S.D. Senate votes to standardize processes for deciding county permits for rural projects

Capitol News Bureau

PIERRE, S.D. (KELO) — A majority in the South Dakota Senate agreed Friday with Governor Kristi Noem and passed an amended version of her legislation that would smooth the complicated steps that county governments face on permits for projects such as livestock developments and energy facilities.

The vote was 24-11 for standardizing and accelerating decisions and appeals. Counties would keep control over their zoning ordinances, but one of the governor’s changes would allow permits to be approved by a majority of the board members who were present when the decision is made.

SB 157 now goes to the state House of Representatives for further action.

The Republican governor’s bill drew support from only Republican senators Friday. A mix of six Republicans and the chamber’s five Democrats opposed its passage.

Two hours before the Senate’s debate, Noem — who grew up on a farm and had to leave college when her father died — told reporters at her weekly legislative-session news conference why she wants it.

“Well, our economy in South Dakota has been declining pretty consistently over the last decade to twelve years and not growing like we would like to see in order to create opportunities for our kids and grandkids to stay here and pursue the careers they would like to,” Noem said.

“So these conditional use permits that are utilized and given out when economic development projects go in place, oftentimes maybe family farmers bringing a project, it might be livestock owners who want to grow their operation, it could be ethanol plants, it could be power plants, wind projects, that allow a family to cash-flow their land so they can stay there — it’s any kind of project that might go forward that would require this type of permit.

“And by facilitating a fair process that’s timely, we’re making that it is easier for those to get handled and dealt with for those business folks that like to make decisions. And we can’t have just one part of our state, or one urban area of our state, being successful. In order for our state to really offer opportunities, we have to have every county and every area of our state being able to grow, add development where they choose to, to be able to decide what criteria those development projects have to fit, and make sure that we still continue to keep that business mindset while we go about our day to day lives creating opportunities for that next generation,” she said.

In a related step, the governor and her economic development commissioner, Steve Westra, last year started having livestock development projects request sales-tax refunds from the state Board of Economic Development and assigning the money to the county governments where they’re located.

Here’s a summary of SB 157’s proposed changes:

Tightens the definition of an aggrieved party.

Requires a majority of the commission members who are present for a decision on a permit. Counties currently decide what their majorities should be.

Says a project that’s received a permit can’t sit dormant for more than one year.

Sets a 21-day period for filing an appeal to the county government.

Sets a 60-day period for the county board to decide the appeal.

Requires a two-thirds majority of the county board to reverse the decision.

Requires a county board to respond within 30 days to a petition filed in the local court.

Makes the person who files the challenge responsible for costs of transcribing the county’s decision record.

Gives the court 30 days to hold a hearing.

Allows the judge to award attorney fees and costs to the winning side.

Makes the permit valid for two years after any final appeal of the decision.

The Senate agreed to an amendment from Republican Art Rusch of Vermillion to remove authority for a judge to award compensatory damages to the winner in an appeal. Rusch is a retired circuit judge.

On a voice vote, Republicans strongly rejected an amendment attempted by Democrat Susan Wismer of Britton to require that decisions be made by a majority of members-elect.

Wismer, who grew up on a farm, is the third generation of her extended family to serve as a legislator and was the Democrats’ 2014 nominee for governor. She said she wanted to vote for the bill but said losing the amendment would be “a deal-breaker.”

Senator Craig Kennedy, a Yankton Democrat who’s practiced law for more than four decades, said keeping the decision requirement as members-present could mean a minority of county commissioners could approve a permit, if two of the five weren’t at the meeting.

Senator Lee Schoenbeck, a Watertown Republican who’s practiced law for nearly as long, said he couldn’t recall a time when that’s happened.

Republican Senator Gary Cammack of Union Center, a rancher and business owner, said the problem that some projects currently face is opponents can appeal and financing dries up.

Senator Lance Russell, a Hot Springs Republican, opposed the bill but left open the possibility he would vote for it a second time, if the House amended it. Russell, a lawyer who has been the state’s attorney in Fall River County and ran for the Republican nomination for attorney general in 2018, said South Dakota law typically gives 30 days — rather than 21 in the bill — for an appeal.

Before the debate, Senate Democratic leader Troy Heinert told reporters he disagreed with people who said “a vocal few” were holding up projects. “Those vocal few matter. They’re worried about their county,” Heinert said.

Kennedy also spoke against the legislation to reporters. “Their definition of ‘aggrieved person’ is very, very narrow. And I’m wondering if that might not preclude people who have very valid concern from participating in the process,” he said.

Senate Republican leader Kris Langer of Dell Rapids led the Senate’s argument for the changes, saying they were an example of the governor’s declaration that South Dakota is “open for business.”

Langer told reporters, “So if a county has zoning ordinances they’re following right now, nothing will change with that. They can continue to work within the parameters of their local county commissions. We learned yesterday in testimony from Minnehaha County, for example, that this really, virtually, just mirrors what the process is in Minnehaha County.”

Noem testified at the Senate State Affairs Committee hearing Wednesday. Other supporters included lobbyists and leaders representing county commissioners, pork producers, cattlemen, Farm Bureau, soybean producers, bankers, retailers, energy producers, corn growers, ethanol producers and others.

Opponents were lobbyists for the Sierra Club, Dakota Rural Action, Yankton Sioux Tribe, Stockgrowers and Izaak Walton League, and some individuals.

Here’s how senators voted Friday:

Yes — Gary Cammack, R-Union Center. Jessica Castleberry, R-Rapid City. Blake Curd, R-Sioux Falls. Helene Duhamel, R-Rapid City. Bob Ewing, R-Spearfish. Brock Greenfield, R-Clark. Joshua Klumb, R-Mount Vernon. Jack Kolbeck, R-Sioux Falls. John Lake, R-Gettysburg. Kris Langer, R-Dell Rapids. Ryan Maher, R-Isabel. Al Novstrup, R-Aberdeen. Jeff Partridge, R-Rapid City. Art Rusch, R-Vermillion. Lee Schoenbeck, R-Watertown. Kyle Schoenfish, R-Scotland. V.J. Smith, R-Brookings. Deb Soholt, R-Sioux Falls. Jim Stalzer, R-Sioux Falls. Wayne Steinhauer, R-Hartford. Margaret Sutton, R-Sioux Falls. Jim White, R-Huron. John Wiik, R-Big Stone City. Jordan Youngberg, R-Madison.

No — Rocky Blare, R-Ideal. Jim Bolin, R-Canton. Red Dawn Foster, D-Pine Ridge. Troy Heinert, D-Mission. Phil Jensen, R-Rapid City. Craig Kennedy, D-Yankton. Jeff Monroe, R-Pierre. Reynold Nesiba, D-Sioux Falls. Ernie Otten, R-Tea. Lance Russell, R-Hot Springs. Susan Wismer, D-Britton.

This is a developing story.

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