HB 1094: Noem Guts Local Control of Conditional Use Permits

Last week, Governor Kristi Noem announced that she wants to take control of residential zoning away from municipal governments to somehow promote affordable housing the same way she took away county control of zoning last year to promote untrammeled development of factory feedlots. On Tuesday, the Committee on Local Government filed the Governor’s pro-business, anti-local-control zoning bill in the Legislative hopper.

House Bill 1094 goes further than the Governor’s stated goal of deregulating housing development. The bill appears to reduce the oversight municipal governments and residents may exercise over any kind of construction within their jurisdictions.

Current law refers to “conditional” uses, which include any use beyond the normal permitted uses of property set forth in zoning regulations. Local governments lay out their own criteria for conditional use within each zoning district; builders who want to build that extra-large porch or garage or sunroom or grocery drive-up bay go through a special hearing process to demonstrate that they meet those criteria. They also have to notify neighbors, who may contest such conditional uses. City councils may also require larger-than-majority votes to approve such exceptions to normal zoned uses.

House Bill 1094 follows the template of Governor Noem’s county-zoning-deregulation bill from 2020 (2020 Senate Bill 157) in taking away the authority local governments have to set voting thresholds for approval of conditional uses. Governor Noem’s HB 1094 (Section 2 and Section 7) would force all local governments and borads of adjustment to accept conditional use requests on a simple majority vote. Section 4 defines any land use that meets criteria written in any ordinance as a “special permitted use,” blocks municipalities from applying any additional requirements for such special uses, and precludes public hearings about those special uses. Section 3 requires municipalities to permit those special uses, meaning municipalities cannot act on protests from adjoining landowners.

Section 7 reduces the ability of citizens to protest conditional use permits by requiring them to file appeals to boards of adjustment within 21 days of board action. Section 1 also narrows the definition of “aggrieved” to the same strict standards adopted in her pro-CAFO county zoning revamp: appellants must demonstrate a concrete and particularized injury that is actual or imminent, establish the causal connection between that injury and the subject of the complaint, show that affirmation of the appeal is likely to redress the injury, and show that the injury is “unique or different from those injuries suffered by the public in general.” Neighbors thus can’t contend that someone’s monster house or biker bar will generally erode the quality of life and property values across the city; they need to provide particular proof that they themselves will suffer immediate losses to do the direct action of the permit holder.

If citizens can’t get their point across to their HB 1094-shackled local governments, they face further limitations on the exercise of their right to appeal in court. HB 1094 Section 11 slaps on municipal appellants the same 60-day window that Noem’s county CAFO favors impsoed last year on petitions to circuit court to block conditional use permits. Section 11 also forces onto petitioners the costs of producing a transcript of the proceedings of the board that approved the permit they wish to contest. Section 13 requires the court to rush such appeal proceedings to a decision within 30 days.

And just for a kick, at the end of HB 1094, Section 14 tolls any county ordinance that sets time limits on starting or finishing work allowed under a special permit and gives any builder with a special permitted use, conditional use, or variance two years after the final resolution of any appeal to do the job. It also lets the builder proceed with work even while an appeal is pending. (Team Noem might want to check its wording here: they appear to have copied and pasted the language from 2020 SB 157 directly into 2021 HB 1094, complete with reference to “county” zoning ordinance. I’m unclear on whether there is a legal need to rewrite this section on county ordinances into the municipal zoning chapter or if the drafters meant to refer here to municipal ordinances that should be tolled to grant all municipal builders two years after final approval of their permits to do their work.)

Nothing in House Bill 1094 reflects the Governor’s professed focus on creating affordable housing for young families. Like last year’s bill taking away county control over CAFO plotting, HB 1094 simply strips away local governments’ and local residents ability to establish and follow their comprehensive plans for sustainable, livable development, residential, commercial, or industrial.

Everything that was wrong with Noem’s pro-CAFO county crusher last year is wrong with Noem’s defanging of municipal regulation of zoning this year. And as we saw from the Republican Legislature last year, we can’t count on Republicans to defend local control. We can only hope the Municipal League will lobby hard against this grave intrusion on their members’ local authority.