12-30-91
ROSEBUD SIOUX INDIAN RESERVATION
TITLE 18: LAND USE
DRAFT 7
December 18, 1991
ROSEBUD SIOUX LAW AND ORDER CODE
TITLE 18: LAND USE
TABLE OF CONTENTS
CHAPTER ONE
LEGISLATIVE FINDINGS AND PURPOSE
Section 18-1-101. Sovereign Power to Regulate Land use ........ 1
Section 18-1-102. Lack of Adequate Land Use Regulations ....... 1
Section 18-1-103. Consensual Relations Between Nonmembers, the
Tribe, and Tribal Members ................... 2
Section 18-1-104. Tribal Environmental Liability .............. 3
Section 18-1-105. Benefits of Tribal Government ............... 3
Section 18-1-106. Territory, Persons and Property Affected .... 3
Section 18-1-107. Purpose ..................................... 4
Section 18-1-108. Sovereign Immunity .......................... 4
CHAPTER TWO
GENERAL PROVISIONS
Section 18-1-101. Definitions ................................. 6
(1) "Accessory Use of Building" ................. 6
(2) "Agriculture" ............................... 6
(3) "Alley" ..................................... 6
(4) "Apartment House" ........................... 6
(5) "Building" .................................. 6
(6) "Business" .................................. 6
(7) "Constitution" or "Tribal Constitution" ..... 6
(8) "Council" or "Tribal Council" ............... 6
(9) "Commission" ................................ 6
(10) "Department" ................................ 6
(11) "Director" .................................. 7
(12) "Dwelling" .................................. 7
(13) "Dwelling Unit" ............................. 7
(14) "Dwelling, Single Family" ................... 7
(15) "Dwelling, Two Family" ...................... 7
(16) "Dwelling, Multiple Family" ................. 7
(17) "Farming Activities" ........................ 7
(18) "Forest Activities" ......................... 7
(19) "Grade" ..................................... 8
(20) "Home Occupation" ........................... 8
(21) "Immediate Family" .......................... 8
(22) "Institution" ............................... 8
(23) "Lot" ....................................... 8
(24) "Lot Area" or "Parcel Area" ................. 8
(25) "Lot, Corner" ............................... 8
(26) "Lot, Inside or Interior" ................... 8
(27) "Lot Key" ................................... 8
(28) "Lot Line, Front" ........................... 9
(29) "Lot Line, Rear" ............................ 9
(30) "Lot Line, Side" ............................ 9
(31) "Lot of Record" ............................. 9
(32) "Lot, Reversed Corner" ...................... 9
(33) "Lot Through" ............................... 9
(34) "Lot Width" ................................. 9
(35) "Notice" .................................... 9
(36) "Percentage of Lot Occupancy" ............... 10
(37) "Person" .................................... 10
(38) "Preside" ................................... 10
(39) "Property" .................................. 10
(40) "Reservation" ............................... 10
(41) "Right Of Way, Private" ..................... 10
(42) "Right Of Way, Public" ...................... 11
(43) "Sign" ...................................... 11
(44) "State" ..................................... 11
(45) "Structural Alterations" .................... 11
(46) "Structure" ................................. 11
(47) "Tribal Appellate Court" .................... 11
(48) "Tribal Court" .............................. 11
(49) "Tribal Land Enterprise" .................... 11
(50) "Tribal member" or "member" ................. 11
(51) "Waterway" .................................. 11
(52) "Yard" ...................................... 11
(53) "Yard, Front" ............................... 11
(54) "Yard, Rear" ................................ 12
(55) "Yard, Side" ................................ 12
CHAPTER THREE
ZONING MAPS
Section 18-3-101. Establishment of Zones: Provision for Official
Zoning Maps ................................. 13
(1) Official Zoning Maps ........................ 13
(2) Replacement of Official Zoning Maps ......... 13
Section 18-3-102. Interpretation of Zone Boundaries ........... 14
CHAPTER FOUR
MINIMUM REQUIREMENTS
Section 18-4-101. Code as Minimum Requirements ................ 15
CHAPTER FIVE
LAND USE AND ENVIRONMENT COMMISSION
Section 18-5-101. Creation of Commission ...................... 16
Section 18-5-102. Number and Selection of Commissioners ....... 16
Section 18-5-103. Qualifications of Commissioners ............. 16
Section 18-5-104. Terms of Office ............................. 16
Section 18-5-105. Oath of Office .............................. 17
Section 18-5-106. First Commission ............................ 17
Section 18-5-107. Vacancies ................................... 17
Section 18-5-108. Resignation ................................. 17
Section 18-5-109. Removal ..................................... 17
(1) President ................................... 18
(2) Vice President .............................. 18
(3) Secretary ................................... 18
(4) Treasurer ................................... 18
Section 18-5-110. Offices of the Commission ................... 18
Section 18-5-111. Compensation of Commissioners ............... 18
Section 18-5-112. Quorum ...................................... 19
Section 18-5-113. Majority Vote ............................... 19
Section 18-5-114. General Procedures of the Commission ........ 19
Section 18-5-115. Commission Account Established .............. 19
Section 18-5-116. Jurisdiction and Powers of Commission ....... 20
Section 18-5-117. Hearings; Examiner .......................... 21
Section 18-5-118. Appointment of Examiner; Power of Examiner .. 21
Section 18-5-119. Regulations of the Commission ............... 21
Section 18-5-120. Commission Employees and Expenses ........... 22
Section 18-5-121. Bonds ....................................... 22
Section 18-5-122. Records of the Commission ................... 23
CHAPTER SIX
LAND USE AND ENVIRONMENT DEPARTMENT
Section 18-6-101. Establishment ............................... 24
Section 18-6-102. Director .................................... 24
Section 18-6-103. Duties of the Director ...................... 24
Section 18-6-104. Director of Water Resources ................. 25
Section 18-6-105. Duties of the Director of Water Resources ... 25
Section 18-6-106. Department Employees ........................ 25
CHAPTER SEVEN
ZONING CHANGES
Section 18-7-101. Initiation of Zoning Change ................. 26
Section 18-7-102. Notice of Proposed Zoning Change ............ 26
Section 18-7-103. Public Participation In Zoning Changes ...... 27
Section 18-7-104. Commission Action and Effective Date ........ 27
Section 18-7-105. Council Retention of Authority .............. 27
CHAPTER EIGHT
NON-CONFORMING LOTS, USES AND STRUCTURES
Section 18-8-101. Intent ...................................... 28
Section 18-8-102. Non-Conforming Lots of Record ............... 28
Section 18-8-103. Non-Conforming Uses of Land ................. 29
Section 18-8-104. Non-Conforming Structure .................... 29
Section 18-8-105. Non-Conforming Uses of Structure and Land ... 29
CHAPTER NINE
LAND USE AND BUILDING PERMITS
Section 18-9-101. Activities Not Requiring Permits ........... 31
Section 18-9-102. Activity Requiring Permit .................. 31
(1) Building Permit ............................ 31
(2) Conditional Use Permit ..................... 31
Section 18-9-103. Building and Conditional Use Permit
Applications ............................... 31
Section 18-9-104. Grant of Building Permit ................... 31
(1) Standards for Decision ..................... 31
(2) Notice and Effectiveness ................... 32
(3) Appeal to Commission ....................... 32
(4) Scope of Review; Relief Available .......... 32
Section 18-9-105. Action on Applications for Conditional Use
Permits .................................... 32
(1) Notice ..................................... 32
(2) Hearing .................................... 32
(3) Director's Decision ........................ 32
(4) Date of Effectiveness ...................... 32
(5) Appeal to Commission ....................... 33
(6) Scope of Review; Relief Available .......... 33
(7) Expiration of Permit ....................... 33
CHAPTER TEN
LAND DIVISION PERMITS
Section 18-10-101. Permits Required ........................... 34
Section 18-10-102. Permit Applications ........................ 34
Section 18-10-103. Notice ..................................... 34
Section 18-10-104. Hearing on Applications .................... 34
Section 18-10-105. Action on Application and Appeal ........... 34
(1) Director's Action .......................... 34
(2) Notice and Effectiveness ................... 35
(3) Appeal ..................................... 35
(4) Scope of Review; Relief Available .......... 35
CHAPTER ELEVEN
VARIANCES
Section 18-11-101. Authority to Grant ......................... 36
Section 18-11-102. Variance Application Procedure ............. 36
Section 18-11-103. Hearings ................................... 37
Section 18-11-104. Grant of Variance .......................... 37
Section 18-11-105. Effective Date of Variance ................. 38
Section 18-11-106. Term of Variance ........................... 38
(1) Variance Right Must Be Exercised To Be
Effective .................................. 38
(2) Cessation of Variance ...................... 38
(3) Transfer of Variance ....................... 38
Section 18-11-107. Appeal to Commission ....................... 38
(1) Time to File Appeal ........................ 38
(2) Scope of Review; Relief Available .......... 38
CHAPTER TWELVE
RESIDENTIAL ZONE
Section 18-12-101. Purposes ................................... 39
Section 18-12-102. Uses ....................................... 39
Section 18-12-103. Transitional Uses .......................... 40
Section 18-12-104. Area Regulation ............................ 40
(1) Lot Size and Percentage of Coverage ........ 40
(a) Single Family Dwelling ................ 40
(b) Two-Family Dwelling ................... 40
(c) Multiple-Family Dwelling .............. 40
(2) Lot Sizes .................................. 40
(3) Set-Back Requirements ...................... 41
(a) Front ................................. 41
(b) Side .................................. 41
(c) Rear .................................. 41
(4) Height Requirements ........................ 41
Section 18-12-105. Sign Regulations ........................... 41
CHAPTER THIRTEEN
COMMERCIAL ZONE
Section 18-13-101. Purposes ................................... 43
Section 18-13-102. Uses ....................................... 44
Section 18-13-103. Area Regulation ............................ 44
(1) Lot Size and Percent of Coverage ........... 44
(2) Set-Back Requirements ...................... 44
(a) Front ................................. 44
(b) Side .................................. 44
(c) Rear .................................. 44
(3) Height Requirements ........................ 44
Section 18-13-104. Sign Regulations ........................... 45
CHAPTER FOURTEEN
INDUSTRIAL ZONE
Section 18-14-101. Purposes ................................... 46
Section 18-14-102. Uses ....................................... 46
Section 18-14-103. Area Regulations ........................... 46
(1) Setback .................................... 46
(2) Landscaping ................................ 47
(3) Additional Limitations ..................... 47
Section 18-14-104. Other Regulations .......................... 47
(1) Right-of-Way Preservation .................. 47
(2) Parking and Loading Space .................. 47
CHAPTER FIFTEEN
PLANNED UNIT DEVELOPMENT
Section 18-15-101. Purpose .................................... 48
Section 18-15-102. Definitions ................................ 48
(1) "Planned Unit Development" ................. 48
(2) "Common Open Space" ........................ 48
Section 18-15-103. Limitations ................................ 48
Section 18-15-104. Application For Planned Unit Development
Zone ....................................... 49
Section 18-15-105. Hearing on Application ..................... 49
Section 18-15-106. Public Participation In Establishing A
Planned Unit Development ................... 50
Section 18-15-107. Commission Action and Effective Date ....... 50
Section 18-15-108. Commission's Decision ...................... 50
Section 18-15-109. Final Development Plan and Program ......... 51
(1) Plan Elements .............................. 51
(2) Program Elements ........................... 52
(3) Project Densities .......................... 52
(4) Common Open Space Requirements ............. 53
