Can a new road district be formed that overlaps with an existing road district? And does the county commission have any say in whether a properly-petitioned road district gets created?

Plain-English summary

A petition went to the Custer County Commission asking it to create a new road district. The boundaries of the proposed district included real property already inside an existing road district. The Commission denied the petition. Custer County State's Attorney Kelley asked the AG two questions:

1. Can road districts overlap under SD law?
2. Does the Commission have discretion to deny a road-district petition?

The AG's answer to both: no.

On overlapping districts: SDCL chapter 31-12A is silent on whether overlaps are allowed, but the AG reads the entire chapter to forbid them. Road districts are political subdivisions with the power to construct and maintain roads, set speed and weight limits, and levy taxes or special assessments within their geographic territory. Two districts covering the same land would mean two sets of taxes for the same services, two sets of competing decisions about where to build roads, and two sets of bureaucratic layers on landowners. SDCL 31-12A-29 through -36 provide a route for districts to consolidate into one larger district, but not to overlap. The AG concludes that reading the statute to allow overlaps would produce "an unreasonable or illogical result" — which South Dakota courts say is the kind of reading judges are supposed to avoid (Ibrahim, Argus Leader v. Hagen).

On commission discretion: SDCL 31-12A-6 is unusually direct. If the requirements of chapter 31-12A are met — accurate survey and map, valid petition with 25% landowner signatures, all required content, twenty-day public examination period, municipality approval if applicable — then "the board shall issue an order declaring that the territory shall ... be an incorporated road district." "Shall" is mandatory under standard SD construction rules (Heine Farms, Preserve French Creek). The Commission's role is essentially ministerial: confirm the petition meets the statutory requirements, then order the district created. A vote of the affected landowners then has the final say. The county commission has no policy veto.

The opinion sides with petitioners on the second question (the commission cannot deny a compliant petition) but limits the rule on the first question (no overlapping districts means the petition was not compliant if it overlapped). The practical effect for Custer County: the denial was wrong as a process matter only if the proposed district did not overlap with an existing district. If it did overlap (as the State's Attorney's facts suggest), the denial was correct on the substance even if for arguably wrong reasons.

What this means for you

If you are a South Dakota county commissioner

Two reminders. First, your authority over road district petitions is not policy authority — it is procedural. You check the petition for statutory compliance. If it is compliant, you order the district created, and the landowners vote on whether to actually form the district. If the petition is non-compliant (overlapping territory, missing signatures, bad survey), you can decline to issue the order on those grounds, but document the deficiency precisely.

Second, watch for overlap. If a petition encloses land already in an existing road district, the petition is non-compliant under this opinion's reading. Petitioners can usually fix it by adjusting boundaries or by pursuing consolidation under SDCL 31-12A-29 instead.

If you are organizing a road district petition

Before circulating the petition:

• Get an accurate survey and map of your proposed boundaries (SDCL 31-12A-2).
• Verify no existing road district covers any part of the territory. County records or the county auditor's office can confirm.
• If your area overlaps an existing district and you want a different governance structure, look at consolidation under SDCL 31-12A-29 through -36, which lets two or more districts merge into one.
• Plan for the 25% landowner signature requirement (SDCL 31-12A-3), the twenty-day examination period (SDCL 31-12A-4), and (if any territory is in a city's subdivision jurisdiction) municipal approval (SDCL 31-12A-5).

If your petition meets all statutory requirements, the county commission must issue the order. If the commission balks, this opinion is the source to cite.

If you are a landowner inside (or being added to) a road district

Road districts can levy taxes and special assessments on land inside their boundaries (SDCL 31-12A-21). The AG opinion preserves your protection against being double-taxed: only one road district can cover your land at a time. If you receive notices that suggest two districts both claim authority, raise the question with your county auditor or state's attorney; under this opinion, the situation is statutorily unauthorized.

Your right to vote on the formation of a new district (SDCL 31-12A-6's reference to "with the assent of the voters") is preserved.

If you are a state's attorney advising a county

This opinion guides two pieces of advice:

1. Review every road district petition against the statutory checklist. The commission has no discretion if all boxes are checked, and has a clear basis to deny only if a box is unchecked.
2. If a petition does propose overlapping territory, the denial is on substantive non-compliance grounds, not commission preference. Document the overlap finding with reference to existing district records.

If you advocate for special district reform

The opinion is a useful artifact for arguing that South Dakota's special district framework currently makes consolidation easier than reorganization. If a community has a road district that is not working well (too small, ineffective, financially strained), the path forward under current law is consolidation with adjacent districts, not a fresh overlap. If you think the law should allow more flexible reorganization, this opinion is evidence of the current rigidity that legislative change would need to address.

