A History of the Attempt to Take Away Our Vote
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1. South Dakota became the first state in the nation to have referendum and initiative in 1898.
2. Fast forward to 2001 and 2002. In both Bon Homme and Hutchinson counties, someone wanted to put up 3,200 head hog feedlots. Large numbers of local residents came to the zoning meeting saying they didn't want them. The Zoning Board granted conditional use permits anyway. 3, Residents then collected the signatures necessary to put the issue on the ballot. The corporations said, "no, no, no. Once we get a permit, voters can't take it back." The circuit court ruled in favor of the hog farms, and the issue was taken to the South Dakota Supreme Court. The Supreme court said, this is a democracy. Of course, people have a right to vote and ordered a vote in both counties in separate cases. The citizens of Hutchinson County voted 2 to 1 against the feedlots. The citizens of Bon Homme County voted 3 to 1 against the feedlots. 4. The corporations got the governor and the legislature to pass a law in 2003, saying people couldn't vote on zoning permits. Over 25,000 South Dakotans then signed petitions to prevent this law (HB 1281) from going into effect and also putting it on the November 2004 ballot. 5. Realizing they were going to lose in a general election, the 2004 legislature repealed HB 1281 on their own in 2004, so there would not be a vote. 6. The 2004 South Dakota Senate then tried to take away the right to vote in an underhanded way. They passed SB 163. Jim Abourezk who had represented residents in the Bon Homme and Hutchinson county cases before the South Dakota Supreme Court wrote the legislature characterizing SB 163 as simply a disguised version of HB 1281. He said, it too would infringe upon citizens’ right to bring conditional use permits to a vote. When this became public the legislature was flooded with opposition to SB 163. One of the sponsors of the bill withdrew support and the bill was killed in House committee by a vote of 10 to 3. Again, the right to vote had been preserved. 7. A funny thing happened after HB 1281 and SB 163 were defeated. Feedlot proponents began to act like they’d won. HB 1281 had said, “any final decision of the board of adjustment or county
commission shall be deemed a final administrative decision not subject to referendum…..” In
other words, citizens can’t vote on permits. Nevertheless, in both Moody County (May 2004) and Deuel County (March 2005), commissioners turned petitions from voters and their states attorney cited HB 1281 as the reason. When it was pointed out that HB 1281 never took effect and was withdrawn, the states attorneys in both instances invented new reasons to reject the right to vote. It gets worse. SB 163 was introduced in January 2004. It said, "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...” In other words, commissioners would be turned into rubber stamps automatically granting any permit that met guidelines. They would no longer be able to use their best judgment in making decisions to accept or reject a particular permit. That proposed law was defeated. It never passed. However, feedlot proponents went right ahead again pretending that they’d won. Commissioners are being told that they must grant any permit that meets or exceeds all conditions of the plan and applicable zoning ordinances. Many believe this. So despite having defeated attempts to take away the right to referendum and remove the right of commissioners to use their best judgments in making decisions, the feedlot folks have simply decreed that they won and are insisting their (defeated) laws be enforced. And bizarrely, many county officials are taking them seriously. Feedlot proponents ignore the voters (HB 1281) and the legislators (SB 163). Instead, they wage a pr war and put political pressure on commissioners. 8. After the defeat of HB 1281, feedlot proponents also tried another tactic to get around the right to vote. First District Planners out of Watertown was enlisted to write new zoning laws for many counties. The zoning ordinance adopted by Moody County was specifically written to get around the citizens' right to vote. The people in Moody County did not know that. Neither did the county commissioners. (Todd Kays of First District Planners revealed this in personal telephone conversation with Bill Du Bois) However, when citizens in Moody County collected the necessary signatures to put two large dairy feedlots on the ballot, a local judge ruled they had lost their right to vote. He said, they should have objected when the new zoning law was passed. The Supreme Court will soon rule on whether Moody County citizens lost their right to bring those two permits to a vote. 9. Moody County also brought a new tactic to the front. The law says citizens must collect 5% of the signatures of registered voters in the county within 20 days after publication of the approval of a permit. In Moody County, commissioners simply refused to publish. The clock would never start ticking. The feedlot owners began building. Repeated requests for them to publish were ignored. The apparent logic was that citizens wouldn't dare turn down a permit if the operation was already built. Finally, one Moody County commissioner succeeded in forcing a vote on a side issue relating to the permits. He lost 4-1 but that decision was published and residents then collected the signatures necessary to bring it to a vote. As noted above, the case ended up in court. But by that time, the feedlot dairy owners were already millions of dollars into construction. Feedlot advocates have tried spreading the rumor that the county will be sued if the Supreme Court rules citizens can vote and the permits are turned down by voters. 10. Commissioners in all counties are being told by feedlot advocates they must approve all feedlot permits. Feedlot proponents argue all feedlots are created equal and have equal protection under the law. If counties approve one feedlot, they must approve them all. We shouldn’t be allowed to separate the good from the bad. Executive Director Mike Held of the Farm Bureau has said that if counties turn down feedlots, "There are going to be some counties sued into bankruptcy." (source: "Friendly Fire," WNAX radio, April 29, 2005) However, there is a U.S. Supreme Court case that prohibits local governments from being personally sued for their decisions. 11. In Deuel County, a whole new set of shenanigans began to take away our vote. Citizens circulated two petitions to amend local zoning laws -- one increasing the setbacks for feedlots from homes and the decreasing setbacks for trees from roads. Commissioners refused to honor these petitions and allow a vote as required by law. A local court ruled in favor of the right to vote but requiring citizens to hire a lawyer in order to exercise their right to vote amounts to an expensive poll tax. The Deuel County initiative petition also strikes out language in the zoning ordinance that makes “special exceptions” (such as conditional use permits for feedlots) an “admninistrative” decision. It also states: “the citizens of Deuel County shall have the right of referendum… on any legislative decision of the Board of Adjustment, the Board of County Commissioners, or of the County Zoning Board.” Thus no matter what the Moody County case decides, should the Deuel initiative pass, citizens of Deuel County would arguably have the right to referendum. Undoubtedly, feedlot proponents will then challenge that in the courts. 12. Should the right to referendum and initiative on zoning matters be removed, citizens will have little say on what happens in their neighborhoods and no protection against unwise decisions of zoning boards many of whom are appointed and not elected. Such relates not only to feedlots but toxic waste dumps, medical waste dumps and even juice bars. Without the right to referendum, decisions of approving boards would be final and the people would have to trust government officials to always make the right decision.
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