Resources for County Officials
Under South Dakota Codified Law (SDCL), 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 one section of their ordinance.
That theory 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. This has been proven on multiple occasions in our state courts.
Read, Understand, and Utilize:
Your County’s Comprehensive Plan
Your County’s Zoning Ordinance (not just the CAFO ordinance!)
SD Codified Law 11-2 (County Planning & Zoning)
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.
Haul Road Agreements & Discretionary Formula
If you are considering approving a CAFO, you will first want to secure Haul Road agreements with the applicant. DO NOT WAIT until approval of the permit–make sure your haul road agreements are negotiated in advance. Most counties are having difficulty keeping up with costs associated with road and bridge infrastructure, and the construction and daily operation of CAFOs cause an incredible amount of wear and tear on roads. There are resources to help you craft agreements that protect your county’s infrastructure–work with your county highway department and contact the SD Local Transportation Assistance Program (SD LTAP) for more information.
The discretionary formula is a tax assessment tool used by some counties to entice economic development. But, used without caution, it can cost your county tens, or even hundreds of thousands of dollars. New developments pay a graduated amount over five years–in the first year, 20%; in the second, 40%; in the third, 60%; in the fourth, 80%, and only after five years is the facility or development paying on 100% of the assessed value. But, after five years, some developments have lost a fair amount of their value–meaning the county is never reaping the full tax reward of their supposed new “economic development.” Talk to your Director of Equalization to get a full understanding of the discretionary formula, if your county uses it, and whether it is helping or hurting your revenue stream.
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.
Attend Our Yearly CAFO Forum for County Decision-Makers
In the late fall of each year, Dakota Rural Action holds a CAFO Forum for county elected and appointed officials involved in the Conditional Use Permit (CUP) process. The forum can also be a useful training for other types of permitting processes. In the past three years, presenters have included:
- Staff from the DENR Feedlot Permit Program (outlining where state and county oversight are different)
- Water Development District Managers (helping counties to protect their water resources)
- SD Local Transportation Assistance Program staff (haul road agreements & protecting county infrastructure)
- Attorneys versed in the appeal process (to understand your legal authority in the process & how to stay out of court)
If you’re interested in attending one of our forums (held East River once a year), contact us at (605) 697-5204 or email email@example.com. Note that the forum is ONLY open to county officials, not to industry or the general public.