SB 163 should be opposed because it serves to deprive county citizens of the right to a referendum vote on any decisions made by the county government. It does so by a very clever method of making all such decisions of a county an "administrative" decision, which decisions are not referable, according to our Supreme Court's precedents.

The pertinent language in SB 163 is: "A permit applicant, who has met or exceeded all conditions in the plan and any applicable laws and zoning ordinances, shall be granted a permit until revoked or suspended for good cause after notice and a meaningful opportunity to hear the causes presented and offer refuting evidence."

There were two Supreme Cases which ordered Bon Homme County and Hutchinson County to hold a referendum vote, which the County Commissioners had refused to do. These cases are: Vitek v. Bon Homme County, 644 N.W.2d 231, 2000 SD 45; and Kirschenman v. Hutchinson County, 656 NW 2d 330, 2003 SD 4. The elections were held pursuant to the Supreme Court's order in both cases, and we won the elections by a 2-1 margin in Hutchinson County, and by a 3-1 margin in Bon Homme.

In these cases, the Supreme Court re-affirmed their holding that when a County Commission has discretion to vote for or against a permit for a hog feeding operation, for example, that decision is referable. If the Commission has no discretion, then that is defined as an "administrative" ruling, which is not referable.

By mandating that a permit applicant be given a permit, as SB 163 does, the discretion of the County government is removed which then makes it a non-referable decision.

Moreover, SB 163, besides depriving citizens of their right to vote on County decsions, also takes away a county's right to establish environmental regulations.

Additionally, SB 163 is a violation of the rules of fair play. A great many people worked very hard last year to put HB 1281 on the statewide referendum ballot. To have this effort mocked by revising language and doing the same thing that HB 1281 would have done is both wrong and unfair.

The entire bill is a destruction of local control. I find it difficult to believe that any legislator would vote to deprive us of our right to vote as this bill does. I have talked to State Senators who tell me that they were fooled by SB 163, in that they didn't catch the nuance of creating an administrative ruling out of a permit application. It was indeed well hidden from anyone who is not familiar with our Supreme Court decisions in this regards.

I would urge that this Committee vote down SB 163 so that we can continue with the referendum vote on HB 1281 as the referendum intended.

Sincerely,


James G. Abourezk