OFFICIAL OPINION NO. 07-01, Ability of a Board of County Commissioners to Maintain or Repair Roads within an Unorganized Township

The South Dakota Supreme Court has stated that “no standards for road repair and maintenance exist” in South Dakota law.  Krier v. Dell Rapids Township, 2006 S.D. 10, ¶ 17, 709 N.W.2d 841, 845 (citing Willoughby v. Grim, 1998 S.D. 68, ¶ 10, 581 N.W.2d 165, 166).  Therefore, the “details” for repair and maintenance remain within the discretion of the public entity charged with such maintenance or repair.  Krier, 2006 S.D. 10, 17, 709 N.W.2d at 845 (quoting Willoughby, 1998 S.D. 68, ¶ 10, 581 N.W.2d at 166).  My predecessors in this office have recognized and adopted this position.  A.G.O. 95-01, 93-01, 89-17; 1963-64 A.G.R. 233.   I agree with their conclusions.  

The public entity charged with the duty of ensuring a public highway remains safe and passable has wide discretion in determining what the proper level of maintenance and repair is for that road.  The only duty placed upon these public entities is that they exercise “reasonable and ordinary care” to preserve the highways in a “reasonably safe condition.”  Bland v. Davison County, 507 N.W.2d 80 (S.D. 1993); A.G.O. 95-01.  

In reviewing SDCL 31-13-32 through 31-13-54 it is clear, however, that the Legislature drew a distinction between improvements to township roads and maintenance and repair of those roads. The Legislature, in SDCL 31-13-32 through SDCL 31-13-50, speaks specifically of “improvements.”  In SDCL 31-13-33 the Legislature, in effect, defined an improvement by stating: 

Whenever the board of supervisors of any township deem it necessary to open, widen, grade, gravel, surface with oil or other bituminous material, pave, repave, bridge, construct a viaduct upon or over, erect equipment for street lighting in, curb, gutter, drain, or otherwise improve any streets within platted land or subdivision for which a special assessment is to be levied, it shall declare in a resolution the necessity of the improvement… 

These statutes deal solely with that process.  By comparison, SDCL 31-13-51 and -52 speak in terms of “maintenance and repair” of township roads.  

SDRD Site– Something to note here is that road districts are created for maintenance and construction. Many road districts get in trouble because they conflate improvement with construction and maintenance. Road Districts can do improvements, but it is not the same process or funding as maintenance or construction, as mentioned above. This opinion is not talking directly about County Road Districts, SDCL 31-12A, however the overall process and correlation is useful.

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