(a) Common Open Space in a Planned Unit
Development ........................... 53
(b) Common Open Space Improvement ......... 53
(5) Retention and Maintenance of Common Open
Space ...................................... 53
Section 18-15-110. Modifications to Development ............... 54
(1) Major Modification ......................... 54
(2) Minor Modification ......................... 54
Section 18-15-111. Review of Planned Unit Development Rezone .. 54
Section 18-15-112. Review Hearing Regarding A Planned Unit
Development ................................ 54
Section 18-15-113. Commission Action and Effective Date ....... 55
Section 18-15-114. Reconstruction of Buildings or Improvements. 55
Section 18-15-115. Any Waterway ............................... 55
CHAPTER SIXTEEN
FOREST CONSERVATION ZONE
Section 18-16-101. Purpose .................................... 56
Section 18-16-102. Allowed Uses ............................... 56
Section 18-16-103. Conditional Uses ........................... 56
Section 18-16-104. Criteria for Conditional Uses .............. 57
Section 18-16-105. Divisions of Land .......................... 58
Section 18-16-106. Signs ...................................... 58
CHAPTER SEVENTEEN
FOREST DOMINANT RESIDENTIAL ZONE
Section 18-17-101. Purpose .................................... 59
Section 18-17-102. Permitted Uses ............................. 59
Section 18-17-103. Conditional Uses ........................... 59
Section 18-17-104. Criteria For Conditional Uses .............. 59
Section 18-17-105. Signs ...................................... 60
CHAPTER EIGHTEEN
PRIMARY AGRICULTURAL ZONE
Section 18-18-101. Purpose .................................... 61
Section 18-18-102. Uses ....................................... 61
Section 18-18-103. Conditional Uses ........................... 62
Section 18-18-104. Criteria For Conditional Uses .............. 62
Section 18-18-105. Division of Land ........................... 63
Section 18-18-106. Signs ...................................... 63
CHAPTER NINETEEN
FLOOD PLAINS OVERLAY ZONE
Section 18-19-101. Purposes ................................... 64
Section 18-19-102. Uses ....................................... 64
Section 18-19-103. Flood Plain Development Permit ............. 64
Section 18-19-104. Permit Approval ............................ 65
CHAPTER TWENTY
HISTORIC PRESERVATION ZONE
Section 18-20-101. Purpose .................................... 66
Section 18-20-102. Allowed Uses ............................... 66
Section 18-20-103. Historic Structures ........................ 66
Section 18-20-104. Sign ....................................... 67
CHAPTER TWENTY-ONE
GENERAL ENVIRONMENTAL PROTECTION OVERLAY ZONE
Section 18-21-101. Purposes ................................... 68
Section 18-21-102. Permitted Uses ............................. 68
Section 18-21-103. Conditional Uses ........................... 68
Section 18-21-104. Criteria for Conditional Uses .............. 68
CHAPTER TWENTY-TWO
RESERVATION NATURAL AND CULTURAL RESOURCE ZONE
Section 18-22-101. Purposes ................................... 69
Section 18-22-102. Uses Permitted ............................. 69
Section 18-22-103. Access Restrictions and Permits ............ 69
CHAPTER TWENTY-THREE
SPECIAL PROPERTY USES
Section 18-23-101. General Provisions ......................... 71
Section 18-23-102. List of Special Uses ....................... 71
(1) Automobile Dismantling, Wrecking or Junk
Yards ...................................... 71
(2) Cemeteries ................................. 71
(3) Charitable Institutions and Orphanages ..... 71
(4) Churches ................................... 71
(5) Crematories, Columbaria and Mausoleums ..... 71
(6) Drive-In Theaters, Race Tracks or Other
Outdoor Commercial Amusements of a Permanent
Nature involving Large Assembly of People .. 72
(7) Fertilizer Manufacturing Plants ............ 72
(8) Fraternal Organizations, Lodges, Grange
Halls, and Clubs ........................... 72
(9) Hospitals, Sanitariums, Nursing Homes and
Institutions and Philanthropic and
Eleemosynary Uses, Other Than Correction ... 72
(10) Livestock Feeding or Sales Yards ........... 72
(11) Mining, Including Quarrying, Mineral
Extraction, Exploration, etc., Gasification
Plants, Liquidification Plants, Steam
Generation Plants, and any other coal
conversion facility, slurry pipe lines ..... 72
(12) Mobile Home Parks .......................... 72
(13) Public Buildings ........................... 72
(14) Public Utilities ........................... 73
(15) Radio and Television Broadcasting Stations
and Transmitters ........................... 73
(16) Rendering of Animal Fat, Bones, Meat Scraps,
etc ........................................ 73
(17) Sanitary Land Fill ......................... 73
(18) Schools .................................... 73
(19) Sewage Disposal or Treatment Plants ........ 73
(20) Slaughter Houses or Meat Packing Plants .... 73
(21) Trailer Park, Court, Camps ................. 73
Section 18-23-103. Area Regulations ........................... 73
(1) Yards ...................................... 73
(2) Height and Area Regulations ................ 73
Section 18-23-104. Special Use Application Procedure .......... 74
Section 18-23-105. Hearings ................................... 74
Section 18-23-106. Grant of Special Use Permit ................ 75
Section 18-23-107. Effective Date of Special Use Permit ....... 75
Section 18-23-108. Term of Special Use Permit ................. 76
(1) Special Use Permit Right Must Be Exercised
To Be Effective ............................ 76
(2) Cessation of Special Use Permit ............ 76
(3) Transfer of Special Use Permit ............. 76
Section 18-23-109. Appeal to Commission ....................... 76
(1) Time to File Appeal ........................ 76
(2) Scope of Review; Relief Available .......... 76
CHAPTER TWENTY-FOUR
OFF-STREET PARKING AND LOADING
Section 18-24-101. General Provisions ......................... 77
CHAPTER TWENTY-FIVE
ENFORCEMENT
Section 18-25-101. Initiation of Enforcement By Director ...... 80
(1) Determination of Violation; Note ........... 79
(2) Contents of Notice ......................... 79
(3) Time for Compliance ........................ 79
Section 18-25-102. Assessment of Civil Penalty ................ 79
(1) Determination and Recommendation of Civil
Penalty .................................... 79
(2) Notice of Civil Penalty; Filing With
Commission ................................. 79
(3) Notice of Penalty Hearing .................. 80
(4) Hearing Before Commission .................. 80
(5) Action By The Commission ................... 80
(6) Action to Recover Penalty .................. 80
Section 18-25-103. Additional Relief .......................... 80
Section 18-25-104. Purpose of Civil Penalties ................. 80
Section 18-25-105. Criminal Enforcement ....................... 80
CHAPTER TWENTY-SIX
APPEALS
Section 18-26-101. Initiation of Appeal ....................... 81
(1) Final Action Appealable .................... 81
(2) Time For Appeal ............................ 81
(3) Form of Notice ............................. 81
Section 18-26-102. Waiver of Sovereign Immunity ............... 81
Section 18-26-103. Relief Pending Review ...................... 81
Section 18-26-104. Scope of Review; Relief Available .......... 81
Section 18-26-105. Appeal to Tribal Appellate Court ........... 82
Section 18-26-106. Scope of Review in Tribal Appellate Court;
Relief Available ........................... 82
ROSEBUD SIOUX LAW AND ORDER CODE
TITLE 18: LAND USE
CHAPTER ONE
LEGISLATIVE FINDINGS AND PURPOSE
Section 18-1-101. Sovereign Power to Regulate Land Use.
The power to regulate land use is an inherent and essential
part of the authority of any reservation tribal government. This
power is therefore an aspect of the retained sovereignty of Indian
tribes, except where it has been limited or withdrawn by federal
law. The Rosebud Sioux Tribe is a sovereign Indian tribe organized
pursuant to the Act of June 18, 1934, 48 Stat. 984, as amended, and
governed pursuant to a Constitution and ByLaws ratified on November
23, 1935, and approved by the Secretary of the Interior, Harold L.
Ickes, on December 16, 1935, as amended from time to time
thereafter. Pursuant to the Constitution and ByLaws, as amended,
the Rosebud Sioux Tribal Council is the governing body of the
Rosebud Sioux Tribe. This Title is enacted pursuant to the
inherent sovereign tribal powers expressly delegated to the Tribal
Council in Article IV, Section 1(c), (h), (i), (k), (m), (t) and
(u) of the Tribal Constitution, which authorize the Tribal Council
to manage and otherwise deal with tribal lands and property, to
exclude by ordinance from the restricted lands of the Reservation
persons not legally entitled to reside therein, to promulgate and
enforce ordinances providing for the maintenance of law and order
and the administration of justice on the Reservation, to regulate
the conduct of trade and the use and disposition of property upon
the Reservation, to regulate tribal agencies and tribal officials,
and to delegate to subordinate boards or tribal officials the
forgoing powers, subject to review by the Council.
Section 18-1-102. Lack of Adequate Land Use Regulations.
The Rosebud Reservation, tribally-owned trust lands and
allotted trust lands owned by enrolled tribal members lie within
Todd, Tripp, Mellette, Gregory and Lyman Counties, South Dakota.
Todd County, in which the majority of the Reservation lies, has no
land use regulations of any kind. The remaining four counties are
similarly without any land use regulations.
The Reservation is checkerboarded with both trust land and
nontrust land and within the historical boundaries of the Rosebud
Reservation are substantial populations of both Indians and nonIndians.
The Reservation was established as an agricultural
reservation for farming and ranching purposes to provide a
permanent homeland for the Tribe. Since establishment of the
Reservation by the Treaty, the Tribe has maintained the essential
character of the entire Reservation; however as additional
residential, commercial, governmental and agricultural activities
multiply, the need for adequate land use controls grows ever more
serious. Tribal land and tribal members are the most precious
assets of the tribe. The Reservation is too valuable a tribal
resource to be damaged by uncontrolled development and use of land
with their attendant problems.
The Council finds that such uncontrolled use of land has a
demonstrably serious impact which imperils the economic security,
health, welfare and general well-being of the Tribe, its members,
and all residents of the Reservation, resulting in:
(1) gradual loss of the essential character of the
Reservation,
(2) destruction of the historical and cultural values and
traditions of the Tribe,
(3) deterioration of the aesthetics of the Reservation,
(4) increased transportation problems,
(5) increased inability of the infrastructure of the
Reservation to provide governmental services for the population.
(6) increased air, water and solid waste disposal pollution,
(7) an adverse affect upon the Reservation school system,
(8) increased contamination of drinking water from the
Ogallala Aquifer and surface water supplies, and
(9) deterioration of the standards of living, quality of life,
welfare and well-being of all Reservation residents, whether tribal
members or not.
Section 18-1-103. Consensual Relations Between Nonmembers, the Tribe,
and Tribal Members.
The Council finds that every person who uses land, whether
trust land or nontrust land, within the Reservation, enters into
consensual relations, commercial dealings and contracts with
residents of the Reservation, Indian and non-Indian, and with the
Tribe and that all such uses of land have a demonstrably serious
impact which imperils the economic security, health, welfare and
general well-being of the Tribe, its members, and all residents of
the Reservation.
18-2
Section 18-1-104. Tribal Environmental Liability.
The Rosebud Sioux Tribe is subject to certain
liabilities under federal laws, including the Solid Waste
Disposal Act, Pub. L. 89-272, October 20, 1965, 79 Stat. 997,
the Resource Conservation and Recovery Act (RCRA), Pub. L. 94-580,
October 21, 1976, 90 Stat. 2795, and the Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA), Pub. L. ________,
(date), _____Stat. ______, for any discarded materials on the
Reservation, including solid wastes; liquid and contained gaseous
wastes; semi-solid wastes; sludges; and toxic, lethal and hazardous
wastes.
