Can a new road district be created on land that's already inside an existing road district, and can the county commissioners say no to a road district petition?

Plain-English summary

A petition came into Custer County to create a new road district. The proposed boundaries overlapped real estate that was already inside an existing road district. The Custer County Commissioners denied the petition. The State's Attorney asked the AG two related questions: was the denial right on the merits (i.e. does state law allow overlapping road districts at all), and even setting that aside, do the commissioners ever have discretion to deny a road district petition.

AG Marty Jackley's answers:

1. Overlapping road districts are not authorized. SDCL Chapter 31-12A is the road district statute. It authorizes county-wide formation of districts in any unincorporated area for road work, with each district becoming a political subdivision (SDCL 31-12A-12) that can construct, maintain, and tax for roads within its boundaries (SDCL 31-12A-21). Nowhere does the chapter contemplate two districts sitting on the same dirt. The closest statutory mechanism is consolidation under SDCL 31-12A-29, where two existing districts can merge into one. That's the opposite of overlap.

The AG also walked through the practical absurdities of overlapping districts: double bureaucracy on the landowners, two separate tax/assessment levies for the same services, two competing road plans, two boards making decisions about the same roads. Statutes don't get read to produce absurd results when a sensible reading is available (Ibrahim v. Dep't of Pub. Safety; Argus Leader v. Hagen).

2. Commissioners must approve compliant petitions. SDCL 31-12A-6 says that "[i]f the board of county commissioners is satisfied that the requirements of this chapter have been fully complied with, the board shall issue an order declaring that the territory shall, with the assent of the voters," become a road district. The Court has consistently treated "shall" in this kind of statute as creating a mandatory duty (Heine Farms v. Yankton County; Preserve French Creek in 2024).

What this means operationally: the commissioners' job is to verify compliance, not to second-guess whether the road district is a good idea. The requirements are concrete: survey and map under SDCL 31-12A-2, petition signatures from at least 25% of landowners under SDCL 31-12A-3, specific petition contents (proposed name, statement of need, territory description, request for referendum), 20-day public examination period under SDCL 31-12A-4, and municipal approval if any of the proposed territory falls within a city's subdivision jurisdiction under SDCL 31-12A-5. If all those boxes are checked, the commissioners issue the order and the question goes to the voters of the territory.

For the Custer County situation, both points combined to produce the same outcome. The Custer petition was for an overlapping district; that was independently invalid because no statutory authority allows overlap. But the AG's broader rule is also important: had the petition not overlapped, the commissioners could not have denied it on policy grounds. They could have denied for non-compliance with one of the statutory requirements.

What this means for you

For Custer County and other county commissioners

You don't have discretion to deny a road district petition based on whether you think it's a good idea. Your gate is compliance with SDCL 31-12A-1 through 31-12A-5. Build a checklist: survey on file, map on file, signature count verified, petition contents present, 20-day exam period observed, any required municipal approval obtained. If all pass, issue the order and let the voters decide. If any fail, you can deny for that reason and the petitioners can fix the defect.

For states attorneys advising counties

This opinion is your reference when commissioners ask "can we just say no?" The answer is no, not for policy reasons, not for "we don't think it's needed," not for "this is going to cause administrative headaches." The legislative judgment that road districts can be formed is built into the statute. The only ground for denial is non-compliance with the petition requirements.

For rural landowners wanting to form a road district

Get the petition packet right. Survey and map first, then signatures (you need 25% of landowners in the proposed territory, so map your territory and identify all owners before you start collecting). Petition content should track SDCL 31-12A-3 word-for-word. Plan for the 20-day public examination window. If any of your proposed territory is within a city's subdivision jurisdiction (a one-mile buffer for many cities), get that city's approval before filing. A clean petition is approved as a matter of course.

For existing road districts worried about a competing district

The AG opinion gives you a clean defense if a petition tries to overlap your territory: it's not authorized. If your district wants to grow or merge with a neighbor, use the consolidation process under SDCL 31-12A-29. That's how the statute contemplates districts changing shape.

For rural real estate attorneys

Title work in road district territory should confirm which district covers which parcels. After this opinion, there's no risk of a second district sitting on top, but you still need to confirm the current district's boundaries and any consolidation activity. Tax and assessment statements should reflect a single district per parcel.

For county auditors and finance officers

A road district approval triggers downstream administrative work: tax/assessment levies, accounting setups, board records. Knowing that approval is mandatory once requirements are met means you can pre-plan the administrative side. The voter referendum still has to pass, so the district isn't fully formed until that happens.

