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County Officials have the authority and the responsibility to protect their citizens, and the health, welfare, property values, and existing uses within their communities.

Often, we hear county elected and appointed officials express the belief that they’re required to approve all permits & variance applications that meet the basic criteria laid out in their ordinance.

That is False.

The Conditional Use Permit and Variance application processes exist so that county officials can carefully weigh the pros and cons of the issue and make decisions based on a number of factors, including the promotion of public health, safety, welfare, morals, order, convenience, appearance, and prosperity.

Denial of a permit or variance based on any of these factors (which are generally listed within the county’s zoning ordinance and/or comprehensive plan) is legally sound and virtually bulletproof in a court of law.

Read, Understand, and Utilize:

Listen to residents about their concerns. They are relying on you to protect their quality of life, livelihoods, and property values.

Additionally, if your county is experiencing a larger-than-normal volume of any kind of development, permitted or not, you may wish to institute Temporary Zoning Controls in order to pause that growth and study the issue more thoroughly and consider appropriate controls.

Currently, we are seeing an explosion in the building of 2400-head hog barns (CAFOs, or Confined Animal Feeding Operations) in some counties of the state–particularly those counties which do not, at this time, require permits for facilities of this size. Temporary zoning controls, coupled with the required study and recommendations process, may offer a remedy for counties concerned about the aggregate impacts of multiple facilities.

Rights-of-Way and Manure Pipes in Ditches

In South Dakota, “Every statutory section-line highway shall be sixty-six feet wide and shall be taken equally from each side of the section line” (SDCL 31-18-2). Rural landowners whose properties abut county or township roads typically own and pay taxes to the center of these roads, and are required to maintain the right-of-way (ditches) and prevent obstructions therein.

The right-of-way along these roads is reserved for the use of public utilities, but is considered private property that is owned and maintained by the landowner. CAFO proponents have sought to secure “public utility” status for their force main manure disposal pipes, but currently there is no legal standing to allow these manure pipes to cross private property (in the right-of-way or elsewhere) without landowner permission.

CAFO proponents have also urged counties and townships to grant facilities permission (bypassing the landowner) to use the rights of way for this purpose. This policy is likely to result in the county being sued by landowners aggrieved by this “taking” of private property rights.

While we recognize that manure pipes present an alternative to truck traffic on the roads, we suggest a better policy for counties and townships is an ordinance requiring CAFO operators interested in using manure pipes to secure written permission of affected landowners and carry a $5 million bond in case of accidents or spills.