Because the five counties within which the Reservation and
tribally-owned and individually-owned trust lands lie do not have
zoning codes, it is imperative that the Tribe regulate all
discarded materials within its jurisdiction.
Section 18-1-105. Benefits of Tribal Government.
Among the benefits provided by the tribal government to tribal
members and to non-members residing or conducting business within
the Rosebud Reservation are the following:
(1) The provision of a civilized form of government and
civilized environment within which to reside and do business;
(2) The provision of governmental services, including sewer
and water systems, police and fire protection, and a Tribal Court
system of general jurisdiction;
(3) The promotion and regulation of economic activities within
the Tribe's sovereign jurisdiction; and
(4) The orderly development and protection of the Reservation
lands, resources and communities.
Section 18-1-106. Territory, Persons and Property Affected.
To the extent not prohibited by federal law, this Title shall
apply to the following.
(1) The Rosebud Sioux Reservation within the historical
boundaries of the Reservation established in Section Two of the Act
of March 2, 1889, 25 Stat. 888, including all lands, islands,
waters, roads, and bridges, or any interests therein, whether in
trust or non-trust status and notwithstanding the issuance of any
patent or right-of-way, and such other lands, islands, waters or
any interest therein thereafter added to the Reservation;
(2) All trust or restricted land of the Tribe or any enrolled
member of the Tribe situate within the historical boundaries of the
Reservation established in Section Two of the Act of March 2, 1889,
25 Stat. 888, including all lands, islands, waters, roads, or any
interests therein, including Tripp, Mellette, Gregory and Lyman
Counties; and
(3) All persons and property within any geographical area
referred to in Subsections (1) and Section 18-2-101(2), (40) (b) that
is subject to the jurisdiction and governmental power of the Tribe.
Section 18-1-107. Purpose.
The Council hereby declares it to be in the public interest
that all use of land, whether trust land or nontrust land, by
enrolled tribal members and nonmembers be regulated as hereinafter
provided in order to:
(1) encourage the most appropriate use of the land;
(2) protect the sacred, cultural, social and economic
stability of residential, agricultural, commercial, industrial,
forest, wildlife, and environmentally sensitive lands, water
resources, and other areas within the Rosebud Reservation, and to
assure the orderly use of such areas;
(3) prevent the menace to the public safety resulting from the
improper location of buildings and land uses;
(4) facilitate the purpose and objectives of the By-laws,
Tribal Land Enterprise, Rosebud Indian Reservation; and
(5) otherwise promote the public health, safety, morals, and
general welfare in accordance with the treaty rights reserved by
the Rosebud Sioux Tribe.
Section 18-1-108. Sovereign Immunity.
The Rosebud Sioux Tribe, and all its constituent parts,
including the Land Use and Environment Commission established
pursuant to this title, are immune from suit in any jurisdiction,
except to the extent that such immunity has been expressly and
unequivocally waived by the Tribe in this Title or elsewhere.
Nothing in this Title shall be construed as waiving the sovereign
immunity of the Tribe or any of its constituent parts, including
the Land Use and Environment Commission, except as provided in
Chapter Eight. Nothing in this Title, nor any appeal to the Tribal,
Court, nor any enforcement action taken pursuant to this title,
shall constitute a waiver of such sovereign immunity as to any
claim for damages, attorneys fees or costs, regardless of whether
(ILLEGIBLE PAGE)
CHAPTER TWO
GENERAL PROVISIONS
Section 18-2-101. Definitions.
In this Title and in title 19, except where otherwise
specifically provided or the context otherwise requires, the
following terms and expressions shall have the following meanings.
(1) "Accessory Use of Building" means a building, part of a
building or structure or use which is subordinate to, and the use
of which is incidental to that of the main building, structure or
use on the same lot.
(2) "Agriculture" means the tilling of the soil, the raising
of crops, horticulture, livestock farming, dairying and/or animal
husbandry.
(3) "Alley" means a public thoroughfare or way which has a
width of not more than 20 feet which affords only a secondary means
of access to abutting property.
(4) "Apartment House" means a building or portion of a
building, designed for occupancy by three or more families living
independently of each other and containing three or more dwelling
units.
(5) "Building" means any structure built for the support,
shelter or enclosure of persons, animals or chattels, and when
separated by division walls without openings from the ground up,
each portion of such structure shall be deemed a separate building.
(6) "Business" means any activity engaged in by any person, or
caused to be engaged in by any person, with the object of profit,
gain, benefit, advantage, or other ascension to wealth, either
direct or indirect.
(7) "Constitution" or "Tribal Constitution" means the
Constitution and ByLaws of the Rosebud Sioux Tribe of South Dakota,
ratified on November 23, 1935, and approved by the Secretary of the
Interior, Harold L. Ickes, on December 16, 1935, as amended from
time to time thereafter.
(8) "Council" or "Tribal Council" means the Rosebud Sioux
Tribal Council established as the governing body of the Rosebud
Sioux Tribe in the Tribal Constitution.
(9) "Commission" means the Land Use and Environment Commission
established under this Title.
(10) "Department" means the Land Use and Environment
Department established under this Title.
(11) "Director" means the Tribal Director appointed
pursuant to Chapter Six of this Title or, if with respect to
matters governed by Chapter six of Title 19 only and enforcement
thereof, the Director of Water Resources.
(12) "Dwelling" means a building or portion thereof
designed exclusively for residential purposes, including one
family, two family, and multiple family dwellings, but shall not
include hotels, auto courts, boarding houses and lodging houses.
(13) "Dwelling Unit" means one or more rooms in a dwelling
or apartment house or apartment hotel designed for occupancy by one
family for living or sleeping purposes, and having only one
kitchen.
(14) "Dwelling, Single Family" means a detached building
designed exclusively for occupancy by one family and containing one
dwelling unit.
(15) "Dwelling, Two Family" means a building designed
exclusively for occupancy by two families living independently of
each other, and containing two dwelling units. Such definition
shall also include the term "Duplex."
(16) "Dwelling, Multiple Family" means a building, or
portion thereof, designed for occupancy by three or more families
living independently of each other, and containing three or more
dwelling units.
(17) "Farming Activities" mean all acts or human efforts
for the raising of crops, horticultural endeavors, soil protection
or preparation efforts, or ground enhancement activities for
cultivation of fruits, vegetables, flowers, grasses, plants or
other crops which occur within the exterior boundaries of the
Reservation, including activities involving the use of pesticides,
fertilizers, chemical enhancers or other products or natural
substances utilized in the raising of corps or other vegetal
species.
(18) "Forest Activities" mean all acts or human efforts for
the raising or for the production enhancement of trees, plants or
other forest crops, horticultural endeavors for the production of
trees or other fiber producing vegetal species (excluding cotton),
erosion control efforts and other activities for soil protection,
preparation or conservation which occurs within the exterior
boundaries of the Reservation, including activities involving the
use of pesticides, fertilizers, chemical enhancers or other
products or natural substances utilized in the replanting or
raising of trees, forest crops or other vegetal species (other than
those activities included under "Farming activities" above).
(19) "Grade" means the average of the finished ground level
at the center of all walls of a building. In case walls are
parallel to and within five feet of the street side of a sidewalk,
the above-ground level shall be measured at the sidewalk.
(20) "Home Occupation" means any occupation of a service
character which is clearly secondary to the main use of the
premises as a dwelling place, and does not change the character
thereof or have any exterior evidence of such secondary use. Any
such occupation shall be carried on or conducted only by members of
a family residing in the dwelling and in connection with which
there is kept no stock in trade or commodity for sale upon the
premises; provided, however, that the keeping of stock in trade or
commodities for sale may be done by any enrolled tribal member
engaged in the manufacture, sale and repair of Indian arts and
crafts.
(21) "Immediate family" means brother, sister, son,
daughter, mother, father, husband, wife, step-brother, step-sister,
half brother, half sister, or brother, sister, son, daughter,
mother or father by adoption.
(22) "Institution" means an establishment maintained and
operated by a society, corporation, individual, foundation or
public agency for the purpose of providing charitable, social,
educational, or similar services to the public, groups, or
individuals.
(23) "Lot" means a fractional part of subdivided lands
having fixed boundaries, being of sufficient area and dimension to
meet minimum zoning requirements for width and area. The term
shall include "Tracts" or "Parcels".
(24) "Lot Area" or "Parcel Area" means the total horizontal
area within the boundary lines of a lot or a parcel. For the
purposes of determining area in the case of an irregular triangular
or cone-shaped lot or parcel, a line 10 feet in length within the
lot or parcel and farthest removed from the front lot line and at
right angles to the line constituting the depth of such lot or
parcel shall be used as the rear lot line.
(25) "Lot, Corner" means a lot situated at the intersection
of two or more streets, provided the angle of the intersection of
the street margins does not exceed 135 degrees.
(26) "Lot, Inside or Interior" means a lot other than a
corner lot or reversed corner lot.
(27) "Lot Key" means the first lot to the rear of a
reversed corner lot and whether or not separated by an alley.
(28) "Lot Line, Front" means in the case of interior lot,
the property line separating the lot form the street. In the case
of a corner lot, the front line shall be the property line
separating the narrowest street frontage of the lot from the
street.
(29) "Lot Line, Rear" means the property line which is
opposite and most distant from the front lot line. For the purpose
of establishing the rear lot line of a triangular or trapezoidal
lot, or of a lot the rear line of which is formed by two or more
lines; the following shall apply:
(a) For a triangular or cone-shaped lot a line 10
feet in length within the lot and farthest removed from the
front line at right angles to the line comprising the depth of
such lot shall be used at the rear lot line.
(b) In the case of a trapezoidal lot, the rear line
of which is not parallel to the front lot line, the rear lot
line shall be deemed to be a line at right angles to the line
comprising the depth of such lot and drawn through a point
bisecting the recorded rear lot line.
(c) In the case of a pentagonal lot, the rear
boundary of which includes an angle shall be employed for
determining the rear lot line in the same manner as prescribed
for a triangular lot.
(30) "Lot Line, Side" means any lot boundary line not a
front line lot or a rear lot line.
(31) "Lot of Record" means a lot shown on an officially
recorded plot or subdivision, or a parcel of land the deed of which
is officially recorded, considered as a unit of property, and
described by metes and bounds.
(32) "Lot, Reversed Corner" means a corner lot, the side
street line of which is substantially a continuation of the front
lot line of the lot upon which the rear of such corner lot abuts.
(33) "Lot Through" means an interior lot having frontage on
two streets.
(34) "Lot Width" means the horizontal distance between the
side lot lines measured at right angles to the line comprising the
depth of the lot at a point midway between the front and rear lot
line, provided that the length of the line constituting the rear
line of the required front yard shall never be less than 50 feet.
(36) "Percentage of Lot Occupancy" means the percentage of
a lot of parcel as herein defined, which is occupied as building
area.
(37) "Person" means any individual, receiver, assignee,
trustee in bankruptcy, trust, estate, firm, partnership, joint
venture, club, company, joint stock company, business trust,
investment trust, municipal corporation, corporation, association,
syndicate, pool, organization, society, political entity, or any
group of individuals acting as a unit, whether mutual, cooperative,
fraternal, nonprofit, or otherwise.
(38) "Preside" means to occupy the place of authority of,
direct, control, or regulate proceedings of, exercise
superintendence or guidance of, an organization, meeting or
activity.
(39) "Property" means realty and personalty, of whatever
nature, including fixtures, money, claims, intangible rights and
interests in property.
