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Attorney General Marty Jackley

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OFFICIAL OPINION NO. 72-29, Planning and zoning. In case of conflict between a township planning and zoning ordinance and the county comprehensive plan, the county comprehensive plan controls. SDCL 8-2-9; SDCL 11-2

STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

May 25, 1972

Lynn Muchmore, Director
State Planning Agency
Pierre, South Dakota 57501

OFFICIAL OPINION NO. 72-29

Planning and zoning. In case of conflict between a township planning and zoning ordinance and the county comprehensive plan, the county comprehensive plan controls. SDCL 8-2-9; SDCL 11-2

Dear Mr. Muchmore:

You have requested an official opinion to determine the answer to this question:

If an organized township adopts a zoning and planning ordinance in conformity with SDCL 8-2-9, and at the same time there exists a comprehensive county plan for zoning and planning, duly adopted in pursuance to SDCL 11-2, and there is conflict between the township and the county plan, which plan is controlling of the territory involved?

The answer to your question is, consistent with the statutes, that is cases of conflict the county comprehensive plan is controlling.

SDCL 8-2-9, the statute authorizing such township activity, in part provides:

The powers as provided in this section shall be subordinate to any zoning or other powers of the county or adjoining city when such powers are, or shall be exercised by said county or city in respect to said township.

This provision provides in clear, unmistakable language, that unless the county comprehensive plan provides that it does not apply to the affected township, any zoning and planning ordinances of such township are subordinated thereto. In plain language this means in case of any conflict between the county plan and the township ordinances, the county comprehensive plan prevails.

Any claim the township may make that as the county comprehensive plan does not affect this township, because county planning and zoning, by the substantive statutes, SDCL 11-2, is not applicable to the territorial boundaries of an organized municipal corporation, unless the governing body of such municipal corporation requests the county plan to affect the municipal territory is unavailable. A township is not a municipal corporation. It can claim no benefits afforded by statutes to incorporated municipal corporations.

Respectfully submitted,

Gordon Mydland
Attorney General