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Guest Column: Noem’s Municipal Dezoning Law Poorly Written, Unconstitutional

House Bill 1094, Governor Kristi Noem’s attempt to strip from cities and towns and their residents the same zoning authority that she stole from counties last year, has passed the House and awaits attention from Senate Local Government.

Eager reader Yvonne from Rapid City submits this open letter to South Dakota legislators and the rest of us to argue that HB 1094 is poorly written and unconstitutional:

TO:  2021 South Dakota Senators and Representatives

RE:  HB 1094

We submit our comments in protest of HB 1094 for passage into law for the following reasons:

  • We ask that you vote no and send this bill, in its entirety to the 41st day.  Every “new” section proposed either violates procedural due process and/or is an unjustified or mistaken deprivation of life, liberty and property.   This bill is UNCONSTITUTIONAL AND IS AGAINST PUBLIC POLICY. 
  • One balancing standard established in settled law is: first, the private interest that will be affected and deprived of by the official action; second, the risk of erroneous deprivation of such interest through the procedures (or when no procedure is used or allowed); and finally, the other party’s interest measured on an equal scale with one in opposition. 
  • Moreover, the language proposed within every new section is poorly drafted and conflicts with existing sections enacted into law under Chapter 11-4 which relate to the “conditional use” permit process within this Chapter.
  • “Conditional use” is defined within § 11-4-4.2. Within this bill—HB 1094, the term: “special use” is not defined within Chapter 11-4; nor, within §11-6.   
  • When “new section(s)” are proposed such as these relating, specifically, to “special use” in the attempt to differentiate it from the existing requisites of a “conditional use”, the deviation from established procedural law within 11-4 should give a definition to justify why this separate type of “use” should not be subject to § 11-4-2 and deprive the public of its constitutional right to challenge the process. 
  • Proposed section 11-4-4.5 denies the public the right to a “public hearing or other requirement for review and approval”.  
  • §11-4-4.5, as written, is unconstitutional as it violates procedural due process; and, opens the door to many lawsuits that will, definitely, challenge the procedural constitutionality of this proposed law—and win.  Legal precedence is established relating to the public’s constitutional right to be heard; especially on matters that personally affect their life, liberty and property, which the issuance of a special use to an applicant does.  
  • §11-4-4.3 requires, only, that a “zoning ordinance adopted pursuant to this chapter may also establish a process for certification of uses upon meeting specified criteria for the use.”  Where the language within this bill fails to define “special use”, here, what stops a municipality from not developing or adopting, much less implementing a zoning ordinance with regard to a process and criteria for certification?  Language proposed, here, leaves the door wide open with the term “may”.  
  • §11-4-4.6 adds further fuel to the fire regarding the unconstitutionality this legislation, as a whole, represents and seeks to accomplish. 
  • Section 11-4-4.3 through 4.6 and, §11-4-25.2 and 11-4-29.1 will be open game to a self serving municipality to bypass and/or the usurping of Federal EPA regulations where a special use permit is approved when environmental issues involving the “special use” is an issue.   Federal laws encompass the Clean Water Act—“CWA”, the Resource Conversation and Recovery Act—“RCRA”; and, the Clean Air Act to name just a few.  
  • The very core of due process requirements is notice and a hearing before an impartial tribunal; and, the opportunity for confrontation and to present argument in opposition thereof.  
  • Procedural administrative and executive proceedings are not judicial, per se; and, not a requisite to due process.  However, due process requires the procedures, where laws are applied, and which requires that the procedures must be evenhanded so that individuals are not subjected to the arbitrary exercise of government power.  A balancing test is a must in due process and is meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property.  Hence, the required elements of procedural due process are those that minimize substantively unfair or mistaken deprivations which allow persons to contest the basis upon which a local municipality proposes to deprive them of protected interests.  This bill doesn’t just minimize procedural due process; it eliminates it entirely. (§11-4-4.5 and 11-4-4.6). 
  • Long term legal problems are going to mount if this bill is enacted because some form of hearing is required—not denied as that which is proposed here, before an individual can be deprived of a property or liberty interest.  The purpose of this requirement is not only to ensure abstract fair play to the public or a particular individual suffering personal impact.  Its purpose, more particularly, is to protect his use and possession of property from arbitrary encroachment.  Thus, the notice and the opportunity to be heard must be granted at a meaningful time and in a meaningful manner.  Proposed § 11-4-4.5 denies the right to any notice, public hearing or any other right for review and approval in its entirety. 
  • The language within Section 11-4-4.5 is confusing.  The terminology within the last sentence: “[u]pon adoption of certification provisions, the land use is a special permitted use subject to enforcement in the same manner as a permitted use”.  This terminology opens the door to “unenforceability” of a “permitted use”.  What certified permitted use is that?  If the municipality fails (“may” as is §11-4-4.3 allows) to implement a criteria and to adopt zoning ordinances for certification relating to a “special use”, then there is no enforceability because there is no written oversight written into any ordinances.  (§11-4-4.3 allows that the municipality “may” establish a process for certification).  