(40) "Reservation" means:
(a) The Rosebud Sioux Reservation, including all
lands, islands, waters, roads, and bridges or any interests
therein, whether in trust or non-trust status and
notwithstanding the issuance of any patent or right-of-way,
within the boundaries of the Reservation as established in
Section Two of the Act of March 2, 1889, 25 Stat. 888, and
such other lands, islands, waters or any interest therein
thereafter added to the Reservation at any time;
(b) All trust or restricted land of the Tribe or any
enrolled member of the Tribe situate within the historical
boundaries of the Reservation established in Section Two of
the Act of March 2, 1889, 25 Stat. 888, including all lands,
islands, waters, roads, or any interests therein, including
Tripp, Mellette, Gregory and Lyman Counties;
(c) All persons and property within any geographical
area referred to in Subsections (40) (a) and (2), (40) (b)
above, that is subject to the jurisdiction and governmental
power of the Tribe.
(41) "Right Of Way, Private" means every way, lane, road,
street, and every way or place on the Reservation in private
ownership and used for travel by the owner or owners or those
persons having express or implied permission from the owner or
owners, but not by other persons.
persons having express or implied permission from the owner or
owners, but not by other persons.
(42) "Right Of Way, Public" means every way, lane, road,
street and every way or place on the Reservation open as a matter
of right to public vehicular travel.
(43) "Sign" means any outdoor advertising display or
outdoor advertising structure designed and placed so as to be
readable principally from the outside.
(44) "State" means the State of South Dakota.
(45) "Structural Alterations" means any change in the
support in members of a building such as foundations, bearing
walls, columns, beams, floor or roof joists, girders, or rafters,
or changes in the roof or exterior lines if such changes result in
any enlargement of the building.
(46) "Structure" means anything constructed or erected
which requires location on the ground or attached to something
having a location on the ground but not including fences or walls
used as fences less than six feet in height.
(47) "Tribal Appellate Court" means the court of that name
established under the provisions of Chapter One of Title 9 of this
Code, and the Judges of that Court, collectively and and individually,
serving and acting in that office and capacity.
(48) "Tribal Court" means the court of that name
established under the provisions of Chapter One of Title 9 of this
Code, and the Judges of that Court, collectively and individually,
serving and acting in that office and capacity.
(49) "Tribal Land Enterprise" means the Tribal Land
Enterprise established by the Tribe pursuant to the Bylaws, Tribal
Land Enterprise, Rosebud Indian Reservation adopted by the Tribal
Council April 5-7, 1943, approved by the Secretary of the Interior
July 8, 1955, as amended.
(50) "Tribal member" or "member" means an individual Indian
who is enrolled in the Rosebud Sioux Tribe.
(51) "Waterway" means any creek, stream, river or lake
within the boundaries of the Reservation, including man-made
canals, ditches, or lakes.
(52) "Yard" means an open space other than a court, on the
same lot with a the building an unoccupied from the ground upward.
(53) "Yard, Front" means the required yard extending along
the entire length of the front line of the lot which is the street
line, and measured from the building to the street.
(54) "Yard, Rear" means the required yard extending along
the entire width of the lot at the rear of a building, measured
from the building in the direction opposite from the front yard.
(55) "Yard, Side" means the required yard between the side
wall of a building and the side line of the lot, measured from the
building to the side line.
(56) "Zone" means a geographical area given a specific land
use designation pursuant to Chapter 12-22 of this Title.
CHAPTER THREE
ZONING MAPS
Section 18-3-101. Establishment of Zones: Provision for Official
Zoning Maps.
(1) Official Zoning Maps.
(a) The Reservation is hereby divided into zones.
Such zones shall be noted on the five Official Zoning Maps
which, together with all explanatory matter thereon, are
hereby adopted by reference and declared to be a part of this
Title. There shall be a separate Official Zoning Map for each
South Dakota county in which the Rosebud Sioux Reservation is
located, including Todd County, Tripp County, Mellette County,
Gregory County, and Lyman County. A new Official Zoning Map
shall be adopted and declared to be a part of this Title for
every new South Dakota county in which the Rosebud Sioux
Reservation is located.
(b) The Official Zoning Maps, comprising several
sections, shall be as identified by the signature of the
Chairman of the Council, together with the date of adoption of
this title.
(c) If, in accordance with the provisions of this
Title, a change is made in zone boundaries or other matter
portrayed on an Official Zoning Map, such change shall be made
on the Official Zoning Map promptly after the change has been
approved.
(d) No change of any nature shall be made in an
Official Zoning Map or matter shown thereon except in
conformity with the procedures set forth in this Title. Any
unauthorized change of whatever kind by any person or person
shall be considered a violation of this Title and punishable
as provided by applicable law.
(e) The Official Zoning Maps shall be located in the
Office of the Planning Department, with certified copies in
the Tribal Chairman's office. Regardless of the existence of
purported copies of the Official Zoning Maps which may from
time to time be made or published, the Official Zoning Maps
shall be the final authority as to the current zoning status
of all property within the territory described in Section
18-1-106 of this title.
(2) Replacement of Official Zoning Maps. In the event that
any Official Zoning Map becomes damaged, destroyed, lost or
difficult to interpret because of the nature or number of changes
and additions, the Tribal Council may by resolution adopt a new
Official Zoning Map, as needed, which shall supersede the prior
Official Zoning Map. The new Official Zoning Map may correct
drafting or other errors or omissions in the prior Official Zoning
Map, but no such correction shall have the effect of amending this
Title or any subsequent amendment thereof.
Section 18-3-102. Interpretation of Zone Boundaries.
Whenever uncertainty exists as to the boundaries of zones as
shown on the Official Zoning Maps, the following rules shall apply:
(1) boundaries indicated as approximately following the center
lines of streets, highways, or alleys shall be construed to follow
such center lines;
(2) boundaries indicated as approximately following plotted
lot lines shall be construed as following such lot lines;
(3) boundaries indicated as approximately following city
limits shall be construed as following city limits;
(4) boundaries indicated as following railroad lines shall be
construed to be midway between the main tracks.
(5) boundaries indicated as following shore lines shall be
construed to follow such shore lines, and in the event of change in
the shore line, shall be construed as moving with the actual shore
lines;
(6) boundaries indicated as approximately following center
lines of streams, rivers, canals, lakes or other bodies of water
shall be construed to follow such center lines; and
(7) boundaries indicated as parallel to or extensions of
features indicated in subsections (1) through (6) shall be so
construed. Distances no specifically indicated on an Official
Zoning Map shall be determine by the scale of the map.
Where physical or cultural features existing on the ground are
at variance with those shown on an Official Zoning Map, or in other
circumstances not covered by subsections (1) through (7), the
Commission shall interpret the zone boundaries.
CHAPTER FOUR
MINIMUM REQUIREMENTS
Section 18-4-101. Code as Minimum Requirements.
In their interpretation and application, the provisions of
this Title shall be held to be minimum requirements, adopted for
the promotion of the public health, safety, morals, or general
welfare. Whenever the requirements of this title are at variance
with the requirements of any other lawfully adopted rules,
regulations, ordinances, deed restrictions or covenants, the most
restrictive or that imposing the higher standard, shall govern.
CHAPTER FIVE
LAND USE AND ENVIRONMENT COMMISSION
Section 18-5-101. Creation of Commission.
The Tribe hereby creates and establishes, pursuant to this
Title, the Land Use and Environment Commission, a governmental
agency and subordinate subdivision of the Tribe.
Section 18-5-102. Number and Selection of Commissioners.
The Commission shall comprise five members appointed by the
Council.
Section 18-5-103. Qualifications of Commissioners.
(1) Three Commission members shall be enrolled members of the
Rosebud Sioux Tribe, and two Commission members shall be nonmembers
of the Rosebud Sioux Tribe.
(2) In appointing members, the Council shall give due
consideration to:
(a) sound judgment and knowledge of the goals,
purposes, and provisions of Titles 18 and 19;
(b) qualities of experience, industry,
responsibility, integrity, and sensitivity to the unique
Indian cultural, economic, and social condition and goals of
the Rosebud Sioux Tribe; and
(c) familiarity with the land and natural resources
of the Rosebud Sioux Indian Reservation within the territory
described in Section 18-1-106 of the Title.
(3) No member of the Commission shall serve in any other
tribal capacity in which he is responsible for actions or decisions
that involve the use of land within the Rosebud Sioux Indian
Reservation which would regularly be subject to the provisions of
Titles 18 and 19.
Section 18-5-104. Terms of Office.
(1) Commissioners shall serve three year terms and shall hold
office until their successors have been appointed and have been
sworn into office; provided however, that the first Commission
shall have terms of office as described in Section 18-5-106.
(2) The members of the Commission shall not be subject to the
Tribal Personnel and Policy Procedure Manual.
Section 18-5-105. Oath of Office.
At the time of being sworn into office each Commissioner shall
take the following oath of office: I, ______________, do hereby
solemnly swear that I will support and defend the Constitution of
the United States against all enemies, will carry out faithfully,
and impartially, the duties of my office to the best of my ability;
and will cooperate, promote and protect the best interests of the
Tribe in accordance with the Tribal Constitution and By-Laws.
Section 18-5-106. First Commission.
Two Commissioners appointed to the first Commission shall
serve terms of three years. Two Commissioners appointed to the
first Commission shall serve terms of two years. The remaining
Commissioner appointed to the first Commission shall serve a term
of one year.
Section 18-5-107. Vacancies.
If any Commissioner shall die, resign, be removed or, for any
reason, be unable to serve as a Commissioner, the Council shall
declare his position vacant and shall appoint another person to
fill the position. Terms of office of all persons appointed to
replace the initial Commissioners shall be fore the balance of any
unexpired term for each such position.
Section 18-5-108. Resignation.
Any Commissioner may resign by delivering a written
resignation to the President of the Commission. Such resignation
shall be effective upon receipt, unless otherwise provided by the
terms thereof. A Commissioner's resignation under this Section or
removal under section 18-5-109 shall also terminate that Commissioner's
status, if applicable, as a presiding officer of the Commission.
Section 18-5-109. Removal.
A Commissioner may be removed by the Council for serious
inefficiency or neglect of duty or for malfeasance, misfeasance or
nonfeasance or for misconduct in office, but, except as provided
below in this Section, only after a hearing before the Council, and
only after the Commissioner has been given written notice of the
specific charges at least ten days prior to such hearing. At any
such hearing, the Commissioner shall have the opportunity to be
heard in person or by counsel and to present witnesses on his or
her behalf. If the Council determines that immediate removal or a
Commissioner is necessary to protect the interests of the Tribe,
the Commissioner may be temporarily removed immediately, and the
question of permanent removal shall be determined pursuant to the
hearing procedures specified herein. A written record of all
removal proceedings, together with the charges and findings
thereon, shall be kept by the Tribal Secretary. A decision on
removal by the council shall be final.
Section 18-5-110. Officers of the Commission
(1) President. The President of the Commission shall be
appointed by the Council from among the members of the Commission
and shall hold office for a term of two years. The President
shall preside over all Commission meetings; sign on behalf of the
Commission all documents, decisions, orders, notices, or other
papers approved for such execution by the Commission; and shall
have such other powers and duties as may from time to time be
assigned to him by the Commission.
(2) Vice President. The Vice President of the Commission
shall be appointed by the Council from among the members of the
Commission and shall hold office for a term of one year. Whenever
the President is unable to preside or fulfill his duties as
President, the Vice President shall do so, and when so acting,
shall be clothed with all of the powers and duties of the
President.
(3) Secretary. The Secretary of the
Commission shall be elected by and from the Commission membership
for a term not to exceed his term of office as Commissioner. His
duties shall be those assigned him by the Commission.
