January 13, 1977

Mr. Allen G. Wilson 
City Attorney 
Hot Springs, South Dakota 57747

Official Opinion No. 77-5

Qualifications of Housing and Redevelopment Commission members

Dear Mr. Wilson:

You have requested an opinion to the following:

QUESTION: 

Is a person who resides just outside but adjacent to the city limits of Hot Springs eligible for appointment to the Housing and Redevelopment Commission of the City of Hot Springs, South Dakota, under the provisions of SDCL 11- 7-11?

SDCL 11-7-11 provides: 

A commission shall consist of five commissioners, who shall be residents of the area of operation of the commission, appointed after the resolution provided for in § 11-7-7 becomes finally effective.  No public officer or employee of the municipality or the county as applicable shall be eligible to serve as a commissioner, but a commissioner may be a notary public. (Emphasis added.)

“Area of operation” is further defined in subdivision (7) of SDCL 11-7-1 as “in the case of a commission created in and for a municipality . . ., the area within the territorial boundaries of that municipality.  . . .” In my opinion, the area within the territorial boundaries of that municipality is the area belonging to said municipality by reason of its incorporation therein pursuant to SDCL 9-3 or 9-4.

Therefore, a commissioner must be a resident of the municipality.  Exactly what constitutes residency is, of course, subject to numerous interpretations depending upon the purpose for which it is being determined.  For example, voting residency is established by fixing a habitation and intending to remain there (SDCL 12-1-4). Since the Legislature has not provided a specific definition or criteria for determining the residence of a commissioner under SDCL 11-7, it is my opinion that the generally accepted and plain meaning of the terms is applicable.  “Residence” is defined in Black's Law Dictionary, 4th Edition, as living in a particular locality or, the bodily presence as an inhabitant of a place.

Based on your question which states that “the person resides outside the city limits of Hot Springs,” it is my opinion that such a person is not a resident of the area of operation and as such is ineligible for appointment to the Housing and Redevelopment Commission.

The answer to your question is no.

Respectfully submitted,

William J. Janklow
Attorney General

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