We urge a vote of “NO” regarding this proposed legislation, in its entirety.  This is the type of legislation that has the trickling effect leading to tyranny.  

Thank you for the time to review our position relating to this bill [links added; DFP reader submission, received 2021.02.25]. 

 

15 Comments

  1. John 2021-02-27

    Thank you Yvonne and Cory.
    It’s likely that few of the legislators will understand the well crafted arguments.
    Second, it should be a matter of weeks until an attorney sues to have noem’s previous abomination that restricted county zoning, declared unconstitutional.

  2. 96Tears 2021-02-27

    COVID Kristi is, at least, consistent. She works hard at removing the simplest protections against the pandemic and promotes the worst public response to a highly contagious, deadly disease. Now she wants basic protections of public safety removed, stripping our communities of their most basic protections against the worst, greediest and most reckless developers. Her vision is a cesspool for us, and luxury for herself at our expense. What a swell gal!

  3. jake 2021-02-27

    She’s “bought and paid for” by money, greed and power and the ‘love’ of all three!

    So fitting, for a state GOP leader of today, or is it really QOP”?

  4. bearcreekbat 2021-02-27

    I must concede that I don’t understand the “well-crafted arguments” in the letter. I couldn’t identify a protected property interest that would require notice and a hearing before denying a governmental body and/or its citizens “zoning authority.” This legislative proposal seems more like a type of legislative policy choice in which there is no particular due process right to individual notice or hearing beyond that provided for any other legislative proposal. And the fact that Yvonne has notice of this proposal and has the opportunity to write a letter opposing it seems to satisfy any theoretical due process right to notice and an opportunity to be heard. What am I missing here?

    In some specific cases there is a due process right to notice and hearing before the government can use zoning to restrict the use of one’s property, as zoning decisions restricting property use can constitute a taking of a property interest in specific cases. But unless I am missing something, that doesn’t seem to be what this proposed legislation does. It seems to do the opposite, namely, restrict the ability of a government to use zoning to limit the use of private property.

    This may well be a particularly bad policy choice by the governor or legislature, as bad policy choices seem to be an unfortunate but consistent pattern of the State’s current conspiracy -minded Trumpist one party rule, but the “due process” argument seems a stretch. Help me out here – what is the protected property interest?

  5. grudznick 2021-02-27

    Let us be clear here, the law bill numbered 1094 is nowhere near as unconstitutional or sloppily written as the measure initiated as #21 or the Amendment lettered “A”. 1094, in relation, is a great and well written law bill. You cannot be against 1094 and be for #21 or the “A” or you are a hypocrite.

  6. Yvonne 2021-02-27

    What’s not to understand. It’s pretty clear and simple minded. Just with the sections proposed as stated. In two of the new sections this language clearly precludes a property owner ir the public (a party of interest) notice when an entity, neighbor, or even the municipality itself (albeit without any criteria put in place to guide the decision makers if the municipality “may” adopt criteria) wants to put any operation next to them regardless whether the zoning ordinances mandate against it or not. One could call anything a “special purpose. Special purpose for who? That’s what the conditional use process is for. Both are one and if the same. Notice there is NO definition of what justifies a “special use” within this bill.
    Its ones “interest” that is constitutionally protected. Read the entire bill and my references to it again and research “procedural due process” yourself if you deem the bill is well written and constitutional. The bill also precludes any review or appeal process once the “special use” has been approved and construction started. REALLY!
    Too late adjoining property owner and the public. You didnt have to be notified, according to this law and nothing you can do about it now. THIS legislation deprive you of procedural due process notce, here, what’s next? … We’re going to take your property next. So much for your interest, we’re going to literally take it. Tyranny stops at no bounds if you let it. I stand by the premise of opposition to this bad bill for all or sake.

  7. bearcreekbat 2021-02-27

    Yvonne, I still don’t understand how you get to a violation of due process and I have exhaustively researched what the right of due process entails. As I read your comment, and please correct if I am wrong or have misunderstood, it seems to object to the idea that the bill does not give a neighboring property owner (or the public) any notice or a hearing to raise objections before the government permits, or ignores, any changes that another person makes, or proposes to make, in the use of adjoining private property.

    If that is your objection, I have yet to find any cases that say such a procedure violates the due process rights of the objecting neighbor. Perhaps you can direct me to such a case or authority?

