May 4, 1976
Mr. Michael Curran
State Representative
Jefferson, South Dakota 57038
OFFICIAL OPINION NO. 76-48
Approval of plats pursuant to SDCL 11-3-6
Dear Representative Curran:
You have requested an opinion on the following questions:
1. (a) Under SDCL 11-3-6, is McCook Lake, South Dakota, considered an unincorporated town and if so (b) can a plat of an adjoining subdivision be legally recorded without the endorsement of the governing body?
2. May a member of a county planning commission also be appointed by the board of county commissioners as land use administrator?
SDCL 11-3-6 provides:
11-3-6. The provisions of this chapter shall apply to every addition to, or subdivision within, any city, town, or unincorporated town, provided that if the land or any part thereof included in any such addition or subdivision is within, adjoining, or contiguous to the boundaries of any city or town, the plat thereof, before being recorded, shall be submitted to the governing body thereof, which shall thereupon examine the same, and if it shall appear that the system of streets and alleys set forth therein conforms to the system of streets and alleys of the existing plat of such city or town, and that all taxes and special assessments, if any, upon the tract or subdivision have been fully paid, and that such plat and the survey thereof have been executed according to law, such governing body shall, by resolution, approve the same, and the auditor or clerk shall endorse on such plat a copy of such resolution and certify to the same theron. No plat of any such additon or subdivision so situated shall be entitled to record or be recorded unless the same bears a copy of such resolution and certificate of the auditor or clerk.
The term "unincorporated town," although appearing in various parts of the law, is nowhere specifically defined. By deductive reasoning it can be said that an unincorporated town is one not organized and structured pursuant to the incorporation statutes of SDCL 9-3. The law does not provide for a governing body per se for unincorporated towns, nor does it grant them powers and duties. The regulation of said towns is left to the board of supervisors of the township in which it is located. (SDCL 8-2-8.)
Therefore, it is my opinion that an unincorporated town, assuming McCook Lake may be classified as such, has no authority to approve or disapprove plats of adjoining subdivisions. Except as provided in SDCL 8-2-9, planning and zoning power is delegated to the county commissioners (see AGR 74-40). SDCL 11-2-17 specifically authorizes regulations and controls pertaining to "subdividing of land and the approval of land plats" to be included in the comprehensive plan. The comprehensive plan is to be prepared on the county level and is subject to approval and review by the county commissioners.
The answer to your specific question 1(b) is YES.
I can only answer your second question in general terms since your request does not specify the duties to be performed by the "land use administrator." It has long been the position of this office that a person may hold two positions of public employment, if not otherwise specifically prohibited by statute, unless there is a direct conflict in the duties to be performed or if one office is subordinate to the other. (For example, see 1959-60 AGR 73.)
Suffice it to say, I am of the opinion that the two positions do not appear to be inherently incompatible. The ultimate determination depends, of course, on the nature of the agreement or contract entered into pursuant to SDCL 11-2-4, and the specific duties and powers granted the administration thereunder.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
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