I love a good train wreck. As planners our job is to consider what train wrecks may occur in the future, and prepare policy intended to avoid them. When the train goes off the track, we do our best to steer our community back on track or help blaze a new trail for it. Difficult as it may be, our communities depend on our ability to navigate through the chaos in preparing and administering policies to avoid or at least clean up after those train wrecks.
Codington County first adopted Zoning in 1974. Major updates occurred in 1997, 2001, and 2006 with numerous smaller amendments over the past 43 years. In 2006 the County followed the long standing policy in adopting rules when it published notice of a public hearing for the County Commissioners to be held at first reading. As was often the case, nobody showed up for the public hearing. At the second reading, someone did show up to speak, so the commissioners acknowledged that person, allowing him and his attorney to speak about the amendment (trying to save the skin of the only strip club in the county. You’re welcome for the pun.)
In May of 2015, the county issued a conditional use permit for a feedlot. As tends to be the case with feedlot permits, that permit was appealed to circuit court. In November of 2016, the judge determined that allowing testimony at the second reading, but only publishing public notice for a public hearing for the first reading, invalidated the comprehensive 2006 zoning amendment. Codington County intends to appeal this decision. (Ironically, the judge also ruled that the changes to feedlot regulations between 2001 and 2006 were cosmetic in nature so the permit was upheld based on the ordinance in its previous form.) Immediately I was instructed to draft an ordinance re-adopting the 40 zoning ordinance amendments adopted by the County since 2001. The Planning Commission and County Commission recognized that the process used to adopt the ordinance in 2006 was likely used many times between 2001 and 2016. The State’s Attorney was aware that the playbook was out on how to appeal any decision made by the Board of Adjustment. In order to avoid the 120 hours (I didn’t know how many hours it would take at the time) of research both Boards re-adopted the rules at the end of December. Two weeks after the second publication of the notice of adoption I was boarding a plane for vacation… and a full page add in the paper was taken out seeking signers of a petition to refer the ordinance to a vote. Four days after that I was still on vacation… and the petitions were filed.
Immediately after setting an election date, the Commissioners placed a moratorium on all building permits in the county until it could be determined what rules were and were not adopted similarly to the 2006 update. For the next several weeks I would describe what rules were adopted with the same process and therefore what permits were presumed to be invalid. In all, 30 of the 40 ordinances were ultimately presumed invalidly adopted based on the process used. Some of the most interesting rules that were no longer valid included the floodplain regulations and map, the ability to have accessory uses of any kind, a rule validating a permit for a $7 million resort, and an ordinance validating the permit for a $7 million fertilizer plant. (Ever wonder what happens when a rival fertilizer plant finds out, during fertilizer spreading season that the only competition was built with an invalid permit? I hadn’t either.) After a little over $50 thousand in expenses (the entire 165 page ordinance had to be published twice, in each of the county’s official newspapers), several flattering letters to the editor, a dozen presentations at local organizations, and one agonizingly awkward public forum; 14% of the county’s voters chose to show up. The ordinance was ultimately upheld, re-adopting all of the previously assumed valid rules by a count of 1,670 to 739.
If you’re still reading this, your reward is the moral of the story. As we have heard at the last several Planner’s Conferences from Jack and Zach, if you are not able to demonstrate your ordinance was adopted in accordance with state law, re-adopt your zoning ordinance. If you don’t, you may wind up navigating your community through the chaos of an invalid zoning ordinance.
(One last self-deprecating editor’s note: This is the 3rd and no doubt least entertaining version of this article I have written for this site. On two occasions, for some inexplicable reason I exited my article without saving. At least one of those two versions was informative, entertaining, and the appropriate professional combination of wit and brilliance. But, alas, it was lost when I was unable on Friday at 5pm to press Ctrl + V to paste the document in an email. When Word asked if I was sure I wanted to exit without saving, I laughed “Sure! I already sent this.”)
Thanks! Luke Muller, your 2017 SDPA President