    If a statute required the government to give the objecting person notice and an opportunity to be heard, then that person would have a protectable right. But there is nothing in the Constitution that I am aware of that would require the government to enact such a statute or prohibit the repeal of such a statute. And without a statute or constitutional provision to identify the protected right, there is no due process protection that I am aware of.

    I haven’t read this bill and you could be correct that it violates the Constitution. I simply did not understand your letter to identify any protected liberty or property interest that the statute takes way without due process. Your follow up comment likewise didn’t appear to identify a property or liberty interest protected by due process, since without a specific existing statutory or constituitonal provision identifying this as a protected interest, as far as I have been able to find, a private property owner has no say over what another private person does with adjoining property, even if that new use adversely affects the value of surrounding private property.

    Due process only protects a neighbor from governmental conduct, not private conduct unless there is an some special statute protecting neighbors. And what a private individual does with his real estate is not government conduct.

  8. Yvonne 2021-02-27

    Bearcreekbat
    • Let’s see, if you haven’t read the bill; just my stance, how can you understand the basis of your own arguments? I will try to be brief so as not to take up too much space on Cory’s fantastic blog, here. To start with, the legal foundation of one’s constitution rights to due process, as a whole is within the US Constitution which guarantees every citizen the right to due process, in civil and in criminal matters. The Bill of Rights has 10 Amendments to the Constitution, which guarantees civil rights and liberties to the individual—like freedom of speech, press, and religion. It sets rules for due process of law and reserves all powers not delegated to the Federal Government to the people or the States.
    • The required elements of due process are those that minimize substantively unfair or mistaken or unjustified deprivation of life, liberty, or property.
    Hence, “[p]rocedural due process rules are shaped by the risk of error inherent in the truth-finding process as applied to the generality of cases.” Carey v. Piphus, 247, 258 (1978) citing Mathews v. Eldridge, 424 U.S. 319, 344 (1976)(Emphasis applied).
    Further, …”[t]he Court has also stressed the dignitary importance of procedural rights, the worth of being able to defend one ‘s interests even if one cannot change the result.” Carey, Id., at 266-267(1978)(citations omitted)(Emphasis applied).
    • This bill takes away individuals’ or the publics’ “right” to be notified; the right to be heard/review; and, the right to appeal a decision exercised by a governmental tribunal; i.e., municipality. Forget about the applicant; it is the governments basis upon which the governments’ assertion of deprivation to the public.

    • This bill gives full authority to a municipality to decide the issuance or the denial of a “special permit” application without dealing with a process of confrontation, that their decision be based upon the record; or, most importantly, established criteria they “may” or may not implement to support its basis for its decision.

    • Proposed Section 11-4-4.5, moreover, precludes anyone of notice for public hearing or a hearing so that they may be “heard” and for “review and approval of conditional uses. (Confusing, here, is this section identifies the use as a “conditional use” which, within this same section, states this “ “ permit is not subject to the requirements set forth within §11-4-4.2. Yet, as just stated, this section refers to the preclusion of such “special permitted use” as a “conditional use”… hence, poorly drafted language contradictory in and of itself to say the least.

    • Finally, new Section 11-4-4.3 language provides that, “a zoning ordinance adopted pursuant to this chapter (11-4) “may” also establish a process for certification of uses upon meeting specified criteria of “the use”. What use is this? Certification can’t be associated with a “conditional use” process because proposed Section 11-4-4.5, specifically, precludes that a “special use” applicant is not subject to the requirements set forth in §11-4-4.2. This bill allows the “government” (by its conduct) to make a decision with regard to a “special use” permit without any criteria (not required, here) implemented to base its decision; a decision that cannot be reviewed by an appellate court( review) because the Court cannot review the basis of a decision to grant or deny a “special permit” because no criteria to guide the guide the Court was implemented. If one thinks that a self serving municipality, controlled by politics and/or big money, is going to put the publics’ interest, first, then one is more naïve than one can suspect. And so, this bill does just what it is designed to do—deprive the public the right to notice of that which the government knows the public would oppose. If the public has no notice until after the fact when construction commences relating to the applicants’ “special use” becomes noticeably started, the opportunity to protest is surpassed based upon the language within this bill.

    • THE CORE TO PROCEDURAL DUE PROCESS, then, is “notice” and the “opportunity” to a hearing before an impartial tribunal whether the tribunals’ decision, in the end, is satisfactory to an opponent or not. The US Constitution and the Bill of Rights establishes this right to notice and process. If you want legal authority beyond that, in specificity, relating to the particular language within this bill; the cases will come if this bill is enacted and the question will have to be answered whether this bill is constitutional or not ! The only ones, held within South Dakota jurisdiction are those involving “conditional Use” permits. Due process notice and the right to be heard in those cases are required. SDCL 11-4 and local ordinances support this legal requirement. I would take my chances this bill, if enacted, will not sustain constitutional viability in law or in fact. Like the old saying, “build it” and they will come…in this instance, cases that is !

