STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

October 28, 1971

Mr. George S. Mickelson
State's Attorney, Brookings County
Brookings, South Dakota 57006

OFFICIAL OPINION NO. 71-52

Filing and recording of "plats" of land within three miles of city which has adopted a comprehensive plan. SDCL 11-6-26; 11-6-12.

Dear Mr. Mickelson:

You have requested my opinion in answer to the question you have submitted, based upon this factual situation:

The City Planning Commission of the City of Brookings has adopted and filed a certified copy of its Comprehensive City Plan showing its "major street plan" with the Register of Deeds of Brookings County. Such comprehensive plan includes planning only for the territorial limits of the city, but does not include planning for that territory contiguous to, and within three miles of the city.

The question propounded:

In view of the provisions of SDCL 11-6-26, may a "plat" of land within three miles of the corporate boundary of the city be filed and recorded, without the recommendation of the City Planning Commission, and approval by the governing body of the City of Brookings?

The question you have presented involves a peculiar develop men t in our law. SDCL 11-6-26, if read alone, without considering other sections of SDCL 11-6, seemingly requires such recommendation of the Planning Commission and approval of the City Council as a condition precedent to filing and recording with the County Register of Deeds.

However, SDCL 11-6-26 must be read in connection with SDCL 11-6-12 which provides that for such comprehensive city plan containing any zoning provisions to be effective outside the territorial boundaries of the city, and within the three mile location, 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 shall be effective in any such area unless approved by a two-thirds vote of the members of each of the commissions."

There can be no doubt that SDCL 116-12 limits the City Planning Commission in regard to this territory without the city boundaries but within the three mile area of the city limits. I do not believe that it would be of assistance to settling the problem you have presented to dwell further on this section of the law, other than to state that a "comprehensive plan," as it is defined in SDCL 11-6-1(7), certainly envisions a "plan" for the city and its "area" development, which includes not only "zoning" and "planning," as such terms are ordinarily defined.

In the problems you have presented, it is patent that the City Planning Commission has not attempted to do any zoning or planning outside the corporate limits of Brookings. As 1 have pointed out, its own unilateral action could well be ineffective if the city planning commission attempted to plan and zone in such area without the city.

It is my opinion that requiring every "plat" of land within three miles of the City of Brookings to be recommended by the City Planning Commission and approved by the governing body of Brookings, prior to its filing and recording, without the city having any plan for such area, which has been legally approved, a certified copy of which has been filed with the Register of Deeds of the County affected, calls for an exercise in futility.

Such is an exercise in futility for without an existing adopted plan for such area without the city limits, properly filed so that the general public is given notice of the limitations placed upon land platting, no one faced with platting land within such three mile area has any definite guideline showing the limitations, if any, placed upon such platting by the city comprehensive plan. The recommendation of the city planning commission would lie strictly within the whim and caprice of such city planning commission.

It is my opinion that before the requirements of SDCL 11-6-26 make such recommendation and approval a condition precedent to the filing and recording of a plat of land within three miles of the municipality, such municipality must have developed a lawful comprehensive plan, including a "major street plan" for such area contiguous to, but not within the corporate boundaries of the city.

It is my opinion that your question must be answered YES.

Respectfully submitted,

Gordon Mydland
Attorney General