Common questions

Q: What is a "road district" in South Dakota?
A: A political subdivision created under SDCL chapter 31-12A to build and maintain roads in an unincorporated area. Road districts have the power to levy property taxes and special assessments on land within their boundaries to fund their work.

Q: Why can't road districts overlap?
A: The chapter does not explicitly forbid it, but the AG reads the statutory scheme to forbid overlapping districts because: (a) each district has independent road-construction and taxing authority over its territory, (b) two districts in the same territory would produce double taxation and competing decisions, and (c) the consolidation framework in SDCL 31-12A-29 et seq. provides an alternative pathway when residents want different boundaries.

Q: What is the consolidation framework?
A: Under SDCL 31-12A-29, two or more existing road districts can form a single consolidated district covering their combined area. The consolidated district has the same powers as any other district. This is the statutory route for changing the geographic boundaries of road-district authority.

Q: What must a road district petition contain?
A: SDCL 31-12A-3 requires the proposed name, a statement of the need for road work, a description of the territory, and a request that the commission define boundaries and hold a referendum. SDCL 31-12A-2 requires an accurate survey and map. The petition must be signed by at least 25% of the landowners in the proposed district. SDCL 31-12A-4 requires a twenty-day public examination period. SDCL 31-12A-5 requires municipal approval if any territory is in a city's subdivision jurisdiction.

Q: Once the commission issues the order, what happens?
A: A referendum is held among the voters in the proposed territory (SDCL 31-12A-6's "with the assent of the voters"). The voters decide whether to actually form the district. Commission approval is procedural; voter approval is substantive.

Q: What's the practical difference between "shall" and "may" in this context?
A: "Shall" creates a mandatory duty. "May" creates discretion. SDCL 31-12A-6 uses "shall," so the commission has no choice if statutory requirements are met. South Dakota courts have repeatedly emphasized this distinction (Heine Farms, Preserve French Creek).

Q: Can the commission deny a petition for other reasons (lack of public need, financial concerns, opposition from existing district)?
A: No, not as a matter of commission authority. The voters in the affected territory will decide based on their own analysis. The commission's job is to confirm statutory compliance and pass the question to the voters.

Q: What if the existing district is willing to absorb the new territory by consolidation?
A: Then SDCL 31-12A-29 is the route, not a new overlapping district. Consolidation requires action by both existing districts and follows its own procedure, distinct from the new-district formation process.

Background and statutory framework

South Dakota's road district statutes (SDCL chapter 31-12A) exist to allow rural communities to organize for local road construction and maintenance. The districts are political subdivisions with taxation authority within their geographic territory. They are governance units between the county and individual landowners.

The framework is petition-driven. A group of landowners (at least 25%) signs a petition proposing the district's boundaries. The county commission verifies statutory compliance and orders a referendum. Voters in the affected territory decide whether the district forms. The use of "shall" in SDCL 31-12A-6 is deliberate: the legislature wanted the political decision in the hands of affected voters, not county commissioners.

The opinion's analysis on overlap leans on the canon against absurd or unreasonable results (Ibrahim, Argus Leader v. Hagen, State v. Wilson). When the statute is silent, the AG reads the whole chapter to find legislative intent, and the structure of the chapter (one district per territory, plus consolidation for boundary changes) does not accommodate overlapping authorities.

The analysis on commission discretion follows the standard South Dakota construction rule (In re Wintersteen Revocable Trust Agreement): when statutory language is unambiguous, the court declares its meaning rather than constructing around it. "Shall issue an order" in SDCL 31-12A-6 is unambiguous mandatory language.

The 2024 Preserve French Creek, Inc. v. County of Custer case is significant here. That case held that SDCL 7-18A-13's use of "shall" created a mandatory duty for the county to enact a proposed ordinance and present it to voters. The AG opinion is consistent with that holding and applies the same logic to SDCL 31-12A-6: county commissions execute statutory requirements; they do not exercise policy judgment when "shall" is the operative word.

Citations and references

Statutes:
- SDCL chapter 31-12A (road districts)
- Key provisions: SDCL 31-12A-1, -2, -3, -4, -5, -6, -12, -21, -29 through -36

Cases on statutory interpretation:
- Jucht v. Schulz, 2024 S.D. 46, 11 N.W.3d 32 (statutory context determinative)
- 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
- In re Wintersteen Revocable Trust Agreement, 2018 S.D. 12, 907 N.W.2d 785

Cases on "shall" as mandatory:
- Heine Farms v. Yankton County ex rel. County Commissioners, 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

Cases on absurd-result canon:
- 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

Source

• Landing page: https://atg.sd.gov/OurOffice/OfficialOpinions/opinions.aspx
• 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

MJJ/SRB/dd