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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.


  1. Norma Wilson 2021-01-28 15:41

    She has the power to do a lot more damage, and she will continue to do everything she can think of to empower and enrich herself. She has no regard for the environment or the people’s health. She has no idea about how to govern in a democracy and she does not want to learn to do that. She wants to rule. We must vote her out.

  2. Jake 2021-01-28 16:04

    Oh where, Oh where, did the small government, local control GOP go?! Is there a GOP left? Seems they’ve been so busy blathering about “those Leftist Democrats’ and ‘Socialist loving Democrats’ and ad nauseum to infinity that they haven’t paid any attention to the snakes and grifters of which their own party is so made up of. This party in power in Pierre is blinded by their power, money and greed and love of all three.
    What say you Grudz?
    Johnny Boy? Dusty and Mike ? Right now, the Federal Repubs of this state are more inclined and interested in making certain that the ex-potus (who doesn’t deserve being named) isn’t faced with a court of open-minded jurors interested in finding/seeing the truth.
    Our governor killed a fellow Republican bill in Pierre yesterday asking for open gov’t on her part, in disclosing her security (Hiway Patrol) costs (bodyguards) while she campaigned for the Orange Pumpkin last summer/fall.
    This HB 1094 is no more than another power grab of Pierre over local municipal control.

  3. Robert Kolbe 2021-01-28 19:15

    All countries should pass an ordinance
    Stating all zoning issues must pass a hearing of a committee made up of
    The Governor
    The Sec of Agriculture
    Two members of the State Environmental Committee
    And the members of the Public Utilities

    Appeal to be heard by the S D Supreme Court

  4. mike Livingston 2021-01-28 19:31

    kris i think your late for a date at mara logo

  5. Caleb 2021-01-28 19:53

    Considering section 5, if this becomes law, maybe Brookings citizens will get their chickens after all.

  6. John 2021-01-28 21:51

    In addition to the Municipal League, who should oppose this; the realtors, bankers, and county commissioners should oppose noem’s Pierre power grab for its threat to reduce property values, in addition to reducing standards of living.

  7. Darrell Solberg 2021-01-29 13:38

    It is really sad that she lied in the campaign against Billie Sutton to get elected! Now she is following her mentor by doubling down on her continual lies!! She truly is showing the meaning of ‘incompetence’.

  8. Cathy 2021-01-30 03:05

    I read through our local city zoning ordinance, and the only way Noem’s bill would increase housing is by allowing trailer parks anywhere and everywhere without public comment. Industrial zones stand to gain the most by getting rid of the permitting process and public hearings. ETJ zones could be especially buggered. Although, if certain accessory buildings become permitted uses without a public hearing and no questions about the use of that building, it would be easier to site a cannabis grow facility within the city limits. Yee-hah!

  9. Yvonne 2021-02-12 02:14

    LRC is not doing its jo. as usual. Any bill proposed into law that violates due process notice and right to a hearing and appeal is unconstitutional…whether it’s for a “special use permit” or “conditional use permit”. Semantics-and anyone(property owner) that is affected or harmed by such draconian legislation will prevail on that legal question first hand. It appears the Governor is steadfast in pushing the agenda so as to allow big ag operations to move in wherever they please and the adjoining property owners cannot protest. Unconstitutional on many fronts and you think the fight over the keystone pipeline is over. County authorit still has control over what, also, can be permitted whether within joint municipal districts or not…albeit whether a “special”, “nonconfirming” or “conditional use”. Gonna try to rewrite law there as well? Fine line within the definition of each of those categorical uses. Tired of hypocrit politicians.

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