(4) Treasurer. The Treasurer of the Commission shall be the
tribal treasurer and shall perform all functions as such for the
Commission pursuant to his constitutional authority.
Section 18-5-110. Offices of the Commission.
The Commission shall be provided with suitable office space,
necessary office furniture, stationary, books and maps, the expense
thereof to be paid by the Tribe pursuant to appropriations for such
purposes.
Section 18-5-111. Compensation of Commissioners.
Compensation of Commissioners, if any, shall be determined by
the Council and shall be paid from the Commission Account
established pursuant to section 18-5-115. Otherwise Commissioners
shall serve without pay, but shall be reimbursed for out-of-pocket
expenses incurred performing their official duties at a rate
established by the council.
Section 18-5-112. Quorum.
Four Commissioners shall constitute a quorum of the
Commission. A majority of those Commissioners present at a meeting
at which there is no quorum may be resolution adjourn the meeting
from time to time for a period not exceeding ten days in any one
instance.
Section 18-5113. Majority Vote.
All members of the Commission, including the President, or the
Vice President if he shall be presiding, shall be entitled to vote
upon all matters coming before the Commission and all such matters
shall be decided by majority vote.
Section 18-5-114. General Procedures of the Commission.
The Commission shall in all cases conduct its proceedings in
the manner most conducive to the proper dispatch of business and to
the ends of justice. No Commissioner shall participate in any
hearing or proceeding in which such Commissioner has any direct
personal pecuniary interest. The Commission may make or amend such
general rules or orders as may be necessary for the orderly
regulation of proceedings before it, including forms of notice and
the service thereof, which shall conform as nearly as possible to
those in use by the Tribal Court. Any party may appear before the
Commission and may be heard in person or by attorney. Every vote
and official action of the Commission shall be entered into a
record and its proceedings shall be published upon the request of
any interested person. Every Commissioner shall have the right to
administer oaths and affirmations in any proceeding pending before
the Commission.
Section 18-5-115. Commission Account Established.
(1) There is hereby authorized and directed to be established
an account in a federally-insured financial institution to be known
as the Land Use and Environment Commission Account.
(2) The Commission Account shall be an interest-bearing
account and the funds therein may be invested and reinvested as
approved by the Council.
(3) No monies shall be released or expended from the
Commission Account except upon written resolution of the Council
appropriating a specific amount of the monies contained therein for
the use of a particular department, agency, or program of the
Tribe. Such appropriated amount shall be directly transferred to
the account of the receiving department, agency, or program named
in the appropriation resolution.
(4) All fees, penalties, interest, charges, or other monies
collected by the Commission in the administration and enforcement
of Titles 18 and 19 shall be deposited in the Commission Account.
Section 18-5-116. Jurisdiction and Powers of Commission.
Subject to the right of review provided in Article IV, Section
1(u) of the Tribal Constitution, the Commission shall have the
following powers:
(1) to exercise all managerial authority over the Tribal Land
Use and Environment Department pursuant to Titles 18 and 19;
(2) to determine petitions for zone changes and approve zone
changes pursuant to procedures set forth in this Title;
(3) to set such fees and charges for applications, permits,
certified copies of proceedings, files, and other records as it
deems appropriate;
(4) to employ and consult with such advisors regarding its
duties as it may deem necessary, subject to the limitations
hereunder and restrictions set forth in section 18-5-120;
(5) to retain and use the services of only the tribal
attorneys or other attorneys designated by the Council upon a
contract approved by the Council and the Secretary of the Interior;
(6) to employ and use the services of only the tribal
accountants or other accountants designated by the Council upon a
contract approved by the Council;
(7) to publish and make available to the public standardized
forms necessary for implementation of this Title;
(8) to administer oaths, conduct hearings as provided in section
18-5-117 and section 18-5-118 hereunder, and, by subpoena or subpoena
duces tecum, to compel the attendance and testimony of witnesses and the
production of any books, records, papers, vouchers, accounts,
documents, and financial statements of any taxpayer or any other
person relating to any enforcement action authorized by Titles 18
and 19;
(9) to examine under oath, either orally or in writing, any
petitioner or witness with respect to any enforcement action
authorized by Titles 18 and 19;
(10) to delegate an individual member of the Commission,
the Director, the Director of Water Resources with respect to
matters governed by Chapter Six of Title 19 only and enforcement
thereof, or to other members of the Commission staff, or, subject
to the approval of the Council, to tribal staff, such of its
functions as may be necessary to administer Titles 18 and 19
efficiently; provided, that the Commission may not delegate its
powers to promulgate regulations;
(11) to promulgate and enforce regulations consistent with
Titles 18 and 19 pursuant to section 18-5-120 and section 19-5-108.
(12) to require the filing of any forms or reports and the
issuance of any regulations necessary for implementation of Titles
18 and 19;
(13) to adopt, by regulations, a schedule of fees and
charges for services rendered relating to preparation of
transcripts and the furnishing of certified copies of:
proceedings, files, and records;
(14) to make recommendations to the Council regarding the
amendment of Titles 18 and 19; and
(15) to exercise all other authority delegated to it by
this Code or the Council, or as may be reasonably necessary in the
implementation of any provisions of Titles 18 and 19.
Section 18-5-117. Hearings; Examiner.
The Commission may conduct such hearings as may be reasonably
required in administration of the powers and duties conferred upon
it by Titles 18 and 19. The Commission may designate one of its
members to act as examiner for the purpose of holding any hearing
which the Commission has the power or authority to hold, or the
Commission may appoint another person to act as examiner under section
18-5-118. Reasonable notice of all hearings shall be given to
interested persons as determined by the Commission.
Section 18-5-118. Appointment of Examiner; Power of Examiner.
The Commission may appoint any person qualified in the law or
possessing knowledge or expertise in the subject matter of the
hearing to act as examiner for the purpose of holding any hearing
which the Commission, or any member thereof, has power or authority
to hold. Any such appointment shall constitute a delegation to
such examiner of all powers of a Commissioner under Titles 18 and
19 with respect to any such hearing.
Section 18-5-119. Regulations of the Commission.
(1) The Commission shall promulgate such written regulations
as are necessary to carry out the orderly performance of all its
duties and powers, including, but not limited to, regulations
relating to: the internal operational procedures of the Commission
and its staff, the interpretation and application of Titles 18 and
19 as may be necessary to carry out its duties and exercise its
powers, the promulgation of official findings or reports or other
information required by or necessary to implement Titles 18 and 19,
the conduct of inspections, investigations, hearings, enforcement
actions and other powers of the Commission authorized by Titles 18
and 19.
(2) Such regulations shall provide for hearings for all
interested persons upon reasonable notice, and their right to
present oral or written testimony.
(3) No rule or regulation of the Commission shall be of any
force or effect until and unless copies of the rule or regulation
have been filed for record in the office of the Tribal Secretary
and in the office of the Clerk of Tribal Court or Tribal Appellate
Court. The copy shall bear the signature of at least three
Commission members, certifying that the rule or regulation was duly
adopted by the Commission pursuant to Titles 18 and 19.
(4) The Tribal Court, Tribal Appellate Court and any other
court of competent jurisdiction shall take judicial notice of all
regulations of the Commission promulgated pursuant to Titles 18 and
19.
Section 18-5-120. Commission Employees and Expenses.
(1) The Commission may employ such employees and incur such
expenses as may be necessary for the proper discharge of its
duties, subject to the limitations and restrictions set out in this
Section. Commission employees shall be subject to the Tribal
Personnel and Policy Procedures.
(2) Upon the approval of the Council by resolution, the
Commission may utilize regular tribal staff in exercising the
duties and responsibilities set out in titles 18 and 19.
(3) The Commission may delegate to the tribal staff by rule
such of its functions as may be necessary to administer Titles 18
and 19 efficiently, subject to the limitations of this Section.
(4) The total amount disbursed by the Commission in any one
fiscal year for the payment of salaries, expenses, and incidentals
shall not exceed the amount appropriated for these same
disbursements by the Council. The Commission shall submit to the
Council a line item proposed budget for the next fiscal year not
later than August 15th of each year.
Section 18-5-121. Bonds.
(1) The Commission may require its members and each of its
officials and employees who may handle tribal monies or revenues,
or who are responsible therefor, to give a bond for the honest and
faithful performance of their duties, in such amounts as may be
fixed by the Commission.
(2) The premiums on any bonds required of the Commission's
members, officials, and its employees shall be paid from the
Commission Account as authorized in the Commission budget.
Section 18-5-122. Records of the Commission.
(1) The Commission shall keep and maintain accurate, complete,
and detailed records which reflect each and every official
transaction, communication, or action of the Commission, including
minutes of all meetings of the Commission.
(2) Such records shall be maintained at the offices of the
Commission and shall not be removed from that location absent the
consent of the Commission by formal resolution.
(3) Such records shall be subject to audit any time upon the
direction of the Council, and shall be audited not less than once
each year by an independent auditor selected by the Council.
(4) Records of the Commission which shall be public records of
the Tribe and which shall be available for public inspection during
regular business hours shall include the following:
(a) Documents and materials submitted to the Commission
with respect to any official Commission business; and
(b) Records of all administrative proceedings or hearings
before the Commission or any hearing examiner; and
(c) Minutes of all Commission meetings.
(5) Records of the Commission which shall not be public
records of the Tribe and which shall not be available for public
inspection shall include the following:
(a) Personnel matters and personnel files; and
(b) Advice of counsel and matters relating to threatened,
past or pending litigation.
Copies of such records may be obtained by payment of such
copying cost as may be established by rule of the Commission.
ROSEBUD SIOUX INDIAN RESERVATION
TITLE 18: LAND USE
DRAFT 7
December 18, 1991
CHAPTER SIX
LAND USE AND ENVIRONMENT DEPARTMENT
Section 18-6-101. Establishment.
There is hereby established a Land Use and Environment
Department to administer Titles 18 and 19 of this Code.
Section 18-6-102. Director.
The Manager of the Land Use and Environment Department shall
be the Director. The Director shall be appointed by the Tribal
Council to serve for a three year term beginning January 1, 1992,
and such additional succeeding three year terms as the Tribal
Council may determine. The Director shall be subject to the Tribal
Personnel and Policy Procedures.
Section 18-6-103. Duties of the Director.
Except as provided in this title 18 or in Title 19, in
performance of his duties, the Director shall:
(1) administer and enforce Titles 18 and 19;
(2) administer the operations of the Rosebud Land Use and
Environment Department, using funds budgeted by the Council;
(3) submit a proposed annual budget to the Council;
(4) supervise all employees of the Department pursuant to
delegation of authority by the Commission;
(5) review applications for and recommend Commission action
upon the following:
(a) land use permits,
(b) zoning changes,
(c) variances,
(d) conditional use permits,
(e) land division permits,
(f) Planned Unit Developments,
(g) alteration or repair of non-conforming uses, and
(h) such other permits as are required by Titles 18
and 19 as originally enacted or as amended, unless
specifically provided otherwise therein, and except with
respect to matters governed by Chapter 6 of Title 19 only, for
which permits applications shall be reviewed and
recommendations to the Commission shall be made by the
Director of water Resources.
(6) provide clerical and administrative support to the
Commission; and
(7) take such other actions as are prescribed in Titles 18 and
19 or the laws of the Tribe.
Section 18-6-104. Director of Water Resources.
The Chief Executive Officer of the Land Use and Environment
Department with respect to matters governed by Chapter 6 of Title
19 only and enforcement thereof shall be the Director of Water
Resources. The Director shall be appointed by the Tribal Council
to serve for a three year term beginning January 1, 1992, and such
additional succeeding three year terms as the Tribal Council may
determine. The Director shall be subject to the Tribal Personnel
and Policy Procedures.
