South Dakota Senators are sending a bill that changes vote thresholds and the appeals process for Conditional Use Permits.
Supporters say it will prevent rural development from being stymied by the vocal few. Critics say it eliminates the right of the public to object and challenge county decisions.
Governor Kristi Noem’s county zoning and appeal process bill zeros in the definition of an aggrieved party. The party would need to have suffered an injury that is “concrete and particularized,” not hypothetical. It also requires an appellant to show their injury is different from injuries suffered by the public in general.
The bill is aimed at the Conditional Use Permitting process. Conditional Use Permits are needed for developments like hog barns, wind farms and utility projects.
Noem says businesses who want to develop in rural South Dakota want to know the rules of the game.
“They want an open process that’s honest and to make sure they can come in and have some consistency when these projects are being planned. That is what 157 does.”
The bill doesn’t change county level setbacks, she adds. It’s meant to deter what she calls frivolous lawsuits.
It gives those who wish to appeal a permit decision 21 days to do so. The county then has 60 days to rule on an appeal. It requires a simple majority to approve, but 2/3 majority of the board to overturn.
Lawmakers struck a provision in the bill that allows judges to award damages to a farmer or defendant who prevails in court.
Senator Craig Kennedy says he sees problems with the bill. The Democrat from Yankton says it could exclude those who have valid concerns on a Conditional Use Permit decision.
He says frivolous lawsuits should be limited, but…
“On the other hand, there times when people might have a valid, legitimate reason for objecting,” Kennedy says. “Those people shouldn’t be held to the same standard as the people who do things vexatious or frivolously. That’s my concern.”
Other critics of the bill worry it’s a statewide solution for problems occurring in two or three counties in the state. Senators are sending the bill over to the house on a 24 to 11 vote.