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Legislature Prefers State Regulation of Billboards over Local Zoning

Ken Santema recounts what's shaping up to be another bad week for traditionalist conservative supporters of property rights and limited government in the South Dakota Legislature.

Rep. Stace Nelson (who has bought groceries for my family with his ad on this blog) introduced House Bill 1232 to prevent the state Department of Transportation from trumping local zoning decisions. Mr. Santema reports HB 1232 was in part a response to HB 1036, the Department of Transportation's proposal to annul local zoning actions taken to create zones primarily for billboards.

HB 1036 appears to target an April 2013 zoning decision in McCook County, where one Ralph Tuschen asked the county commission to rezone a small parcel next to I-90 from agricultural to commercial for sign placement. According to Santema's account of last week's House Transportation Committee hearing, the Department of Transportation frets that if counties let folks put up billboards willy-nilly, South Dakota will lose federal highway funds. Indeed, the Highway Beautification Act says that states that fail to maintain proper control of outdoor advertising can lose 10% of their federal highway funds.

Combine the loss of $38 million dollars (in FY 2014, the Legislature appropriated $380 million in federal funds for transportation) with the chance to beat up on Stace Nelson, and you get a bill that goes nowhere. The full House killed HB 1232 Monday, with only Nelson's band of merry but meager Mugwumps choosing local control over slavery to Washington (at least that's how they'd describe it). HB 1036 passed the House two weeks ago and awaits Senate action.

I do sympathize with Mr. Santema. I chafe at restrictions on signage and other design choices on private property, for Fifth and First Amendment reasons. If a property owner wants to clutter her yard with signs or old tractors or big cut-outs of farmers in bibbers swatting their wives' amply bloomered backsides, who are we to intrude with our aesthetic sensibilities? At the same time, we can't let Midco, Lamar, and Ted Hustead buy out every farmer and rancher from the McNenny Hatchery to Valley Springs and turn I-90 into a continuous walled strip of flashing advertisements. Finding the middle ground between free market, free expression, and scenic views here is tricky.

But the local-state-federal authority question offers no middle ground. If the federal government says states must follow certain rules to get highway funding, the state can't allow local governments to make decisions that imperil that funding. The state either allows counties to make their own zoning decisions on billboards, or the state exerts the control necessary to continue receiving federal funding. The state picks either small government or big government. The Legislature's vote on HB 1232 shows that, contrary to what the majority Republicans will be telling you on the campaign trail this year, they pick big government and federal money over small government and local property rights.

Related Reading: Scenic America says billboards degrade the natural environment, endanger health and safety, and hamper economic development. Ah ha! So that's why South Dakota has trouble competing in business recruitment!

Tangential Reading: A committee of Leadership Madison trainees wants more signs in Madison, to help visitors find our schools.


  1. Rep Stace Nelson 2014.02.12

    Some small corrections, Mr. Tuschen asked McCook county to rezone about 3 acres of ag ground for commercial use. It was not part of the discussion what intended commercial use the rezoning was going to be used for, nor was it required. After going through the process, Mr. Tuschen and the property owner decided to apply for a billboard permit. DOT subjected them to questions above and beyond the application for a permit allows under SD law. DOT asserted that McCook County's legally determined rezoning should be discounted under DOT's opinion of a 1973 court case, which they confirmed the SD Legislature fully addressed with changes that are now current SD law. DOT effectively assumed judicial review authority over a county's legal determination which it does not have authority to do so under SD law. Matter of fact, the zoning statutes require any contestation of legality be addressed in the court of law having jurisdiction over the contested zoning decision, which is NOT DOT.

    DOT confirmed that larger sign companies have in fact been given permits for new bill board signs where Ag ground was rezoned in small plots of square feet AND that the federal government has not expressed any concerns about SD's billboards in over 40 years.

    This is a case where bureaucrats went after a voter and rejected his permits with arbitrary denials not supported under SD law. Thus DOT bringing HB1036 to give them the authority to deny permits over county's legally enacted zoning decisions based solely on their OPINIONS that zoning may have occurred to facilitate the placement of billboards in SELECT cases..

    Let's hope the DOT doesn't assume authority over what constitutes the beautification of the internet and who they should allow to advertise..

  2. caheidelberger Post author | 2014.02.12

    On Tuschen's request: the McCook County minutes from April 23, 2013, to which I link say "Reason for rezone: change from Ag to Commercial for sign placement."

    I do agree, in general, that if counties are following proper zoning procedures, the state needs to show pretty compelling interest in overturning local zoning decisions. And Rep. Nelson does make an interesting case that the DOT's action may be less about compliance with federal billboard rules and more about arbitrary favoritism for larger sign companies. We have billboards all over the place, and Uncle Sam hasn't nicked our funding yet.

  3. mike from iowa 2014.02.12

    Can Trans-Canada condemn ground along the interstate and place pro KXL billboards?

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