  9. bearcreekbat 2021-02-27

    Yvonne, thanks for that analysis. The case law you cite is consistent with what I understood due process to require. And now I think I understand your objection:

    This bill gives full authority to a municipality to decide the issuance or the denial of a “special permit” application without dealing with a process of confrontation, that their decision be based upon the record; or, most importantly, established criteria they “may” or may not implement to support its basis for its decision.

    I agree that someone applying for a “special permit” has a due process right to notice, an opportunity to be heard, a right of confrontation, etc. I misunderstood and thought you meant that right extended to someone opposing the application. Thanks for clarifying.

  10. Richard Schriever 2021-02-27

    >y brief take on Yvonne’s argument. This bill adds a “Use” category to local zoning ordinances that is – essentially – whatever the municipality wants it to be. Currently, zoning uses are defined in the codes, including normally permitted (no hearing required), conditional (hearing required and conditions added). Conditional uses are uses that come with “conditions” attached – I.E., yes you can do this thing on that property IF and only if, you also do this thing to mitigate its impact on neighboring properties. Most frequently applied example is – yes, you can have a commercial day-care facility at that residentially zoned property IF you erect a 5 foot fence around the yard/play area, AND you restrict the number of vehicles stopping there, AND you provide proof of state licensure. BUT, you can only have a maximum of 12 children under your care. Otherwise, this business needs to take place in a commercially zoned location (which has those conditions and more as a normal part of being a regular permitted use.)

    The new “special use” would have no hearings and no “criteria” – or limits/conditions (sure – you van have 50 kids at that house and no you don’t need a fence, or a license) on the same residential property (above) – at the pure whim and whimsy of the municipality – or not – depending on “who you know” type criteria.

    Hey, my buddy George is a really food mechanic and wants to do auto repair and rebuilding work at his house. He wants to build a 75 X 90 shed in his back yard and buy wrecked cars and fix them and sell them. Let’s give him a “special use” permit. No need to tell the neighbors.

  11. Yvonne 2021-02-27

    The person applying doesn’t need notice of the permit application because he/she’s the one applying. The right to notice of this type of permit application extends to the public to give the public the opportunity to exercise its right to object and the right to be heard regarding the special use permit application. A special permit is the same as a conditional use permit…a permit which requires procedural due process and notice as reflected within Chapter 11-4. This is a bad bill which seeks to circumvent existing law–sdcl 11-4 with the term, “special” use; then, mixing things up with language within chapter 11-4. Semantics without substance.

  12. Yvonne 2021-02-27

    Right on, Richard you got it. These c.u.ps, at first glance, requires notice to surrounding property owners. No one objects, no hearing requested, cup issued. Municipality wants to construct and operate a small chicken/pig farm operation fir whatever reason they desire. No criteria developed, no certification process implemented, and no notice to surrounding property owners or the public. Let’s give ourselves a special use permit cause SDCL11-4-4.5 et al allows us that sole authority; and let’s add we have “home rule”.

  13. John 2021-02-28

    Inadequate, wild west zoning led to . . . Meade County at first allowing lighted billboards along, adjacent to Black Hills National Cemetery, a housing development over an abandoned, unreclaimed gypsum mine, an I-90 corridor that is an uninviting tangle of clutter (certainly the SD tourism department is proud of that Meade County I-90 viewshed) , , , .

    Many people cannot have nice things; and sometimes those who have nice things want to screw it up for the rest of us.
    Bring on the municipal chickens, roosters, goats, and throw in a cow for good measure!
    Homeowner associations sometimes deserve a bad rap. Yet at the end of the day I’ll take HOA rules before the vastitudes of city and county commissioners swayed by ‘developers’ (bribes, legal and otherwise) and ‘economic development’ sirens.

    Thanks again, Yvonne. Let’s hope the Municipal League gets fired up.

  14. cibvet 2021-02-28

    Noen says we are open for business. No doubt this bill is aimed to promote CAFO operations without regulation. If it passes, I suggest one be installed next door to her “ranch”.

  15. Richard Schriever 2021-02-28

    Reminds me of a “for sale” sign I saw up in ND during the oil boom. “For Sale – 60.5 acres. Will Zone to Suit”. You want to see what kind of “development” that approach to zoning looks like – take a drive up to anywhere along the road between Watford City and Tioga. It’s about a 4 hour drive. Williston is half-way in between.

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