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?
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: only the Board of County Commissioners can amend the Comprehensive Plan. The Planning Commission's role is advisory and recommendatory.
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." The Legislature could not have been clearer: adoption and amendment are by-resolution-or-ordinance, by-the-board-of-commissioners, by-affirmative-majority.
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adopted by the board of county commissioners may from time to time be amended, supplemented, changed, modified, or repealed by action of the board of county commissioners as outlined in this chapter."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's conclusion was a clean three-step syllogism. The statute requires board action to amend the comprehensive plan. The Planning Commission is not the board. Therefore the Planning Commission cannot amend the plan unilaterally; its role is to recommend, with the board having final say.
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 has been amended multiple times since the 1970s, particularly to clarify hearing requirements, public notice rules, and the relationship between county planning commissions and the elected Board of County Commissioners. Modern county zoning practice in South Dakota should be verified against current SDCL chapter 11-2 statutes and applicable county zoning ordinances rather than relied upon from this opinion's specific section references.
What the opinion meant at the time
For County Planning Commissions, the opinion drew a clear line on authority. The commission could meet, take testimony, deliberate, and recommend, but it could not actually change the Comprehensive Plan. Its outputs were advisory inputs to the elected board.
For Boards of County Commissioners, the opinion confirmed final decision-making authority. The board could accept or reject a planning commission recommendation; the recommendation did not bind. The board had to act by resolution or ordinance with a majority vote.
For landowners and developers seeking rezoning, the opinion clarified the procedural endpoint. A favorable planning commission vote did not by itself rezone the land. The landowner had to pursue the matter through the board, and the change was only effective once the board passed a resolution or ordinance.
For county counsel, the opinion provided a useful procedural anchor for advising clients on the formalities. Any rezoning that lacked a board resolution or ordinance was vulnerable to challenge as not having actually changed the plan.
Common questions
Q: What does a County Planning Commission actually do then?
A: It conducts the underlying technical and public-input work that supports comprehensive planning. It receives applications, holds hearings, reviews compatibility with surrounding land uses, considers traffic and infrastructure impacts, and makes recommendations to the Board of County Commissioners. The commission is where most of the substantive work happens, but the board is where the legal change happens.
Q: How much does the board defer to the commission?
A: Not as a matter of statute. The board has independent authority to accept or reject the recommendation. As a matter of practice, boards often defer to commission recommendations because the commission has done the technical work; but the board is free to reach a different conclusion if it has reasons. Some boards require a supermajority vote to override a commission recommendation, but South Dakota's basic statutes do not impose that.
Q: What is the "30 percent of landowners" petition under SDCL 11-2-28?
A: It is one of the recognized mechanisms for initiating an amendment to the comprehensive plan. If 30% of the landowners in a zoning district sign a petition for change, the matter is brought before the planning bodies for consideration. The petition triggers the consideration process; it does not by itself effect the change.
Q: Does the Planning Commission have any binding authority over land use?
A: It has authority over the day-to-day administration of the existing plan (variances, special permits, conditional uses, plat approvals), all governed by the standards the board has adopted. What the commission cannot do is change the standards or the underlying plan itself.
Q: What happens if the Planning Commission tries to act unilaterally?
A: The action would have no legal effect. A landowner who relied on a commission-only decision to develop property contrary to the unchanged comprehensive plan would be subject to enforcement actions. A board could expressly disavow the commission action without going through any amendment procedure.
Background and statutory framework
South Dakota's county zoning enabling act is SDCL chapter 11-2. It authorizes counties to adopt comprehensive plans and zoning ordinances and establishes the institutional structure for doing so. Two bodies are involved: a planning commission (typically 5-9 members appointed by the board) and the elected Board of County Commissioners.
The statutory design follows the standard 1920s-vintage Standard State Zoning Enabling Act model. The planning commission handles the technical and recommendatory work; the elected board makes the binding decisions. The model was widely adopted across the United States in the 1920s and 1930s. South Dakota's version is a faithful adaptation.
SDCL 11-2-20 governs initial adoption of a comprehensive plan and any subsequent amendments to it. The phrase "any part, amendment or addition thereto" was the Legislature's catch-all to ensure that smaller revisions were treated with the same procedural rigor as the initial adoption.
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's opinion ties these provisions together. The Legislature has reserved the actual amendment decision to the elected board. The planning commission is essential to good comprehensive planning but does not have unilateral amendment power.
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
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