January 26, 1981

Ms. Donna McCrea
Brown County State's Attorney 
Brown County Courthouse 
Aberdeen, South Dakota 57401

Official Opinion No. 81-4

Three-Mile County/City Zoning

Dear Ms. McCrea:

Your predecessor, Jerald M. McNeary, requested an official opinion from this office based on the following factual situation:

FACTS: 

The City of Aberdeen did on June 26, 1968, adopt a Zoning Ordinance which Zoning Ordinance applied within the corporate limits of the City and within the territory beyond said corporate limits for a distance of three miles, and provision was made in said Ordinance for the issuance of zoning permits by the Zoning Inspector for the City of Aberdeen, and the collection of fees. 

The City of Aberdeen and Brown County for a number of years have jointly exercised jurisdiction in the three mile area outside the corporate limits of the City of Aberdeen, and relative to this area, the City of Aberdeen has issued the combined zoning permit and building permit and collected the fee, and the City Housing Inspector has made the inspection in this area. 

Of recent date the County and the City have discussed the advisability of entering into a 'joint exercise of governmental powers' under SDCL Chapter 1- 24, whereby the City would issue the permits for zoning and building in the area outside the corporate limits of the City of Aberdeen and within three miles thereof.

Based on the above facts, you have asked the following questions:

QUESTIONS: 

1.  Does the County have the power to prescribe the manner of constructing buildings, structures and walls thereof, and does the County have the authority to enact a comprehensive building code in the area outside the corporate limits of the City? 

2.  May a City impose its building regulations and code pursuant to SDCL 9-33-4 and 9-33-4.1 upon the area outside the corporate limits and within three miles thereof wherein they are exercising zoning jurisdiction?

IN RE QUESTION NO. 1:

As a general rule, a county is vested with only such powers as are expressly conferred by statute, or which may be reasonably implied from the powers expressly granted.  State ex rel. Jacobsen v. Hansen, 75 S.D. 476, 68 N.W.2d 480 (1955); State ex rel. Bell v. Board of Commissioners of Beadle County, 68 S.D. 237, 300 N.W. 832 (1941); South Dakota Emp. Protective Assn. v. Poage, 65 S.D. 198, 272 N.W. 806 (1937).

It is therefore my opinion that counties may not regulate zoning and building within the county except as provided by SDCL Chapters 11-2 and 11-6.  I would, however, note the following statutes which are particularly instructive in that regard.   SDCL 11-2-14 provides: 

For each zoning district zoning ordinances, or regulations may be adopted  designating or limiting the location, height, bulk, number of stories, size of, and the specific uses for which dwellings, buildings and structures may thereafter be erected or altered; the minimum and maximum size of yards, or other open spaces; sanitary, safety and protective measures that shall be required for such dwellings, buildings and structures; the area required to provide for off-street loading and parking facilities; flood plain areas; and to avoid too great concentration or scattering of the population.  All such provisions shall be uniform for each class of land or building throughout each district, but the provisions in one district may differ from those in other districts.

SDCL 11-2-18 provides: 

Official controls are not limited to the features set forth in § §  11-2-13 to 11-2-17, inclusive.

It would appear that § § 11-2-14 and 11-2-18, authorize much of what is generally contained in county building codes.

IN RE QUESTION NO. 2:

SDCL 9-29-1 provides: 

Every municipality shall have power to exercise jurisdiction for all authorized purposes over all territory within the corporate limits and over  any public ground or park belonging to the municipality, whether within or without the corporate limits, and in and over all places, except within the corporate limits of another municipality, within one mile of the corporate limits or of any public ground or park belonging to the municipality outside the corporate limits, for the purpose of promoting the health, safety, morals, and general welfare of the community, and of enforcing its ordinances and resolutions relating thereto. (Emphasis added.)

In view of § 9-29-1, it is my opinion that the municipal powers specified in SDCL § § 9-33-4 and 9-33-4.1 are enforceable outside, but only within one mile of, the corporate limits.

The three-mile limit (SDCL 11-6-4.2 etc.), on the other hand, is only relevant if the power to be enforced is authorized pursuant to SDCL Chapters 11-4 and 11-6.  In that regard, I would especially note SDCL 11-4-1 which reads as follows: 

For the purpose of promoting health, safety, morals, or the general welfare of the community the governing body of any municipality is hereby empowered to regulate and restrict the height, number of stories, and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts, and other open spaces, the density of population, and the location and use of buildings, structures, and land for trade industry, residence, flood plain, or other purposes.

In the event that conflict occurs between city and county rules in the three- mile area, the city-county dispute should be resolved pursuant to SDCL § § 11-6-10 and 11-6-12.

Respectfully submitted,

Mark V. Meierhenry
Attorney General