Section 18-6-105. Duties of the Director of Water Resources.
The Director of Water Resources shall exercise such duties
provided in section 18-6-103 as specifically relate to matters governed
by Chapter 6 of Title 19 only and enforcement thereof.
Section 18-6-106. Department Employees.
(1) The Director may employ such employees and incur such
expenses as may be necessary for the proper discharge of his
duties, subject to the limitations and restrictions set out in this
Section.
(2) Upon the approval of the Council by resolution, the
Director may utilize regular Tribal staff to exercise the duties
and responsibilities set out in Titles 18 and 19.
(3) The Director may delegate to the Tribal staff by rule such
of its functions as may be necessary to administer Titles 18 and 19
efficiently, consistent with the limitations of Titles 18 and 19.
(4) The total amount expended by the Director in any one
fiscal year for the payment of salaries, expenses, and incidentals
shall not exceed the amount appropriated for these same
expenditures by the Council. The Director shall submit to the
Council a line item proposed budget for the next fiscal year not
later than July 1st of each year.
CHAPTER SEVEN
ZONING CHANGES
Section 18-7-101. Initiation of Zoning Change.
(1) A proposed zoning change may be initiated by:
(a) petition to the Commission by any interested
person or by the Director;
(b) action of the Commission upon its own motion; or
(c) action by the Council.
(2) Any petition for a zoning change shall provide, at the
minimum, the following information:
(a) legal description of the property to be rezoned;
(b) names and last known addresses of the owners of
all property lying within a distance of 500 feet (streets and
alleys included) of the property proposed for rezoning; and
(c) a description of the proposed zoning change and
an explanation of the grounds for the rezone.
Section 18-7-102. Notice of Proposed Zoning Change.
Upon receipt of a petition for a zoning change, the Commission
shall give notice of the petition as follows.
(1) The Commission shall provide notice that includes:
(a) a statement of the time, place, and nature of
public proceedings on any proposed zoning change;
(b) a statement of the purpose of the proposed zoning
change and the legal authority under which it is proposed;
(c) either the specific language of the proposal or
a description of the proposal's contents;
(d) if the language of the proposal is not included
in the notice, a statement that the proposal is available free
of charge from the Department and an explanation of how to
obtain an copy; and
(e) the name of the person in the Department to whom
the public may direct questions about the proposal.
(2) The notice shall be publicized by:
(a) being provided to each member of the Council;
(b) being published at least twice in a newspaper of
general circulation on the Reservation; and
(c) being posted conspicuously at the Tribal
Administrative Building.
Section 18-7-103. Public Participation In Zoning Changes.
No sooner than 30 days nor later than 45 days after issuance
of the last notice required by section 18-7-102, the Commission
shall schedule a public meeting at which any person may express his
views on the proposal orally or in writing, provided, however, that the
agency may set a reasonable limit on the length of time each person
may speak.
Section 18-7-104. Commission Action and Effective Date.
(1) If, after hearing on any petition, the Commission
determines to grant the proposed zoning change, it shall announce
its decision on the proposal by:
(a) providing a copy of its decision to each member
of the Council;
(b) publishing its decision once in a newspaper of
general circulation on the Reservation; and
(c) posting a copy of its decision conspicuously at
the Tribal Administrative Building.
(2) The final zoning change as published by the Commission
shall be effective and shall be noted on the appropriate Official
Zoning Map 45 days after the Commission's decision is announced,
unless before that date, the Council acts to amend or reverse the
Commission's decision.
Section 18-7-105. Council Retention of Authority.
Notwithstanding any other provision of this Title, the Council
may at any time amend this Title and any Official Zoning Map in the
same manner in which the Council exercises its other law-making
functions.
CHAPTER EIGHT
NON-CONFORMING LOTS, USES AND STRUCTURES
Section 18-8-101. Intent.
(1) Within the zones established by this Title or amendments
that may later be adopted, there may exist lots, structures, and
uses of land and structures which were lawful before this Title was
passed or amended, but which would be prohibited, regulated, or
restricted under the terms of this Title or any such future
amendment. It is the intent of this Title to permit these
nonconformities to continue until they are removed, but not to
encourage their survival. Such uses are declared by this Title to
be incompatible with permitted uses in the zones involved.
(2) To avoid undue hardship, nothing in this Title shall be
deemed to require a change in the plans, construction or designated
use of any building on which actual construction was lawfully begun
prior to the effective date of adoption or amendment of this Title
and upon which actual building construction or site preparation has
been diligently carried on.
Section 18-8-102. Non-Conforming Lots of Record.
(1) In any zone in which single family dwellings are
permitted, notwithstanding limitations imposed by other provisions
of this Title, a single family dwelling and customary accessory
buildings may be erected on any single lot of record on the
effective date of adoption or amendment of this Title. Such lot
must be in separate ownership and not of continuous frontage with
other lots in the same ownership. This provision shall apply even
though such lot fails to meet the requirements for area or width,
or both, that are generally applicable in the zone, provided that
yard dimensions and other requirements not involving area or
width, or both of the lot shall conform to the regulations for the zone
in which such lot is located. Variance of area width and yard
requirements shall be obtained only through action of the
Commission.
(2) If two or more lots or combinations of lots in which
portions of the lots with continuous frontage are in single
ownership of record on the effective date of adoption or amendment
of this Title and, further, if all or part of the lots do not meet
the requirements of lot width and area established by this Title,
then the lands involved shall be considered to be an undivided
parcel for the purpose of this Title and no portion of such parcel
shall be used or sold which does not meet lot width and area
requirements established by this Title, nor shall any division of
the parcel be made which leaves remaining any lot with width or
area below the requirements stated in this Title.
Section 18-8-103. Non-Conforming Uses of Land.
Whenever, on the effective date of adoption or amendment of
this Title, a lawful use of land exists that is made no longer
permissible under the terms of this Title as enacted or amended,
such use may be continued, as long as it remains otherwise lawful,
subject to the following provisions.
(1) No such non-conforming use shall be enlarged, increased,
or extended to occupy a greater area of land than was occupied on
the effective date of adoption or amendment of this Title, unless
the additions conform in all respects to this Title or are approved
under the procedures and standards for variances.
(2) No such non-conforming use shall be moved in whole or in
part to any other portion of the lot or parcel occupied by such use
on the effective date of adoption or amendment of this Title.
(3) If any such non-conforming use of land ceases for any
reason for a period of more than 180 days, any subsequent use of
such land shall conform to the regulations specified by this Title
for the zone in which such land is located.
Section 18-8-104. Non-Conforming Structure.
Whenever a lawful structure exists on the effective date of
adoption or amendment of this Title that could not be build under
the terms of this Title by reason of restrictions on area, lot
coverage, weight, yards, or other characteristics of the structure
or its location of the lot, such structure may be continued as long
as it remains otherwise lawful, subject to the following provision:
(1) No structure may be enlarged or altered in any way unless
the enlargement or alteration is approved under the procedures and
standards for variances;
(2) Should a structure be destroyed by any means to an extent
of more than 75% of its replacement cost at time of destruction, it
shall not be reconstructed except in conformity with the provisions
of this Title.
(3) Should such structure be moved for any reason for any
distance whatever, it shall thereafter conform to the regulations
for the zone in which it is located after it is moved.
Section 18-8-105. Non-conforming Uses of Structure and Land.
Whenever a lawful structure and land in combination exists on
the effective date of adoption or amendment of this Title, that
would not be allowed in the zone under the terms of this Title,
such lawful use may be continued as long as it remains otherwise
lawful, subject to the following provisions:
(1) No existing structure devoted to a use not permitted by
this Title in the zone in which it is located shall be enlarged,
extended, constructed, reconstructed, moved or structurally altered
in any way except to change the use of the structure to a use
permitted in the zone in which it is located;
(2) Any non-conforming use may be extended throughout any
parts of a building which were manifestly arranged or designed for
such use at the time of adoption or amendment of this Title, but no
such use shall be extended to occupy any land outside of such
building;
(3) If no structural alterations are made, any non-conforming
use of a structure and land may be changed to another non-conforming
use provided that the procedures for obtaining a
variance are followed and the Commission finds that the proposed
use is more appropriate to the zone than the existing non-conforming
use. In permitting such change, the Commission may
require appropriate conditions and safeguards in accordance with
the provisions of the Title;
(4) Any structure or structure and land in combination, in or
on which a non-conforming use is superseded by a permitted use,
shall thereafter conform to the regulations for the zone in which
such structure is located, and the non-conforming use may not
thereafter be resumed;
(5) Whenever a non-conforming use of a structure, or structure
and land in combination, is discontinued or abandoned for 180 days,
the structure, or structure and land in combinations shall not
thereafter be used except in conformance with the regulations of
the zone in which it is located;
(6) On any building devoted in whole or in part to any
nonconforming use, work may be done on ordinary repair, provided that
the cubic content of the building as it existed at the time of
passage or amendment of this Title shall not be increased. Nothing
in this Title shall be deemed to prevent the strengthened or
restoring to a safe condition of any building or part thereof
declared to be unsafe by any official charged with protecting the
public safety, upon order of such official; and
(7) Whenever non-conforming use status applies to the
structure and land in combination, removal or destruction of the
structure shall eliminate the non-conforming status of the land
which shall not thereafter be used except in conformance with
regulations of the zone in which it is located.
CHAPTER NINE
LAND USE AND BUILDING PERMITS
Section 18-9-101. Activities Not Requiring Permits.
Any land use permitted outright in any zone, but not including
the construction of buildings or structures, may be conducted
without seeking a land-use permit, provided it is conducted in
accordance with the provisions of this Title.
Section 18-9-102. Activity Requiring Permit.
(1) Building Permit. No building, other structure may be
erected, moved, added to, or structurally altered without a
building permit.
(2) Conditional Use Permit. No person shall engage in any
land use that may only be conducted as a conditional use within a
zone without first obtaining a conditional use permit from the
Director.
Section 18-9-103. Building and Conditional Use Permit Applications.
A permit application shall contain, at a minimum, the
following information:
(1) The legal description of the land involved;
(2) Names or names of the owner and all other persons with any
legal or beneficial interest in the land;
(3) Description of the current land use and all existing
building or structures;
(4) Description of the land use proposed, including plans of
any buildings, roads, structures, or land or vegetation disturbing
activities proposed;
(5) The applicant's explanation of how the building to be
built or the conditional use conforms to the requirements of this
Title; and
(6) Such additional information as the Director may require at
the time of application or thereafter as may be necessary to
determine conformance with this Title.
Section 18-9-104. Grant of Building Permit.
(1) Standards for Decision. The Director shall grant, deny,
or grant with conditions any building permit application within 30
days of receipt of the application. The Director shall only grant
a building permit for the construction of a building or structure
which conforms to the requirements of this Title and such other
tribal laws which the Council may hereafter assign to the Director
to enforce.
(2) Notice and Effectiveness. The Director shall publicize
the approval or denial of a building permit by publishing notice
once in a newspaper of general circulation on the Reservation. The
Director's decision is effective and may be implemented or acted
upon 20 days after publication of such notice.
(3) Appeal to Commission. Any person aggrieved by the grant
or denial of a building permit and any Tribal agency may appeal the
Director's decision to the Commission within 20 days after
publication of such notice required in Subsection (2), (1). If the
decision is appealed, the decision is automatically stayed pending
the appeal, unless the Director specifically concludes in his
written decision that the stay should not apply in a particular
case. The Commission may announce and enforce a stay if the
Director exempts a building permit from this automatic stay.
