Lawrence County's Board of County Commissioners had statutory zoning authority under SDCL 11-2. The organized township of St. Onge within Lawrence County wanted to take over full zoning powers (not just fact-finding) for its territory. The St. Onge township board had been making zoning recommendations to the county zoning commission. Could the county commissioners delegate full zoning authority to the township board?
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This page answers the general question as of 1974. Ask about yours and see what current South Dakota law means for your facts, with citations you can check.
Plain-English summary
Lawrence County's Board of County Commissioners had authority under SDCL 11-2 to appoint a zoning commission to prepare a comprehensive county plan. The request concerned the organized township of St. Onge within the county.
St. Onge's township board was making recommendations to the county zoning commission about desired zoning controls. The county commissioners asked whether they could give the township full zoning authority instead of a fact-finding role.
The question was whether county commissioners had authority to delegate those zoning powers to the township board.
The AG ruled they could not. The reasoning rested on the strict statutory boundary on organized township powers in SDCL 8-2-10:
"No organized township shall possess or exercise any powers except such as are enumerated in this chapter, or are especially given by law or are necessary to the exercise of the powers so enumerated or granted."
That meant townships had only three kinds of powers:
- Powers enumerated in the township powers chapter.
- Powers specifically given by other South Dakota laws.
- Powers necessary to the exercise of the enumerated or specifically-given powers.
Zoning fell into none of these categories for St. Onge. SDCL 8-2-9 was the only township-zoning provision, and it limited township zoning to townships within a certain distance of a city of 50,000 or more people. St. Onge did not meet that threshold. So St. Onge had no specifically-granted zoning power.
Could the county delegate its zoning power to fill the gap? No. SDCL 8-2-10 was a one-way ratchet: townships could not exercise powers beyond what the Legislature had given them. A county delegation could not create township powers that the Legislature had withheld. The county's zoning authority under SDCL 11-2 was the county's, and could not be sub-delegated to a body that lacked statutory zoning authority.
The opinion described the township's existing recommendations but did not decide how the county zoning commission should weigh them. Its holding was that the county could not give St. Onge zoning authority.
The AG relied on SDCL 8-2-10's limit on organized-township powers and SDCL 8-2-9's specific township-zoning circumstances, which did not include St. Onge.
Currency note
This opinion applied South Dakota zoning statutes in 1974. Check current county and township zoning law before using its delegation rule today.
What the opinion meant at the time
For Lawrence County, the opinion barred the proposed delegation of zoning authority to St. Onge.
For St. Onge township and similar small townships across South Dakota, the opinion confirmed that they were limited to the narrow powers given by statute. They could not bootstrap into broader authority by inter-governmental agreement.
For other counties considering similar arrangements with their townships, the opinion was a clear no. The county-to-township zoning delegation pathway was closed.
For a landowner in St. Onge, the township board did not acquire zoning power from the county commissioners under the proposed arrangement.
The AG said St. Onge did not qualify for the township-zoning authority in SDCL 8-2-9, which concerned townships within a certain distance of a city of at least 50,000 people.
The opinion did not assess the weight the county should give township residents' zoning preferences.
Common questions
Q: Why did SDCL 8-2-9 limit township zoning to townships near a 50,000+ city?
A: The opinion did not discuss the Legislature's reason for that limit. It said St. Onge did not qualify under the provision.
Q: How small was St. Onge township?
A: The opinion did not give its area or population.
Q: Could the county work around the ruling by giving the St. Onge board's recommendations very heavy weight in zoning decisions?
A: The opinion said St. Onge's board was already making recommendations to the county zoning commission. It did not decide how much weight to give them or discuss a township veto.
Q: What about advisory boards or sub-committees of the county zoning commission, could St. Onge residents serve on those?
A: The opinion did not address appointing township residents to county advisory bodies or subcommittees.
Q: Did the opinion bar inter-local agreements between the county and the township?
A: The opinion addressed only the proposed delegation of zoning powers. It did not discuss interlocal agreements or joint exercise of other powers.
Q: What if the township board enacted a "zoning" ordinance anyway and tried to enforce it?
A: The AG said St. Onge lacked zoning authority under the cited statutes. He did not address enforcement, challenges in court, or remedies against township officials.
Q: Did the AG cite any case law on the strict-construction rule for township powers?
A: No. The opinion cited no case law. The conclusion rested entirely on the plain language of SDCL 8-2-10, which limits an organized township to powers that are enumerated, specifically given by law, or necessary to those powers.
Background and statutory framework
The question contrasted the county's broad zoning authority under SDCL 11-2 with the limits on an organized township's powers under SDCL 8-2-10.
SDCL 8-2-10 limited townships to powers enumerated in its chapter, otherwise specifically given by law, or necessary to those powers.
SDCL 8-2-10 is the broadest limit on township powers, restating in negative form what the Legislature had not given. The provision functioned as a closed-list rule: if a power was not on the list, the township could not exercise it.
SDCL 8-2-9 provided specific circumstances when a township could pass zoning ordinances. The AG said St. Onge did not qualify because it was not within the specified distance of a city of 50,000 people or more.
SDCL 11-2 gave counties broad zoning power; the request said Lawrence County could appoint a zoning commission to prepare a comprehensive plan.
The interaction between township limits and county authority was the issue. The county had broad authority over zoning in its unincorporated areas. The township had no authority over zoning. The question was whether the county could share its authority with the township. The AG's answer (no) rested on the township-side limit: a body with no statutory zoning power could not be given zoning power by delegation, only by legislative grant.
The opinion was signed by Attorney General Kermit A. Sande.
Citations and references
Statutes:
- SDCL (1967) 11-2 (county zoning)
- SDCL 8-2-9 (township zoning, near 50,000+ city)
- SDCL 8-2-10 (township powers limited to enumerated, specifically given, or necessary)
Source
Original opinion text
Delegation of zoning authority by county commissioners to township board of organized township
Dear Mr. Hogarth:
You have asked for an opinion based on the following factual situation:
Pursuant to SDCL (1967) 11-2, the Board of County Commissioners of Lawrence County has the authority to appoint a zoning commission to prepare a comprehensive county plan. Within Lawrence County is the organized township of St. Onge. At the present time the township board of St. Onge township makes recommendations to the county zoning commission concerning desired official controls relating to zoning. The county commissioners would like to give the township full zoning powers as opposed to mere fact finding powers, and have inquired as to whether the county has the authority to delegate such powers to the township board of an organized township.
SDCL 8-2-10 says:
No organized township shall possess or exercise any powers except such as are enumerated in this chapter, or are especially given by law or are necessary to the exercise of the powers so enumerated or granted.
SDCL 8-2-9 gives the specific instances as to when a township may pass zoning ordinances. St. Onge does not qualify under SDCL 8-2-9. (The township must be within a certain distance of a city of 50,000 people or more.) SDCL 11-2 delegates to counties broad overall zoning power.
It is my opinion based on the above statutes, that the St. Onge township does not have zoning authority, and cannot be given that authority by the county commissioners, because of SDCL 8-2-10.
Respectfully submitted,
Kermit A. Sande
Attorney General
KAS:FRM:sk
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