Common questions

Q: Can two road districts ever share territory?
A: Not directly. The AG opinion says overlap is unauthorized. But two districts can consolidate under SDCL 31-12A-29 into a single combined district. That's not overlap; that's merger.

Q: What if a petition for a road district includes some land that's already in another district?
A: The petition is invalid as to the overlapping land. The petitioners would need to redraw the territory to exclude land already in another district, or pursue consolidation if the goal is unifying management.

Q: Do commissioners ever have any discretion?
A: Limited and procedural. They confirm compliance with the petition requirements. They can refuse a petition with missing signatures, an incorrect map, or no public examination period. They cannot refuse a complete petition because they think the district is unnecessary.

Q: What does "shall" do in SDCL 31-12A-6?
A: It creates a mandatory duty. The Supreme Court has used that interpretation consistently for "shall" in statutes that direct local government action. Preserve French Creek in 2024 reinforced the rule for a different county ordinance/resolution context.

Q: What happens after the commissioners issue the order?
A: The question goes to the voters within the proposed territory at a referendum. If voters approve, the district forms. If they reject, the district doesn't form. The commissioners' order is procedural, not final.

Q: Can commissioners impose conditions on the road district as part of approving the petition?
A: SDCL 31-12A-6 directs the commissioners to issue an order declaring the territory shall be a road district. There's no statutory authority for commissioners to impose conditions on the district's operations as a condition of approval. Conditions would amount to disguised discretion to deny, which the AG opinion rules out.

Q: What's the difference between a "road district" and a "consolidated road district"?
A: A road district is a single special-purpose subdivision formed under SDCL 31-12A-1 through 31-12A-12. A consolidated road district is two or more existing road districts that have merged into one combined district under SDCL 31-12A-29 and following.

Q: Can a road district levy taxes?
A: Yes. SDCL 31-12A-21 gives road districts authority to levy taxes and issue special assessments for road construction and maintenance within their territory. That's a key reason landowners file petitions, and also a key reason they sometimes oppose petitions.

Background and statutory framework

South Dakota's road network includes county roads, township roads, municipal streets, and state highways, each with its own funding and maintenance authority. Road districts under SDCL Chapter 31-12A are an additional mechanism, designed for unincorporated areas where landowners want a dedicated taxing/maintenance body for local roads. They're common in rural subdivisions, lake communities, and mountain enclaves.

The statutory architecture is structured to balance landowner initiative against local government oversight. Landowners initiate (petition with 25% signature threshold). Counties verify and order the referendum. Voters approve or reject. Once approved, the district becomes a political subdivision with limited but real authority: levy taxes, build and maintain roads within its territory, set speed and weight limits, conduct elections for its board.

The "no overlap" rule is implicit rather than explicit. The chapter never says "districts cannot overlap" in those words. But the consolidated road district provisions of SDCL 31-12A-29 through 31-12A-36 contemplate a different way for districts to change shape (merger, not overlap). The AG read the chapter as a whole and concluded the legislative scheme excludes overlap.

The mandatory approval rule is more explicit, anchored in the word "shall" in SDCL 31-12A-6. The opinion's analytical move is to track that word through the broader doctrinal landscape. Heine Farms in 2002 said "shall" creates mandatory duties for county commissioners. Preserve French Creek in 2024 reinforced the rule. The AG combines those to conclude commissioners must approve compliant petitions.

Citations and references

Statutes:
- SDCL Chapter 31-12A (road districts generally)
- SDCL 31-12A-1, -2, -3, -4, -5, -6 (formation procedure)
- SDCL 31-12A-12 (political subdivision status)
- SDCL 31-12A-21 (district powers)
- SDCL 31-12A-29 through -36 (consolidation)
- SDCL 7-18A-13 (county ordinance referendum, referenced in Preserve French Creek)

Cases:
- Jucht v. Schulz, 2024 S.D. 46, 11 N.W.3d 32
- Matter of I.A.D., 2023 S.D. 36, 993 N.W.2d 911
- Argus Leader Media v. Hogstad, 2017 S.D. 57, 902 N.W.2d 778
- In re Taliaferro, 2014 S.D. 82, 856 N.W.2d 805
- Ibrahim v. Dep't of Pub. Safety, 2021 S.D. 17, 956 N.W.2d 799
- Argus Leader v. Hagen, 2007 S.D. 96, 739 N.W.2d 475
- State v. Wilson, 2004 S.D. 33, 678 N.W.2d 176
- In re Wintersteen Revocable Trust Agreement, 2018 S.D. 12, 907 N.W.2d 785
- Heine Farms v. Yankton County, 2002 S.D. 88, 649 N.W.2d 597
- Preserve French Creek, Inc. v. County of Custer, 2024 S.D. 45, 10 N.W.3d 233

