Last Friday, Governor Noem announced upcoming legislation for “streamlining” the Conditional Use Permit (CUP) process on the county level. The focus of discussion on the bill (which occurred at the Rapid City Stock Show) was around permitting for Concentrated Animal Feeding Operations (CAFOs) and the occasionally contentious process when members of the public–most often those who are directly affected–voice their opposition.
While the actual language of the bill has not yet been released, it’s important to understand that the CUP process is used for all kinds of large-scale developments in rural areas, including CAFOs, but also processing plants, industrial scale wind developments, workforce camps (commonly referred to as man camps), and mining.
From South Dakota Codified Law (SDCL) 11-2-17.4
“Conditional use defined. A conditional use is any use that, owing to certain special characteristics attendant to its operation, may be permitted in a zoning district subject to the evaluation and approval by the approving authority specified in § 11-2-17.3. A conditional use is subject to requirements that are different from the requirements imposed for any use permitted by right in the zoning district.”
In their zoning ordinances, many counties more specifically define a conditional use as, “…a use that would not be appropriate generally or without restriction throughout the zoning division or district, but which, if controlled as to number, area, location, or relation to the neighborhood, would promote the public health, safety, welfare, morals, order, comfort, convenience, appearance, prosperity, or general welfare.” (Grant County Zoning Ordinance Section 228) Emphasis ours.
In reviewing Governor Noem’s “Explainer” document on the proposed legislation (again, final language has not been released as of this writing), we see several ways in which this “streamlining” is designed to cut citizens out of the process and to undermine county boards’ authority and ability to protect the public health, safety, and welfare.
Here are a few specific examples, based on language from the “Section-by-Section Analysis” in the explanatory document (our analysis in italics):
- “Section 2: Requires conditional use permit votes to be a majority vote of the members present and voting.” –Currently, votes on CUPs are typically a super-majority. Legislation in recent years, sponsored by CAFO Consultant Mark Mickelson, allowed for a simple majority vote, but did not mandate it. Many counties have decided against adopting the simple majority decision in order to have a stronger decision on contentious projects.
- “Section 3: Further clarifies what a special permitted use is by giving counties more direction on how the process should work. If a project meets the required criteria (checks the boxes) it can be granted a certification through a ministerial act or upon an affirmative vote of the board of adjustment.” –This process means an non-elected official (administrator) could make decisions on multi-million dollar projects with virtually no oversight or analysis, and preempts the county board’s requirement to protect the public health, safety, and welfare.
- “Section 4: Further clarifies that in the special permitted use process there is no public notice or public hearing requirements through the board of adjustment. The board of adjustment can approve or disapprove the certification, while only considering if the specified special use criteria are met.” –Cuts the public entirely out of the process. Projects could break ground with no notice to affected neighbors. Blocks potentially crucial additional information and input on the project.
- “Section 5: Prevents changes on adjacent properties – made after an application for a conditional use permit is submitted – from impacting the permit’s compliance with zoning ordinances.” –Creates a scenario where adjacent landowners may be blocked from using their own land as they see fit.
- “Section 6 requires conditional use permit votes to be a majority vote of the members present and voting.” –Again, this is now optional, and most counties have decided against that simple majority option. Additionally, the state mandating this may be unconstitutional, as it interferes with counties regulating their own affairs.
- “Section 12: Encourages the court to expedite their determination on the matter by requesting the court (within thirty days of filing the board of adjustment’s response) hold a hearing on the matter to determine the merits of the case. This section is softened by including “or reasonably practicable” to allow the courts some additional time, if necessary.” –As recently as this legislative session, the judiciary has balked at the executive branch attempting to direct how they determine order of caseload. This section is unlikely to be viewed favorably by the courts.
- “Section 13: Allows the court to award attorney’s fees, costs of the action, and compensatory damages against appellants that do not prevail with an appeal. This is a deterrent against frivolous appeals.” –This is a direct threat to any aggrieved person who may wish to appeal. If they lose, they could stand to not only cover their own attorney fees, but also fees, costs, and “damages” of the party they contend will harm them. “Frivolous appeals” are exceedingly rare in these cases; this section is about threatening citizens with financial ruin should they attempt to defend their farms, families, land, and water.
ALL South Dakotans should be extremely concerned by this proposed legislation. It is a direct threat to their ability to participate in their own democracy and the decisions that most directly impact their daily lives. Further, county decision-makers should consider their duty to protect the health, safety, and welfare of their citizens and communities, and strongly resist this attempt to gut the process by which they do so.