Every year the Legislature deals with land use legislation. This year was no different. While seven specific bills dealing with a myriad of issues were introduced, most were not passed or had little impact on counties and municipalities. House bills 1167, 1184, 1235, and 1247 were defeated. HB 1167 would have removed the requirement of having a county commissioner sit on an appointed planning commission. HB 1184 dealt with certain provisions regarding waste disposal lines along or under highways. HB1235 would have forced counties to require a bond for decommissioning a wind energy system. HB 1247 was the most troubling bill presented. If passed, it would have severely impacted a county or municipality’s ability to use zoning to gradually eliminate identified nonconforming uses. This is a bill we will need to watch for again in the future.
Of the three bills that passed, two would impact counties and communities only if they choose to implement them. SB 147 authorizes local governing bodies to establish the per diem rate for housing and development commissions. HB 1161 updates SDCL 11-6-10 by adopting the 2018 edition of the International Building Code (IBC) as the standard for construction in communities and counties that have not adopted a building code still needs to follow the 2018 IBC. However, the building code provisions do not apply to new construction for any one or two-family dwelling, mobile or manufactured home, townhouse, or farmstead and any accessory structure or building thereto. Each time a new version of IBC is introduced this section gets updated. I was told by a sponsor there was a good reason they could not simply reference “the most recent version of the International Building Code,” to avoid amending this section every few years; and I accepted that as enough explanation.
HB 1292 made the most significant change to existing state law. HB 1292 dealt with the standard of review utilized by the courts regarding appeals related to conditional uses. The new legislation stipulates that notwithstanding any provision of law to the contrary, an appeal to circuit court of a decision regarding conditional use permits shall be determined under a “writ of certiorari” standard regardless of the form of the approving authority. Prior to this change, the decisions of the approving authority in those counties not using a Board of Adjustment or not using a super majority could be appealed and reviewed under a “de novo” standard. Those communities allowing the governing body not acting as the Board of Adjustment to be the final say on conditional uses should still beware. This bill does not change the sections of state law which were successfully argued to allow a conditional use permit issued by the governing body to be referred to a public vote as in Lawrence County.
Finally, it should be noted that at the time of this article, none of the bills passed by the legislature have been signed by the Governor.
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