STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL
October 24, 1972
Mr. George S. Mickelson
States Attorney, Brookings County
Brookings, South Dakota 57006
OFFICIAL OPINION NO. 72-57
Municipal planning in rural areas outside corporate boundaries. Certain questions answered SDCL 11-6-12.
Dear Mr. Mickelson:
You have requested my official opinion based upon this statement of fact:
The City of Brookings heretofore has adopted and filed a comprehensive plan which encompasses only the corporate limits of the municipality. No planning or zoning has been made for that area within three miles of the city limits as of this time. The City Planning Commission, however, has caused planning and zoning of such rural areas to be made, and a comprehensive plan for such area is in existence, and the Planning Commission contemplates considering the adoption of such as the comprehensive plan for such rural areas.
In connection with such factual situation, you have propounded six (6) separate questions.
QUESTION 1. When does the City "assume jurisdiction" over the three mile limit as that term is used in SDCL 11-6-12?
The authority to exercise comprehensive planning and zoning within three miles in all directions of the corporate limit of the municipality does not arise from SDCL 11-6-12. Rather, such is provided in SDCL 11-6-10. Exercise over such jurisdiction need not commence with the original planning and zoning. Rather, such should be exercised when the need arises.
In this connection I agree with the comment of my predecessor in that opinion reported in 1959-60 AGR 151, when he said:
It appears to me that before a city may adopt a master plan for an area outside of its corporate limits, there must be an indication that the area will be developed. The city may not arbitrarily include all the area within three miles of its corporate limits in its Master Plan.
When the need for such "rural zoning" arises, it is my opinion the city has not "assumed jurisdiction" during its preliminary study of planning and zoning in such area. Nor do I believe it has "assumed such jurisdiction" during its preliminary study of planning and zoning in such area. Rather, it is my opinion that under SDCL 11-6-12, that the moment a comprehensive plan for such area outside the corporate limits has been prepared, and the planning commission is to study such concrete plan, it has "assumed jurisdiction" and the provisions of SDCL 11-6-12 apply.
QUESTION 2. Does the master plan have to be adopted by the city planning commission only or does it have to be adopted by both the city planning commission and the county planning commission?
While in law there is a distinction between "planning" and "zoning," it is my opinion from the language, of SDCL 11-6-12, our Legislature made no such subtle distinction. As long as such comprehensive plan includes regulation on the use of such rural areas, such statute requires joint action of the city and county planning commission to enact a valid binding Master Plan for such rural areas.
SDCL 11-6-12 was adopted by the 1966 Legislature and was contained in House Bill No. 746. The original draft of said bill proposed the following, to-wit:
( ( (45.3319 Representation on Commissions. Whenever a municipality assumes zoning jurisdictions outside the city limits, the governing body of the city shall appoint two members who are residents of the area outside the city limits as members of the planning commission; provided, that if the extra territorial area includes parts of two or more counties, the area included from each county shall have two additional members. Such members shall have equal rights, terms, privileges, and duties with the other members of the planning commission in all matters pertaining to the plans and regulations of the area in which they reside, both in the preparation of the original plans and regulations and in consideration of any proposed amendments to such plans and regulations.)))
The entire section was stricken from the Bill and the Legislature inserted in lieu thereof what is now SDCL 11-6-12. The question of the exclusive authority was squarely before the Legislature and they determined that the authority for zoning should be a joint authority.
Question 2 must be answered that such Master Plan, although a municipal master plan, which affects the rural areas within three miles of the municipality, too be effective must be the result of the joint action and approval of the City Planning Commission and the County Planning Commission.
QUESTION 3. With reference to question 2, above, does the master plan or comprehensive plan have to be adopted by a simple majority or by a two-thirds majority?
SDCL 11-6-12 furnishes the answer to this question. Before such master plan for rural areas is effective, it must be adopted by a two-thirds vote of the members of each such planning commissions adopting the same.
QUESTION 4. Since the comprehensive plan itself includes zoning recommendations which would have to be adopted by an ordinance of the City of Brookings, does the County Planning Commission have to' approve the zoning proposal, and if so, should it be approved or rejected by the County Planning Commission before or after the adoption of the ordinance by the City Commission?
There would be no illegality in obtaining the approval of the county planning commission to the adopted city comprehensive planning ordinance. However, the law does not require such approval as a condition precedent to the validity of such ordinance. SDCL 11-6-12 requires the county zoning commission (now designated the county planning commission) to participate with the city planning commission in the formulation of the comprehensive plan. Such cooperation and approval must precede the submission of such comprehensive plan to the governing body of the city for their adoption in the form of a municipal ordinance. The official records of the city must: affirmatively show the plan approved by such county planning commission. However, such need not be exhibited by a showing that such county planning commission approved the enacted city ordinance.
QUESTION 5. Does the two-thirds majority provision in SDCL 11-6-12 apply to the initial adoption only or does it apply to subsequent amendments to the zoning provisions?
It is my opinion that it is explicitly provided in SDCL 11-6-12 that municipal planning and zoning of the rural areas surrounding such municipality is not effective, if such is adopted only by the unilateral effort of the city planning commission. An effective comprehensive plan must be the result of joint consideration and approval of the city and county planning commissions.
To limit the statute to the original adoption of the comprehensive plan, and to rule that it does not apply to amendments to such municipal plan which affect the rural areas involved, would be to prostitute the statute and thwart the legislative will.
Joint planning and joint adoption is required not only as to the original comprehensive plan, but also to any amendment thereof which affects such rural areas.
QUESTION 6. Assuming that the land use and zoning provisions were duly adopted by both the city and county planning commissions, or just the city planning commission, depending on your answer to the question above, to whom does an individual submit a request for special exception, the city board of adjustment or the county board of adjustment, or both?
SDCL 11-6-12 clearly states that" ... the county zoning commission ... shall sit with the city planning commission on all matters pertaining to the planning and regulation of such area .... ". It would appear that the granting of a special exception would be included in "regulation of such area." It: is my opinion that the request would be submitted to both the municipal board of adjustment and to the county board of adjustment.
Respectfully submitted,
Gordon Mydland
Attorney General