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinionhtml.aspx?id=1766
• Original PDF: https://atg.sd.gov/OfficialOpinions/Official%20Opinion%2024-04.pdf

Original opinion text

OFFICIAL OPINION 24-04

Re: Official Opinion Concerning the Formation of Overlapping Road Districts

Dear State's Attorney Kelley,

In your capacity as the State's Attorney for Custer County you have requested an official opinion from the Attorney General's Office on the following questions:

QUESTIONS:

• Does State law allow for the formation of a road district that includes within its boundaries real property already included within the boundaries of another road district?
• Does a Board of County Commissioners have the authority to deny formation of a proposed road district?

ANSWERS:

• No, State law does not allow for the formation of a road district that includes territory within its boundaries that is already included within the boundaries of another road district.
• No, the Board of County Commissioners has no discretion to deny the formation of a road district if the provisions of SDCL ch. 31-12A have been complied with.

FACTS:

Recently a petition was filed in Custer County to establish a road district that included within its proposed boundaries real property covered by a previously established road district. The Custer County Board of Commissioners denied the formation of the new road district.

IN RE QUESTION 1:

You have asked whether State law allows for the formation of overlapping road districts? No provision of SDCL ch. 31-12A directly addresses this question. The ambiguity of the chapter, in this regard, must be resolved through review of the "statute[s] as a whole, as well as enactments relating to the same subject." Jucht v. Schulz, 2024 S.D. 46, ¶ 7, 11 N.W.3d 32, 35 (quoting Matter of I.A.D., 2023 S.D. 36, ¶ 16, 993 N.W.2d 911, 916). The context of the statutes, as well their subject matter and the overall statutory scheme, can be determinative of legislative intent. Argus Leader Media v. Hogstad, 2017 S.D. 57, ¶¶ 8-10, 902 N.W.2d 778, 781-82 (context, including subject matter and purpose of statutory scheme, can be determinative of statutory interpretation); In re Taliaferro, 2014 S.D. 82, ¶ 6, 856 N.W.2d 805, 807 (enactments related to the same subject can be reviewed to determine statutory intent).

State law authorizes the formation of county road districts, in any area outside the boundary of a municipality, for the purposes of constructing and maintaining roads within the district. SDCL § 31-12A-1. A petition to establish a road district must "set forth" the need "for road work in the territory described in the petition[,] and [a] description of the territory proposed to be organized as a road district." SDCL § 31-12A-3. Once established, each road district is considered a political subdivision of the State. SDCL § 31-12A-12. Each organized road district has the authority to construct and maintain roads within the district, as well as establish speed and weight limits (or other restrictions) on roads within the district's jurisdiction. SDCL § 31-12A-21. Each road district also has the authority to levy taxes and issue special assessments to carry out the construction and maintenance of roads within the district. Id.

Based on a review of the above statutes, I find no legislative intent to allow the formation of overlapping road districts. The Legislature intends for road districts to be established in those geographic areas outside of municipalities where a need for road work exists. Once established, each organized road district becomes the political subdivision responsible for the construction and maintenance of roads within the geographic area of the district. That road district has the authority to levy taxes or issues special assessments to carry out any needed road work within the district. I find no evidence in these statutes, or any other statute in SDCL ch. 31-12A, of legislative intent to allow a second road district to be partially laid over the top of the first and have the same authority to construct roads, and levy taxes or assessments, within the same geographic territory as the original road district.

State law does allow for the consolidation of road districts: "two or more road districts may form a consolidated road district that comprises their combined area[.]" SDCL § 31-12A-29. Once established, a consolidated road district has the same powers granted by SDCL ch. 31-12A as any other road district. SDCL § 31-12A-31. You have not indicated that the proposed road district forming the basis of your inquiry was a consolidated road district. The statutes concerning consolidated road districts do not authorize overlapping road districts. See SDCL §§ 31-12A-29 through 31-12A-36. It is my opinion that the statutes concerning consolidated road districts authorize two or more road districts to merge with the geographic territory covered by the merged districts to then be managed by the consolidated road district. Hogstad, 2017 S.D. 57, ¶¶ 8-10.

