Guest Column: SB 157 Cripples South Dakota’s Proud Tradition of Local Control

Gregory-area rancher Nancy Johnson Wirsing wrote last month about the apparent journalistic tilt toward pro-CAFO corporate propaganda. This month she writes about the hazards of Governor Kristi Noem’s latest factory farm initiative, Senate Bill 157, which comes before Senate State Affairs this morning at 10:00 a.m.:

South Dakota Senate Bill 157 (SB 157), currently being considered by lawmakers at Pierre, is aimed at easing the entry into the state’s rural counties of such controversial businesses as Concentrated Animal Feeding Operations (CAFOs). SB 157 significantly undermines South Dakota’s long-standing tradition of democratic local control. It is designed to cripple the capacity of rural citizens to participate effectively in the county decision-making process to protect their socio-economic, health, and environmental interests. SB 157 undermines political rights in at least three significant ways.

First, SB 157 cuts local citizens out of the permit process. Section 3 allows counties to establish an unprecedented special permitted use process. In this process, a conditional use applicant, let’s say a CAFO, that demonstrates that it has met all the permit requirements – in other words, that it has checked off all the required boxes – will be approved without being subject to any public hearing or other review requirements. This proposed certification process does not replace a permitting process prescribed by the zoning ordinance that many counties already have in place, a process that includes citizen participation and that has built into it consideration of citizen and community interests. Rather, this proposed special permitted use process serves as a greatly simplified alternative permitting process that county boards can select if they wish to bypass a county zoning ordinance-prescribed process.

This proposed special permitted use process strikes a crushing blow to citizen rights in a variety of ways.

• The requirements that are to be listed in the check-off boxes are not specified – it is thus very likely that local citizen-protective provisions won’t be included. Requirements are easily limited to purely technical matters well-suited to check-off forms and which permit applicants can easily accomplish. Almost certain to be left off the forms, for instance, would be such citizen-protective matters as protection against loss of property values and the undermining of the quality of life caused by CAFO odor. However, the main difficulty with SB 157’s check-off method is not that check-off boxes protective of citizen and community interests can’t easily be included, because many certainly can. For example, there could be boxes for CAFO applicants to agree that they will regularly monitor the water quality of private wells and waterways within a particular distance; that they will pay the pollution clean-up cost of monitored water sources found to be polluted; or that they will pay a yearly road maintenance fee to the county. Clearly, including citizen-protective requirements in check-off boxes is certainly possible. The problem is that including citizen-protective provisions is a matter of intent, and the clear intent of SB 157’s proposed special permitted use process is to expedite county acceptance of controversial businesses by sidestepping citizen participation, which is viewed as an impediment to the speedy issuance of permits.
• Section 4 expressly eliminates public hearings. As a result, neighbors directly affected by a certified project would have no way of learning about the project, let alone have a chance to express their opposition to it to the county representative. This provision amplifies the clear intent of SB 157 to make citizen interests irrelevant to the permitting process.
• County commissioners vote to certify applicants exclusively on whether or not a project has or has not fulfilled all check-off box requirements. Thus, if the boxes an applicant is required to check do not cover citizen and community interests, these interests are excluded from consideration. Along with cutting out citizen participation, the effect of SB 157’s special permitted use process is to undercut the capacity of county commissions to protect the interests of the communities and citizens they represent.
• Section 3 makes it easy for business projects to be granted certification by providing that project approval can be certified either by a simple majority vote of a county governing body or by a non-elected county administrator.

A second significant way in which SB 157 undermines the protection of citizen rights and interests is that this proposed bill would allow county officials (bypassing citizens) to change county zoning ordinance provisions. On the basis of some very subjective criteria – such as “does not cause unnecessary hardship” and “so that the spirit of the ordinance is observed and substantial justice is done”— Section 6 of SB 157 allows an administrative officer or board of adjustment to alter a county zoning ordinance provision and, very importantly, to do so on the basis of a simple majority vote by the board of adjustment. How can citizens hold county officials accountable to a law that is easily amendable according to the prevailing interests of its governing officials? It should be obvious that the protection of citizen and local community interests mandates that any proposed changes to a zoning ordinance be subject to a voter-accountable amendment procedure.

A third significant way in which SB 157 undermines citizen and community political rights and interests is that it includes provisions that make it extremely difficult for citizens to successfully appeal zoning decisions made by county officials.

• While citizens can appeal decisions, Section 9 mandates that a 2/3 vote (a super majority vote) of the members of the board of adjustment is required to reverse any order, requirement, decision, or determination of either an administrative official or commission. This 2/3 vote requirement significantly decreases the chances that pro-business decisions can be successfully challenged by aggrieved citizens.
• Section 1 defines “person aggrieved” very narrowly. This provision effectively limits standing (locus standi, in law a party’s ability to demonstrate connection to and harm from the law or action to justify the party’s participation in the case) to those persons directly involved. This means that despite the well-established fact that businesses such as CAFOs have some predictably damaging impacts (they may, for example, damage the property value and threaten the health of neighbors as well as commonly pollute community water sources). SB 157 makes it very difficult for aggrieved citizens and communities to enlist the help of organizations that specialize in protecting the civil rights of individual citizens and in combating environmental and health problems. SB 157 would prevent these types of organizations from being given standing in a county or court hearing. This proposed legislation instead forces individuals and communities to stand on their own (typically very limited) resources while they are up against corporate interests with plenty of resources, including their own lawyers.
• Section 13 allows a court to award attorney’s fees, costs of the action, and even compensatory damages against appellants that do not prevail when making an appeal. Individual citizens already assume a terrific financial burden when they appeal a county administrative or board of adjustment decision in a court. Paying all court costs would add enormously to this burden should the appellant fail in the appeal. This punitive additional financial burden would clearly discourage citizens from making appeals and, as a result, serves to undermine the constitutional right of citizens to appeal decisions harmful to them.

Proposed SB 157 is strongly supportive of South Dakota’s wide open-door economic development policy – a policy hell-bent on expanding the entry of big commercial enterprises into rural communities as a means of expanding the state’s tax revenues – and, at the same time, of its determinedly closed-door policy with respect to the political rights of the citizens of rural communities. This policy aims to shut down citizen participation in the conditional use permit process as a means of expediting and securing the entry of controversy-ridden businesses into their communities. This action is justified by state governing authorities on the false grounds that any and all commercial enterprises, no matter how noxious and offensive, are bound to contribute to the welfare of rural communities. SB 157 must be seen as a companion to Governor Kristi Noem’s 2019 tax-rebate financial incentive scheme that aims to expand CAFOs into the South Dakota countryside by using tax revenues to generously reward counties willing to accept CAFOs. This is a project which, like SB 157, aims to sidestep citizen participation, in this case by bribing county officials to overlook the dark side of CAFOs.