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].