(4) Scope of Review; Relief Available. The Commission shall
affirm, reverse or modify the Director's decision, as it deems fair
and just, and may grant any further relief within the scope of its
authorized power under this Title.
Section 18-9-105. Action on Applications for Conditional Use Permits.
(1) Notice. Within 15 days of the receipt of a completed
application for a conditional use permit, the Director shall
publish notice of the application once in a newspaper of general
circulation on the Reservation and, in addition, require the
applicant to post a conspicuous notice on the property involved
and, for property adjoining a public road, require the applicant to
post a conspicuous notice on that road.
(2) Hearing. The Director shall hold on informal hearing no
sooner than 14 days and no later than 30 days after publication of
such notice. At such hearing any person may present oral or
written comments on the proposed land use.
(3) Director's Decision. Within 20 days of the hearing on the
conditional use application, the Director shall grant, deny, or
grant with appropriate conditions or restrictions, a conditional
use permit. The Director shall issue personal notice by mail or
personal delivery to the applicant and publish notice of his
decision once in a newspaper of general circulation on the
Reservation.
(4) Date of Effectiveness. The Director's decision is
effective and may be implemented and acted upon 20 days after the
last notice required by this subsection, unless an appeal is filed
with the Commission. In such case, the decision is automatically
stayed unless the Director specifically concludes in his written
decision that the stay should not apply in a particular case.
(5) Appeal to Commission. Any person aggrieved by the grant
or denial of a conditional use permit and any Tribal agency may
appeal the Director's decision to the Commission within 20 days
after the posting of the last notice required by Subsection (4).
If the decision is appealed, the decision is automatically stayed
pending the appeal, unless the Director specifically concludes in
his written decision that the stay should not apply in a particular
case. The Commission may announce and enforce a stay if the
Director exempts a building permit from this automatic stay.
(6) Scope of Review; Relief Available. The Commission shall
affirm, reverse or modify the Director's decision, as it deems fair
and just, and may grant any further relief within the scope of its
authorized power under this Title.
(7) Expiration of Permit. If the work or use described in any
permit, has not begun within 120 days from the date of issuance
thereof, such permit shall expire; it shall be canceled by the
Director and written notice thereof shall be given to the person or
persons affected.
If the work described in any building permit has not been
substantially completed within two years of the date of issuance
thereof such permit shall expire and be canceled by the Director
and written notice thereof shall be given to the person or persons
affected, together with notice that further work as described in
the canceled permit shall not proceed unless and until a new
building permit has been obtained.
CHAPTER TEN
LAND DIVISION PERMITS
Section 18-10-101. Permits Required.
No person or entity owning or controlling property may
subdivide or otherwise create two or more parcels of property from
one, without first obtaining a permit under this Title.
Section 18-10-102. Permit Applications.
A permit application shall contain, at a minimum, the
following information:
(1) The legal description of the land involved;
(2) The name of the owner and all other persons with any legal
or beneficial interest in the land;
(3) A description of the land division proposed;
(4) Proof that the applicant has provided notice in writing to
all owners of property within 500 feet of the subject property; and
(5) Such additional information as the Director may require at
the time of application or thereafter as may be necessary to
determine conformance with this Title.
Section 18-10-103. Notice.
Within 15 days after the receipt of a completed application
for a land division permit, the Director shall publish notice of
the application once in a newspaper of general circulation on the
Reservation and, in addition, require the applicant to post a
conspicuous notice on the property involved and, for property
adjoining a public road, require the applicant to post a
conspicuous notice on that road.
Section 18-10-104. Hearing on Applications.
Hearing and decision on land division permit applications
shall proceed as required of building permit applications.
Section 18-10-105. Action on Application and Appeal.
(1) Director's Action. Within 20 days of the hearing on the
land division permit application, the Director shall grant, deny,
or grant the application with appropriate conditions or
restrictions. The Director shall only deny the land division
application if it would violate a relevant section of this Title.
(2) Notice and Effectiveness. The Director shall publicize
the approval of a land division by publishing notice once in a
newspaper of general circulation on the Reservation. The
Director's decision is effective and may be implemented and acted
upon 20 days after publication of the notice required by this
Subsection, unless an appeal is filed with the Commission. In that
case, the decision is automatically stayed unless the Director
specifically concludes in his written decision that the stay should
not apply in a particular case.
(3) Appeal. Any person aggrieved by the grant or denial of a
land division permit and any Tribal agency may appeal the
Director's decision to the Commission within 20 days of the
decision. If the decision is appealed, the decision is
automatically stayed pending the appeal, unless the Director
specifically concludes in his written decision that the stay should
not apply in a particular case. The Commission may announce and
enforce a stay if the Director exempts a land division permit from
this automatic stay.
(4) Scope of Review; Relief Available. The Commission shall
affirm, reverse or modify the Director's decision, as it deems fair
and just, and may grant any further relief within the scope of its
authorized power under this Title.
CHAPTER ELEVEN
VARIANCES
Section 18-11-101. Authority to Grant.
The Director may authorize a variance from the requirements of
this Title whenever the criteria of this Section are met, provided,
however, that no variance shall be granted to allow the use of
property for a purpose not authorized either as an outright
permitted use or conditional use within the zone in which the
proposed use would be located. In granting a variance, the
Director may attach conditions necessary to protect the best
interests of the surrounding property and the Reservation as a
whole and achieve the purposes of this Title.
Section 18-11-102. Variance Application Procedure.
(1) To seek a variance, the applicant must submit a written
application to the Director. An application may be filed by one or
more of the following entities or persons:
(a) The owner of the property;
(b) Whenever the property is held in trust, the
beneficial owner;
(c) A purchaser of the property under a duly executed
written contract, with the written consent of the seller;
(d) A lessee of property, with the written consent of
the owner; or
(e) The duly authorized agent of any of the
foregoing;
(f) Any tribal governmental official acting in his
official capacity; and
(g) Any person whose interests are or would be
adversely affected by the uses of the land allowed under this
Title if not altered.
(2) An application for variance must contain:
(a) The name and address of the property owner and if
different, the applicant;
(b) The legal description of the property;
(c) The nature of the variance sought;
(d) The names and last known addresses of owners of
property within 500 feet of the property proposed for variance
and proof that notice of the application has been provided to
those persons by the applicant; and
(e) The grounds upon which the variance is sought,
responding to each condition that must be met for a variance,
set out in section 18-11-104 of this Title.
Section 18-11-103. Hearings.
Within 30 days of receipt of an application for variance the
Director shall hold an informal public hearing at which persons may
present their view in writing or orally.
Section 18-11-104. Grant of Variance.
(1) The Director shall grant, deny, or grant with conditions
any variance sought within 30 days of the hearing required by section
18-11-103 of this Title and shall provide notice of his decision by
publishing notice once in a newspaper of general circulation on the
Reservation.
(2) A variance may only be granted if the Director finds, and
documents in writing his findings and their bases, that:
(a) there are unnecessary, unreasonable hardships or
practical difficulties which can be relieved only by modifying
the lateral requirements of this Title;
(b) there are exceptional or extraordinary
circumstances or conditions applying to the land, buildings,
or uses referred to in the application, which circumstances or
conditions do not apply generally to land, buildings, or uses
in the same zone; provided, however, that nonconforming land,
uses or structures in the vicinity shall not in themselves
constitute such circumstances or conditions;
(c) granting the application will not be materially
detrimental to the public welfare or be injurious to property
or improvements in the neighborhood of the premises;
(d) such variance is necessary for the preservation
and enjoyment of the substantial property rights of the
petitioner;
(e) granting the application will not adversely
affect the health or safety of persons working or residing in
the neighborhood of the property of the applicant or of the
Reservation community; and
(f) granting of the application will be in general
harmony with the intent and purpose of this Title.
Section 18-11-105. Effective Date of Variance.
A variance granted by the Director shall become effective 20
days after issuance of the notice of decision, provided, however,
in case the Director's decision is appealed to the Commission, the
variance shall not be effective until the Commission has acted on
the appeal.
Section 18-11-106. Term of Variance.
(1) Variance Right Must Be Exercised To Be Effective. A
variance granted under this Title shall be effective only when the
exercise of the right granted thereunder shall be commenced within
six months from the effective date of the grant, unless a longer
period be specified or thereafter allowed by the Director or
Commission. In case such right has not been exercised, or
extension obtained, the variance shall be void. A written request
for an extension of time filed with the Director at least 30 days
prior to the expiration of the variance shall extend the running of
the six month period until the Director has acted on such request.
(2) Cessation of Variance. Discontinuance of the exercise of
any right authorized by any variance for a continuous period of six
months shall be deemed an abandonment of such variance, and the
property affected thereby shall be subject to all the provisions
and regulations of this Title applicable to the zone in which such
property is located at the time of such abandonment.
(3) Transfer of Variance. Any valid variance granted pursuant
to this Title is transferrable unless otherwise provided at the
time of the granting of such variance.
Section 18-11-107. Appeal to Commission.
(1) Time to File Appeal. Any person aggrieved by the grant or
denial of a variance and any Tribal agency may appeal the
Director's decision to the Commission within 20 days after
publication of the notice required by Section 18-11-104. If the
decision is appealed, the decision is automatically stayed pending the
appeal, unless the Director specifically concludes in his written
decision that the stay should not apply in a particular case. The
Commission may announce and enforce a stay if the Director exempts
the grant of a variance from this automatic stay.
(2) Scope of Review; Relief Available. The Commission shall
affirm, reverse or modify the Director's decision, as it deems fair
and just, and may grant any further relief within the scope of its
authorized power under this title.
CHAPTER TWELVE
RESIDENTIAL ZONE
Section 18-12-101. Purposes.
A Residential Zone (R) is established as a zone in which the
principal use of the land is for residential construction and land
development of varying densities designed to meet contemporary
building and living standards.
In order that a Residential Zone shall further promote the
general purpose of this Title, the specific intent of this Zone is:
(1) To encourage construction upon, and the continued use of
land for various residential purposes.
(2) To prohibit commercial and industrial uses of land and to
prohibit any other use which would substantially interfere with the
development or continuation of residential uses;
(3) To encourage the discontinuance of existing uses of land
which would not be permitted as new uses under the provisions of
this Title.
(4) To prohibit any use of land which, because of its
character or size, creates requirements and costs for public
services, such as police and fire protection, water supply and
sewage facilities, substantially in excess of such requirements and
costs if the Zone in which the land lies were developed solely for
residential purposes.
Section 18-12-102. Uses.
No building, structure or land shall be used and no building
or structure shall be hereafter erected, altered, enlarged or
maintained in a Residential Zone except for the following uses:
(1) Single family dwellings.
(2) Two-family dwellings.
(3) Multiple-family dwellings and apartment houses.
(4) Public parks and playgrounds.
(5) Farming, gardening, orchards and nurseries, provided that
no retail or wholesale business office is maintained, and provided
that no poultry or livestock, other than normal household pets,
shall be housed within 100 feet of any residence other than the
dwelling on the same lot.
(6) Home occupations as defined in section 18-2-101 of this Title.
(7) Accessory buildings such as are ordinarily appurtenant to
the permitted uses in such Zone.
(8) Special Property uses specifically allowed in such Zone as
listed in Chapter Twenty Five of this Title.
Section 18-12-103. Transitional Uses.
Whenever the side of a lot abuts a Commercial or Industrial
Zone, the following transitional uses are permitted provided they
do not extend more than 100 feet into the Residential Zone
(1) Medical or dental offices and clinics;
(2) Other uses of a transitional nature as determined by the
Director. These transitional uses shall conform to all other
requirements of this Title which apply.