Finally, to conclude that a second road district could be formed encompassing territory already covered by an existing road district also reaches an unreasonable or illogical result. By creating overlapping road districts, the bureaucratic burden on landowners in the overlapping districts is doubled. Also, property owners in the overlapping territory could be subject to taxes or assessments from each road district for the same services. Further, each road district may have competing ideas as to where roads should be constructed, or how roads should be maintained, in the overlapping territory. The doubling of the bureaucratic and tax burden on landowners in the overlapping districts, along with the potential for disputes between the overlapping districts, seems illogical and unreasonable. I cannot reach such a conclusion. Ibrahim v. Dep't of Pub. Safety, 2021 S.D. 17, ¶ 13, 956 N.W.2d 799, 803 (statutes are construed so as not to arrive at an illogical conclusion); Argus Leader v. Hagen, 2007 S.D. 96, ¶ 15, 739 N.W.2d 475, 480 ("In construing a statute, we presume 'that the legislature did not intend an absurd or unreasonable result' from the application of the statute." (quoting State v. Wilson, 2004 S.D. 33, ¶ 9, 678 N.W.2d 176, 180)).

Based upon the above analysis, I conclude that state law does not authorize the formation of a road district encompassing within its boundaries real property already included within the boundaries of another established road district.

IN RE QUESTION 2:

You have also asked whether a Board of County Commissioners has the authority to deny the formation of a proposed road district?

A petition to form a road district is required to be filed with the county and presented to its board of county commissioners for consideration. SDCL § 31-12A-3. After presentation of the petition, "[i]f the board of county commissioners is satisfied that the requirements of this chapter have been fully complied with, the board shall issue an order declaring that the territory shall, with the assent of the voters, ... be an incorporated road district by the name specified in the petition." SDCL § 31-12A-6 (emphasis added).

When the language used in a statute is unambiguous there is no need for further statutory construction. In re Wintersteen Revocable Trust Agreement, 2018 S.D. 12, ¶ 12, 907 N.W.2d 785, 789. The plain language of SDCL § 31-12A-6 leads me to conclude that a board of county commissioners has no discretion to deny formation of a proposed road district if the requirements of SDCL ch. 31-12A have been complied with.

The use of "shall" in the statute indicates legislative intent to create a mandatory obligation on behalf of the county commission. Heine Farms v. Yankton County ex rel. County Commissioners, 2002 S.D. 88, ¶ 13, 649 N.W.2d 597 601. See also Preserve French Creek, Inc. v. County of Custer, 2024 S.D. 45, ¶ 18, 10 N.W.3d 233, 240 (The use of "shall" in SDCL § 7-18A-13 created a mandatory duty on county to enact a proposed ordinance and resolution and present it to a vote of the people.). The language of SDCL § 31-12A-6 confers no discretion on a board of county commissioners to deny the formation of a road district if the requirements of SDCL ch. 31-12A have been complied with.

The general requirements of SDCL ch. 31-12A, necessary for formation of a road district, include "an accurate survey and map of the territory ... of the road district, showing the boundaries ... of the district." SDCL § 31-12A-2. A petition signed by no less than twenty-five percent of the landowners within the proposed district is required. SDCL 31-12A-3. The petition is required to contain the following information:

• The proposed name of the road district;
• That there is a need for road work in the territory described in the petition;
• A description of the territory proposed to be organized as a road district;
• A request that the board of county commissioners define the boundaries for the district, that a referendum be held within the territory so defined on the question of the creation of a road district in the territory; and that the board determine that such a district be created.

SDCL § 31-12A-3. Also required is a twenty-day opportunity for the public to examine the survey, map, and petition. SDCL § 31-12A-4. Finally, if any territory of the district is within the "subdivision jurisdiction of a municipality," the municipality is required to approve the petition before it is presented to the county commission. SDCL § 31-12A-5. If these requirements have been met, it is my opinion that a county commission has the obligation to "issue an order declaring that the territory [proposed to be organized road district] shall, with the assent of the voters, ... be an incorporated road district by the name specified in the petition."

CONCLUSION

I conclude that state law does not authorize the formation of a road district encompassing within its boundaries property already included within another established road district. There is no statutory authority nor evident legislative intent to allow the formation of overlapping road districts. Further allowing the formation of overlapping districts may reach an illogical or unreasonable result. I also conclude that a county commission has no discretion under SDCL § 31-12A-6 to deny formation of a road district if the requirements of SDCL ch. 31-12A have otherwise been met.

Sincerely,

Marty J. Jackley

ATTORNEY GENERAL