January 20, 1988

Mr. Gregory A. Protsch
Miner County State's Attorney 
Howard, South Dakota 57349

Official Opinion No. 88-03

City Planning and Zoning Commission

Dear Mr. Protsch:

You have requested an official opinion from this Office concerning the following factual situation: 

In 1975, prior to zoning the City of Howard, the city council appointed five persons to the city planning commission, apparently pursuant to SDCL  11-4-11.  In the appointment, no term of office was specified for the appointees. 

The City did not provide by ordinance for a planning and zoning commission pursuant to SDCL 11-6-2.  In 1977 the City adopted zoning regulations. Such planning commission appointed in 1975 has been inactive since 1978.  In the past six years, the city council has acted as the city planning and zoning commission.  The City has not adopted a comprehensive plan as provided in SDCL 11-6. 

Based on the foregoing, you have asked the following questions:

QUESTION NO. 1: 

Must the City adopt an ordinance for a planning and zoning commission as provided in SDCL 11-6-2 before the city council can avail itself of the powers conferred by SDCL ch. 11-4?

QUESTION NO. 2: 

Can the city council exercise the comprehensive planning and zoning powers granted in SDCL ch. 11-4 and ch. 11-6 without appointing a planning and zoning commission?  

The questions you have presented can best be answered jointly.

Municipalities in this State are empowered generally to enact and enforce zoning ordinances or regulations under SDCL § § 9-12-13 and 11-4-1.  Those sections provide as follows:

SDCL 9-12-13. 

Every municipality shall have power to adopt a zoning ordinance as provided by Title 11.

SDCL 11-4-1. 

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 the 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. 

Numerous procedural and substantive limitations are placed on the municipal zoning power under other zoning enabling statutes contained in chapters 11-4 and 11-6 of the South Dakota Code.  Your questions relate specifically to § § 11-4-11 and 11-6-2, which provide for the establishment of a planning and zoning commission by the municipal governing body prior to its exercise of the zoning power.

SDCL 11-4-11 provides: 

In order to avail itself of the powers conferred by this chapter, the governing body shall appoint a commission to be known as the planning and zoning commission to recommend the boundaries of the zoning districts and appropriate regulations to be enforced therein. 

The planning and zoning commission provided herein shall be the same planning and zoning commission provided under the provisions of ch. 11-6.

SDCL 11-6-2 provides: 

For the purpose of promoting the health, safety and general welfare of the municipality, each municipality of the state shall provide by ordinance for a planning and zoning commission, including the appropriation of money to a fund for the expenditures of such commission.  Municipalities shall, as soon as possible, make, adopt, amend, extend, add to or carry out a general municipal plan of development, such plan to be referred to as the comprehensive plan.

Specifically, you query as to the precise nature of the planning and zoning commission requirement in light of SDCL 11-6-10, which provides as follows: 

The legislative body of any incorporated municipality may exercise the comprehensive planning and zoning powers granted in this chapter and chapter 11-4 not only within its corporate limits, but also, subject to the provisions of sections 11-6-12, within three miles in all directions of its  corporate limits and not located in any other municipality; provided, that nothing contained in this chapter shall be construed to amend or repeal any provisions of chapter 49-34A. 

It is my opinion that SDCL § §  11-4-11 and 11-6-2 clearly and unmistakably require the creation by ordinance and appointment of a planning and zoning commission by the municipality prior to its exercise of any of its zoning powers under either chapter 11-4 or 11-6.  There is nothing ambiguous or unclear about the language in either statute.  They expressly establish a mandatory procedural step in the enactment of zoning ordinances.

The language of SDCL 11-4-11 is virtually identical to that contained in the standard state zoning enabling act of 1926 which has through the years been incorporated, with local variations, in the zoning enabling legislation of many states.   The same procedural limitations as expressed in the standard act and as established by comparable provisions in other states has generally been viewed as mandatory.  Coffee City v. Thompson, 535 S.W.2d 758 (Tex. Civ. App.); State v. Schartz, 82 S.W.2d 63 (Mo. 1935); See also Anderson American Law of Zoning, 3d § § 4.02 and 4.03 (1986).

Further, the language of SDCL 11-6-10 does not authorize municipalities, that have not provided for and appointed a planning and zoning commission, to exercise the comprehensive planning and zoning powers granted under chapters 11-4 and 11-6.  The statute merely sets forth the territorial extent of the  municipal zoning powers.  It does not set aside, either expressly or impliedly, any procedural limitations on the exercise of those powers.

The mandatory nature of the planning and zoning commission requirement is also required by the language of other South Dakota statutes.

SDCL 11-2-32 provides: 

Nothing in this chapter shall be construed to prevent or modify the powers of an incorporated municipality, with a duly authorized planning commission, from exercising planning and zoning jurisdiction within the corporate limits....

SDCL 11-6-12 provides: 

Whenever a municipality assumes zoning jurisdiction in any area outside of the limits of such municipality the county zoning commission of the county in which such area lies, shall sit with the city planning commission on all matters pertaining to the planning and regulation of such area and no zoning powers provided by this chapter or chapter 11-4 shall be effective in any such area until each of the commissions makes a recommendation to the city council and the board of county commissioners....

In short, the South Dakota statutes absolutely require that a planning and zoning commission be established and appointed and that the commission make recommendations to the governing body regarding "the boundaries of the zoning district and appropriate regulations to be enforced therein."  SDCL 11-4- 11; see also City v. Clark, 288 N.W.2d 312 (S.D. 1980).  Such requirement is obviously intended to protect the property owner against an arbitrary exercise of the zoning powers and to insure that any regulations adopted implement a comprehensive plan for community development.  Any attempt by a municipality to exercise the zoning powers under chapters 11-4 and 11-6 without a duly appointed planning and zoning commission would be ultra vires and any zoning ordinance enacted by the municipality would likely be declared invalid were a court asked to rule upon the matter.

Respectfully submitted,

Roger A. Tellinghuisen
Attorney General