31-12A-2. Application for organization of road district–Verified survey and map required.
Any person making application for the organization of a road district shall first obtain an accurate survey and map of the territory intended to be embraced within the limits of the road district, showing the boundaries and area of the district. The accuracy of the survey and map shall be verified by the affidavit of the surveyor.
The process for organizing a road district in South Dakota begins with the application process outlined in SDCL 31-12A-2. This statute establishes specific technical requirements intended to guarantee accurate boundary descriptions and a clear record for the county and all affected landowners.
The Requirement of an Accurate Survey and Map
Under SDCL 31-12A-2, the responsibility for defining the proposed district’s boundaries lies with the person initiating the application process:
“Any person making application for the organization of a road district shall first obtain an accurate survey and map of the territory intended to be embraced within the limits of the road district, showing the boundaries and area of the district.”
This mandates the creation of two specific documents:
- An Accurate Survey: A technical description of the land boundaries using standard survey methodology.
- A Map: A visual representation that correlates with the survey data.
The intent of the Legislature is to eliminate ambiguity. Before any petition is signed or presented to the county commissioners, the exact physical and legal description of the proposed taxing district must be established.
Verification by a Licensed Surveyor (Affidavit Requirement)
The statute imposes a significant quality control measure by requiring professional verification:
“The accuracy of the survey and map shall be verified by the affidavit of the surveyor.”
This requires a licensed surveyor to provide a sworn legal statement (an affidavit) confirming that the provided boundaries and area are correct and comply with South Dakota surveying standards. This step moves the application process from an informal “drawing on a napkin” to an official, verifiable legal document.
Legal Significance: A Mandatory Prerequisite
SDCL 31-12A-2 functions as a mandatory prerequisite. A Board of County Commissioners lacks the authority to consider a petition for incorporation if these documents are missing or if the affidavit is not provided.
South Dakota courts and the Attorney General have consistently held that requirements using the word “shall” create a mandatory duty. This statute ensures that the formation of any new political subdivision—which carries the authority to levy taxes and issue bonds—is founded on a precise and legally verified geographic basis, protecting both current and future landowners from disputes over boundaries and taxing jurisdiction.
The 2024 Attorney General Opinion: No Discretion
A significant question in South Dakota law was whether County Commissioners could deny a petition even if it met all requirements. This was settled by Attorney General Official Opinion 24-04, which addressed the interplay between the verified petition and the commission’s duty to act.
The Attorney General concluded that the commission’s role is purely administrative, not political. Quoting the opinion directly regarding the commissioners’ duty:
“Section 31-12A-6 confers no discretion on the board of county commissioners once the requirements of the chapter have been met.” — AG Official Opinion 24-04, p. 3
The Opinion further clarifies that if the petition is verified and compliant:
“The board is then required to ‘issue an order declaring that such territory shall, with the assent of the eligible voters… be an incorporated road district.'” — AG Official Opinion 24-04, p. 3
Summary of the Legal Framework
- Strict Compliance: The petitioner must provide a verified petition.
- Verification of Facts: The County Auditor and Commissioners must verify that the paperwork is technically correct. (If the auditors office and/or the state’s attorney state that the petition is complete and verified).
- Mandatory Action: Once that technical verification is complete, the commissioners cannot vote down the district based on their personal or policy preferences. They are legally compelled to issue the order allowing the voters to decide.
Significance for Landowners
This “no discretion” rule ensures that the right to form a road district is a statutory right belonging to the landowners, not a “favor” to be granted by the county. However, it also places the entire burden of oversight on the initial paperwork. If the survey or map required by Section 2 is inaccurate or unverified, that is the only legal ground on which a commission can stop the formation.
The “Withdrawal and Formation” Rule: Official Opinion 82-55
In Official Opinion No. 82-55, the Attorney General addressed whether an area could withdraw from a conservancy subdistrict. This opinion established a critical procedural precedent:
- No “Naked” Withdrawal: The opinion stated that there is generally no authority for an area to withdraw from a district unless it is doing so specifically to form a new district.
- The Concurrent Action: To exit an existing district, the landowners must simultaneously petition for the formation of a new one. The AG noted that while an area cannot simply “leave” into a vacuum, the same purpose is achieved by forming a new entity.
- Boundary Adjustments: The opinion also clarified that a boundary adjustment is another path for removal. Under SDCL 46-18-10, an area can be removed from a subdistrict via a petition process, but this typically involves submitting the question to all voters in the parent district, not just the withdrawing group.
Application to Road Districts (2026 Strategy)
This 1982 conservancy district opinion was used to interpret the “no overlap” rule in Official Opinion 2024-04 regarding road districts.
- The Overlap Prohibition: The Attorney General concluded that state law does not allow for the formation of a road district that overlaps an existing one.
- The Withdrawal Requirement: Because you cannot be in two districts at once, the 2024 opinion implies that to start a new district, your property must be withdrawn from the old one first.
- Procedural Path: Landowners can withdraw by petition or referendum through the existing road district or include verbiage in their new petition stating that the area is withdrawing from the old district specifically to form the new one.
Why this matters if you are already in a road district:
You can point to Official Opinion 82-55 as the “blueprint” for how to legally break away from a “closed loop” board. It confirms that the law doesn’t trap you forever; it simply requires you to be proactive in creating a new entity to take over the road responsibilities the old district has abandoned. This is the legal “escape hatch” for residents who are currently being ignored or retaliated against by their current trustees.
Take note- We have heard of a small group of residents following the steps laid out here, having discussed their intent with the state’s attorney, she neglected (either willfully or through incompetence) to clarify that the petition had to state clearly the intent to withdraw from the current road district in the forming of the second. When it came before the commissioners, the state’s attorney told them they did not have to accept the petition. She then pointed to the “you need to withdraw at the same time” rule, even though she knew all along that was the intent of the residents. As far as we know, those residents are still trapped in the original road district. Just be careful.
Conclusion- SDCL 31-12A-2 is the law that protects the “Consent of the Governed.” It ensures that the birth of a road district is a public act, rooted in a verified neighborhood need. It reminds us that in South Dakota, government doesn’t happen to us; it is supposed to happen by us.