Agenda - Planning Commission - 05/05/2011

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Zoning Bulletin March 10, 2011 ( Volume 5 I No. 5 posed amendment was not a legislative decision and was therefore not referable to a referendum vote. Citizens appealed. DECISION: Affirmed. The Supreme Court of South Dakota held that a proposed amend- ment to a zoning ordinance is not a legislative decision, and, thus, is not referable to a referendum vote. The court explained that the procedure for submitting an amendment of an ordinance was governed by South Dakota statutory law. SDLC § 11-2-30 provided: "After the hearing, the board shall by resolution or ordinance, as appropriate, either adopt or reject the amendment ...." That section also provided that § 11-2-22 was applicable. Section 11-2- 22 provided: "The comprehensive plan, zoning ordinance, and subdivi- sion ordinance may be referred to a vote of the qualified voters of the county pursuant to §§ 7-18A-15 to 7-18A-24 ...." The courtfound that the language of § 11-2-22 referred "only to a `comprehensive plan, zoning ordinance, and subdivision ordinance."' Here, noted the court, Citizens was "not seeking any of th[ose] but rath- er a rejected amendment to a zoning ordinance." The court determined that SDCL § 11-2-22 was not applicable. Even if § 11-2-22 was applicable, noted the court, § 7-18A-15 (cit- ed in § 11-2-22) allowed that only ordinances or resolutions "adopted by a board" could be referred to a referendum vote. Here, there was no "adoption" of an ordinance; here, the Board "rejected the proposed amendment." Moreover, § 7-18A-15.1 provided only that a "legislative decision of a board of county commissioners is subject to the referendum process." Here, found the court, the Board's rejection of the proposed amendment did not constitute a legislative act. Only affirmative actions effecting some change in an existing ordinance or the passing of a new ordinance may be referred to a referendum vote, said the court. The court concluded that because the Board's rejection of Citizens' proposed amendment was not a legislative decision (i.e., it "was not an act"), it was not referable to the referendum process. See also: Bechen v. Moody County Bd. of Com'rs, 2005 SD 93, 703 N.W.2d 662 (S.D. 2005). See also: Wang v. Patterson, 469 N.W.2d 577 (S.D. 1991). Case Note: In emphasizing the difference between legislative deci- sions —which were subject to referendum vote —and administrative decisions —which were not —the court noted that "all municipal ac- tion cannot be subject to local review by the electorate. If govern- © 2011 Thomson Reuters 7