Board of County Commissioners. The AG focused on the statutes assigning plan adoption and amendment to the board.
SDCL 11-2-20 required a resolution or ordinance supported by at least a majority of all board members for initial plan adoption or any part, amendment, or addition.
SDCL 11-2-28 governs the ongoing amendment process and explicitly contemplates landowner-initiated changes via petition. The statute lists five things that can be done with the existing plan: amend, supplement, change, modify, or repeal. Each requires "action by the board of county commissioners."
Janklow read those provisions to require board approval before a proposed plan change has legal significance.
Source
Original opinion text
Whether the County Planning Commission has authority to grant changes or amendments to the County Comprehensive Plan without approval from the Board of County Commissioners
Dear Mr. Rachetto:
You have requested an opinion from this office in regard to the following question:
QUESTION:
Does the County Planning Commission, as created by SDCL 11-2-2, have the authority to grant changes or amendments to the County Comprehensive Plan without approval from the Board of County Commissioners? In other words, is the decision of the County Planning Commission legally sufficient to change or alter the adopted County Comprehensive Plan, without formal approval by the County Board of County Commissioners?
SDCL 11-2-20 provides that the initial adoption of the County Comprehensive Plan or any part, amendment or addition thereto, shall be by resolution or ordinance upon an affirmative vote of not less than a majority of all the members of the board of county commissioners.
SDCL 11-2-28 further provides:
Regulations, restrictions, and boundaries, or enforcement provisions established in the comprehensive plan or adjuncts thereto adopted by the board of county commissioners may from time to time be amended, supplemented, changed, modified, or repealed by action of the board of county commissioners as outlined in this chapter. Such amendment, supplement, change, modification, or repeal may be requested through a petition by thirty per cent of the landowners in the zoning district or districts requesting change.
In my opinion the above cited statutes provide that any changes to the County Comprehensive Plan must be approved by the Board of County Commissioners before such proposed changes have any legal significance. Accordingly, it follows that a County Planning Commission, as such, does not have the authority to unilaterally grant changes or amendments to the County Comprehensive Plan without the prior approval of the Board of County Commissioners.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
WJJ:DOC:dk
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