Lawrence County's Board of County Commissioners had statutory zoning authority under SDCL Chapter 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?
Plain-English summary
Lawrence County in 1974 had county-level zoning under SDCL Chapter 11-2. The Board of County Commissioners had appointed a zoning commission to prepare and administer a comprehensive county plan. The plan covered all unincorporated areas in the county, including organized townships.
Within Lawrence County sat the organized township of St. Onge. Like other organized townships in South Dakota, St. Onge had a township board (3 elected supervisors plus a clerk and treasurer) and operated under SDCL Title 8. St. Onge's board had been participating in county zoning by making recommendations to the county zoning commission, but the recommendations were just that, not binding decisions.
The St. Onge board wanted more. They wanted full zoning authority for the township's territory: the power to make actual zoning decisions, not just recommendations. The county commissioners were apparently willing to grant this and asked the AG whether they could legally delegate full zoning powers to the St. Onge 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:
1. Powers enumerated in SDCL Chapter 8-2.
2. Powers specifically given by other South Dakota laws.
3. 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+ people. St. Onge did not meet that threshold (Lawrence County's largest city, Deadwood, was nowhere near 50,000). 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 Chapter 11-2 was the county's, and could not be sub-delegated to a body that lacked statutory zoning authority.
The practical effect was that St. Onge had to keep its advisory role. The township board could continue to make zoning recommendations to the county zoning commission, and the commission would consider those recommendations along with input from other townships and residents. But the actual zoning decisions for St. Onge's territory had to be made by the county zoning authority, not the township board.
The opinion's broader principle was important for South Dakota's two-tiered rural governance: counties have substantial governmental authority granted by statute, but organized townships have only narrow powers expressly enumerated. The county-township relationship is not analogous to a state-county or state-municipality relationship; it is a strictly enumerated framework with very little township discretion.
Currency note
This opinion was issued in 1974. 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. South Dakota's county zoning code (now SDCL Chapter 11-2) and township powers code (now SDCL Title 8) have been amended several times since 1974. The specific city-population thresholds for township zoning may have changed. Modern counties and townships seeking to clarify their zoning authority should consult current statute and any updated AG opinions or case law on county-township relations.
What the opinion meant at the time
For Lawrence County, the opinion blocked the planned delegation. The county had to keep its zoning authority and could not transfer it to St. Onge. The St. Onge board's role remained advisory.
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 rural landowners and developers, the opinion meant zoning rules were set at the county level for all unincorporated areas (except in townships near a 50,000+ city, which were rare in South Dakota). Predictability across township lines was higher because the county was the single source.
For the South Dakota Legislature, the opinion presumably signaled that if it wanted township-level zoning to be more widely available, it would have to amend SDCL 8-2-9 to lower the city-population threshold or add other circumstances. Without such an amendment, township zoning was effectively limited to a few suburban townships near larger cities.
For township residents who wanted more local control over land use, the opinion was a frustration. They had to rely on the county zoning process, which might give less weight to township-specific concerns than a township-level zoning would.
Common questions
Q: Why did SDCL 8-2-9 limit township zoning to townships near a 50,000+ city?
A: The provision presumably reflected a legislative judgment that township zoning made sense only in suburbanizing areas with development pressure from a large nearby city. Rural townships, by contrast, were thought to need county-level (not township-level) zoning. The opinion did not analyze the policy rationale.
Q: How small was St. Onge township?
A: The opinion did not say. As a typical South Dakota organized township, it likely had a few hundred residents in a six-mile-square area. The township government was modest: a 3-member board, clerk, treasurer, and various appointed officials.
Q: Could the county work around the ruling by giving the St. Onge board's recommendations very heavy weight in zoning decisions?
A: Yes, as a matter of practice. The county zoning commission was free to weigh the township board's recommendations as it chose. Heavy deference was permissible. But the formal decision had to be made at the county level, and the township could not have a veto.
Q: What about advisory boards or sub-committees of the county zoning commission, could St. Onge residents serve on those?
A: Yes. The county could appoint township residents to sub-committees or advisory bodies. The St. Onge board itself could not act as a zoning authority, but St. Onge residents could be part of the county zoning structure as appointed members.
Q: Did the opinion bar inter-local agreements between the county and the township?
A: It barred only the delegation of statutory zoning powers. The county and township could still cooperate on non-zoning matters (joint road maintenance, joint emergency services, etc.) under SDCL Chapter 1-24 (Joint Exercise of Powers), where the powers being jointly exercised were powers each entity had individually. But zoning was not such a power for the township.
Q: What if the township board enacted a "zoning" ordinance anyway and tried to enforce it?
A: It would be ultra vires, void from the beginning under SDCL 8-2-10. Any property owner could challenge it in circuit court and have it declared unenforceable. The township board members could potentially be enjoined from trying to enforce it.
Q: Did the AG cite any case law on the strict-construction rule for township powers?
A: No South Dakota case law was cited in this opinion. The conclusion rested on the plain language of SDCL 8-2-10. South Dakota Supreme Court cases like State v. Hansen (cited in other AG opinions for county-power strict construction) applied similar reasoning to counties; the same logic would apply to townships under SDCL 8-2-10's even-stricter limiting language.
Background and statutory framework
South Dakota's local government structure includes counties (general-purpose units with broad authority), municipalities (cities and towns with home-rule or charter authority), and organized townships (rural units within counties with very narrow powers). Townships are largely a holdover from the territorial era and remain in place mainly to handle local road maintenance and a few other narrowly-defined functions.
SDCL Title 8 governs township powers. The chapter structure reflects the limited township role: chapters on township elections, township officers, township roads, township meetings, but not much else. Townships are creatures of statute with strictly enumerated authority.
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 was the narrow exception that allowed some townships to engage in zoning. The provision specified zoning authority only for townships near a city of 50,000 or more population, which in 1974 South Dakota probably included a small number of townships around Sioux Falls (then about 75,000) and Rapid City (then growing toward 50,000). Most rural townships, including St. Onge in Lawrence County, fell outside the exception.
SDCL Chapter 11-2 was the general county zoning authority. Counties could appoint zoning commissions, draft comprehensive plans, and issue zoning ordinances applicable to all unincorporated areas in the county. The framework was modeled on standard mid-century zoning enabling acts and gave counties substantial discretion.
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.
Attorney General Kermit A. Sande signed this opinion. His tenure included several opinions enforcing strict construction of local government powers, paralleling the AG's earlier opinions on county and constitutional officer powers.
Citations and references
Statutes:
- SDCL (1967) Chapter 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
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