June 29, 1988

Jeffery L. Bloomberg 
Lawrence County State's Attorney 
78-80 Sherman Street 
Deadwood, South Dakota 57732

Official Opinion No. 88-27

Condemnation of private property for County Courthouse

Dear Mr. Bloomberg:

You have requested an Official Opinion relating to the following factual situation:

FACTS: 

Lawrence County is, by mandate of the voters, in the process of developing plans to renovate the Lawrence County Courthouse.  During the planning process, it has become apparent to the County Commissioners that additional space, above and beyond the space currently available in the existing courthouse, will be required to adequately house the courthouse.  Obtaining the requisite additional space may necessitate the acquisition of additional real property for the purpose of building an "annex" or extension to the existing courthouse.  As a result, the County Commissioners may find it necessary to initiate condemnation proceedings on the property adjacent the existing courthouse.

Based upon this factual situation, you have asked the following questions:

QUESTIONS: 

1.   Is Lawrence County required to conduct an election authorizing the County Commissioners to condemn property which will be used to construct an "annex" to the existing courthouse? 

2.   Does the prior election, authorizing the renovation of the existing courthouse, serve as sufficient authorization for the County Commissioners to  proceed with condemnation proceedings of additional real property for the purpose of constructing an "annex" to the existing courthouse?

IN RE QUESTION NO. 1:

SDCL 7-18-9 is the controlling statute in regard to the condemnation of private property by a county.  SDCL 7-18-9 provides in pertinent part that: 

The board of county commissioners is authorized to condemn private property for public purposes in the manner and to the extent hereinafter provided. 

Whenever the board of county commissioners shall deem it necessary to condemn private property for the purpose of ... extending any courthouse ... and of acquiring other or additional ground therefor ... such board shall by resolution and order declare such appropriation necessary to be made, stating the purpose thereof and the extent of such appropriation, and thereupon proceedings for such condemnation and appropriation shall be had as provided by law. 

Nothing herein shall be construed as authorizing county commissioners to condemn property for [a] county courthouse ... site until a majority of the voters of a county shall have voted in favor of the erection of a courthouse ...

Under the facts that you have presented, Lawrence County wishes to condemn  private property for the purpose of extending their courthouse and, consequently, for acquiring other or additional ground therefor.  Such action falls squarely within the second paragraph of SDCL 7-18-9 which allows for the initiation of condemnation proceedings by resolution and order of the Board of County Commissioners.  Even though the "annex" to the existing courthouse may constitute an entirely new and separate structure, the purpose thereof would merely serve as an extension of the existing courthouse.  As a result, no vote would be required under the language of SDCL 7-18-9.

It should be noted that the requisite condemnation proceedings necessary to obtain property for this "annex" would not be establishing a 'site' for the county courthouse as that word is used in the last paragraph of SDCL 7-18-9.  The situs of the Lawrence County Courthouse has previously been established and will not change.  Consequently, the last paragraph of the aforementioned statute is not applicable to the facts that you have presented. Therefore, no public vote is required prior to the Lawrence County Commissioners initiating condemnation proceedings on the property needed to construct an "annex" to the existing Lawrence County Courthouse.

IN RE QUESTION NO. 2:

In light of the foregoing analysis this question need not be addressed  because, as pointed out herein, it is not necessary under SDCL 7-18-9 for the Lawrence County Commissioners to obtain additional public approval prior to the initiation of the appropriate condemnation proceedings.

Respectfully submitted,

Roger A. Tellinghuisen
Attorney General