Section 18-12-104. Area Regulation.
The following area regulations apply in a Residential Zone:
(1) Lot Size and Percentage of Coverage.
(a) Single Family Dwelling. No single family
dwelling shall hereafter be erected upon any lot or plot
having an area of less than 7200 square feet, or an average
width of less than 60 feet. Nor shall the building, including
its accessory buildings, cover more than 50% of the total lot
area.
(b) Two-Family Dwelling. No two family dwelling
shall hereafter be erected upon any lot or plot having an area
of less than 9600 square feet, or an average width of less
than 80 feet. Nor shall the building, including its accessory
buildings, occupy or cover more than 50% of the total lot
area.
(c) Multiple-Family Dwelling. No multiple family
dwelling of three or more residential units shall hereafter be
erected upon any lot or plot having an area of less than
10,800 square feet, or an average width of less than 890 feet.
Nor shall an apartment or multiple-family dwelling of any type
be erected in such a manner as to provide less than 2000
square feet of land area for each living unit including the
land on which the unit is built. No multiple family dwelling,
or apartment, including its accessory building, shall occupy
or cover more than 50% of the total lot area.
(2) Lot Sizes. Larger lot sizes for individual water and
sewage systems or community water and sewage systems may be
required by the Director of Water Resources.
(3) Set-Back Requirements.
(a) Front. There shall be a minimum set-back for all
buildings or other structures from the centerline or
rights-of-way as follows:
Rights-of-Way, Public Set-Back
Major or Secondary Arterials 60 feet
Collector of Access Roads 50 feet
Rights-of-Way, Private
Any road, land, street or other
access way in private ownership 50 feet
Any Water Way 200 feet
(b) Side. There shall be a side set-back of not less
than five feet on each side of a dwelling except that a setback
on a corner lot shall not be less than 10 feet along the
flanking or side street line.
(c) Rear. There shall be a rear set-back of not less
than 15 feet in the rear of each dwelling. Accessory
buildings may be located in the rear of each dwelling.
Accessory buildings may be located in the rear yard provided
they shall maintain a set-back of five feet from any lot line.
(4) Height Requirements. No building shall exceed a height of
45 feet or three stories, whichever is the lesser.
Section 18-12-105. Sign Regulations.
(1) The following signs only shall be permitted in this Zone.
(a) One unlighted sign not exceeding six square feet
in area pertaining only to the sale, lease, rent, or hire of
only the particular building, property or premises upon which
such sign is displayed.
(b) A sign advertising the sale of agricultural
products raised or grown on the premises not to exceed six
square feet in area.
(c) Name plates not exceeding two square feet in area
bearing only the name and occupation of the occupant, and when
so used such plates shall be located on the property and off
the right-of-way.
(d) In a transitional area a sign, illuminated or
otherwise but not of a flashing intermittent type, with a
maximum area of 18 square feet, shall be permitted. Any
external sign displayed shall pertain only to the use
conducted within the building and shall be mounted flat
against the building. An artificially illuminated sign shall
not be permitted if it faces an abutting Residential Zone.
CHAPTER THIRTEEN
COMMERCIAL ZONE
Section 18-13-101. Purposes.
A Commercial Zone (C) is established as a zone in which the
principal use of the land is for various types of commercial
activities which provide the outlets for commodities, personal
services, professional services and other business uses related to
the needs of the particular section of the community in which it is
located.
In order that a Commercial Zone shall further promote the
general purpose of this Title, the specific intent of this Title
is:
(1) To protect commercial development, as far as is possible
and appropriate in each area, against the establishment of uses
which would create hazards, offensive noise, vibration, smoke,
dust, odors, heat, glare, or other objectionable influences, or
heavy trucking traffic;
(2) To protect commercial development against congestion, so
far as is possible and appropriate in each area, by limiting the
bulk of buildings in relation to the land around them and to one
another;
(3) To provide sufficient space in appropriate locations for
the transaction of al types of commercial and miscellaneous
service activities in beneficial relation to one another, and thus
to strengthen the economic base of the community;
(4) To provide appropriate space, and in particular sufficient
depth from the street, to satisfy the needs of modern commercial
development, including the need for off-street parking, in areas
where a large proportion of customers come by automobile;
(5) To encourage the tendency of commercial development to
concentrate, to the mutual advantage of both customers and
merchants;
(6) To promote the most desirable use of land in accordance
with a well-considered plan, to promote the beneficial and
appropriate development of all land, to promote stability of
commercial development to protect the character and established
pattern of desirable development in each area, to conserve the
value of the land, and thus to promote public safety, convenience,
prosperity and welfare.
Section 18-13-102. Uses.
No building, structure, or land shall be used and no building
or structure shall be hereafter erected, altered, enlarged, or
maintained in a Commercial Zone except for the following uses:
(1) Any use permitted in a Residential Zone;
(2) Retail trade establishment; and
(3) Commercial and professional service establishment.
Section 18-13-103. Area Regulation.
The following area regulations shall apply in a Commercial
Zone.
(1) Lot Size and Percent of Coverage. No buildings, including
all accessory buildings on one lot, shall occupy or cover more than
50% of the total lot area.
(2) Set-Back Requirements.
(a) Front. There shall be a minimum set-back for all
buildings or other structures from the centerline of
rights-of-way as follows:
Rights-of-way, Public Set Back
Major or Secondary Arterials 60 feet
Collector or Access Roads 50 feet
Rights-of Way, Private
Any road, street or other access
way in private ownership 50 feet
Any Waterway 200 feet
(b) Side. No side set-back is required except for
property abutting a Residential Zone in which case the side
yard on the abutting side shall be the same as that required
in the Residential Zone. On a side abutting a street, the
set-back shall be a minimum of ten feet for all structures.
(c) Rear. No rear set-back is required in a
Commercial Zone.
(3) Height Requirements. No building shall exceed a height of
45 feet or three stories, whichever is the lesser.
Section 18-13-104. Sign Regulations.
Any external sign displayed shall pertain only to the use
conducted within the building. An artificially illuminated sign
shall not be permitted if it faces an abutting Residential Zone.
A sign shall be flat against the building.
CHAPTER FOURTEEN
INDUSTRIAL ZONE
Section 18-14-101. Purposes.
The Industrial Zone (I) is established as a zone in which the
principal use of the land is for the various types of industrial
activities and development which are considered to be compatible
with and essential to the economic well-being of the community in
which it is located.
In order that an Industrial Zone shall further promote the
general purpose of the Title, the specific intent of this Zone is:
(1) To establish standards for the height and size of
buildings, the areas and dimension of yards and open spaces;
(2) To provide facilities to minimize traffic congestion;
(3) To provide for facilities and the operation of industries
to minimize noise, glare, air pollution, water pollution, and fire
and safety hazards in Industrial Zones.
Section 18-14-102. Uses.
No building, structure, or land shall be used and no building
or structure shall be hereafter erected, altered, enlarged, or
maintained in an Industrial Zone except for the following uses:
(1) Any use permitted in a Commercial Zone, other than a
dwelling except when exclusively connected with the business
involved.
(2) Manufacturing, repairing, compounding, processing,
packing, or storage;
(3) Wholesale distributing or outlet;
(4) Railroad facilities, such as switching yards, spur, or
holding tracks;
(5) Kennels;
(6) Motor vehicle wrecking or junk yard, provided that it is
fully screened or fenced so that the storage and operation is not
visible from my public right-of-way.
Section 18-14-103. Area Regulations.
(1) Setback. There are no front, side, or rear set-back
requirements except for those found in Section 18-14-104; provided,
however, that no building or use shall be allowed within 75 feet of
a Residential Zone or a lot or parcel containing a dwelling in
another zone.
(2) Landscaping. The open area next to a Residential Zone or
dwelling shall be landscaped and maintained with trees, shrubs,
hedges or other condition necessary to reduce adverse impacts the
industrial use may have on adjacent properties.
(3) Additional Limitations. The Director may impose
additional limitations on openings, access, location of buildings,
activities or other features of the proposed use to reduce the
impact on adjacent uses.
Section 18-14-104. Other Regulations.
(1) Rights-of-Way Preservation. There shall be a minimum setback
for all buildings or other structures from the center lines of
rights-of-way as follows:
Rights-Of-Way Set Back
Major or secondary arterials 40 feet
Collector of access roads 30 feet
Rights-of-Way
Any road, lane, street or
other access way in private
ownership 30 feet
Any Waterway 200 feet
(2) Parking and Loading Space. Parking and loading space
shall be provided as required in Section 18-24-101 of this Title.
CHAPTER FIFTEEN
PLANNED UNIT DEVELOPMENT
Section 18-15-101. Purpose.
The Planned Unit Development (PUD) Zone is established as a
zone to:
(1) Encourage flexibility in design and development that will
encourage a more creative approach in the development of land, and
which will result in a more efficient, aesthetic and desirable use
of the land.
(2) Permit flexibility in design, placement of buildings, use
of required open spaces, circulation facilities, off-street parking
areas and otherwise better to utilize the potentials of sites
characterized by special features of geography, topography,
geology, size or shape.
(3) Facilitate the adequate and economical provision of
streets and utilities.
(4) Preserve the natural and scenic qualities of open areas
and protect environmentally sensitive areas.
Section 18-15-102. Definitions.
In this Chapter, except where otherwise specifically provided
or the context otherwise requires, the following terms and
expressions shall have the following meanings:
(1) "Planned Unit Development" means the development of an
area of land as a single entity for a number of dwelling units or
a number of uses, according to a plan which does not correspond in
lot size,, bulk or type of dwelling, density, lot coverage or
required open space to the regulations otherwise required.
(2) "Common Open Space" means an area within a development
designed and intended for use or enjoyment of all residents of the
development or for the use and enjoyment of the public in general.
Common open space land will be maintained in perpetuity.
Section 18-15-103. Limitations.
Planned Unit Development Zones are allowed in any zone except
a Primary Agricultural Zone, Forest Conservation Zone, Reservation
Natural and Cultural Resource Zone, Historic Preservation Zone, and
areas subject to the Flood Plain Overlay Zone. Planned Unit
Development may contain uses allowed outright or conditionally in
Residential or Commercial or Industrial Zones, or special uses.
Chapter Twenty Three of this Title, consistent and compatible with
the other uses.
Section 18-15-104. Application For Planned Unit Development Zone.
An application for a Planned Unit Development Zone must be
filed with the Director and must set out detailed information
concerning the following subjects as they may be involved in or
provided for by the Planned Unit Development Project:
(1) Proposed ownership pattern.
(2) Operation and maintenance proposals, i.e., homes,
associations, condominium, co-op or other
(3) Waste disposal facilities
(4) Lighting
(5) Water supply
(6) Public transportation
(7) Community facilities
(8) General timetable of development
Section 18-15-105. Hearing on Application.
Upon receipt of a petition for a Planned Unit Development
Zone, the Commission shall give notice of the petition as follows:
(1) The Commission shall provide notice that includes
(a) A statement of the time, place, and nature of
public proceedings on any proposed Planned Unit Development
Zone.
(b) A statement of the purpose of the Planned Unit
Development Zone and the legal authority under which it is
proposed;
(c) Either the specific language of the proposal or
a description of the proposal's contents;
(d) Whenever the language of the proposal is not
included in the notice, a statement that the proposal is
available free of charge from the Department and an
explanation of how to obtain a copy; and
(e) The name of the person in the Department to whom
the public may direct questions about the proposal.
(2) The notice shall be publicized by:
(a) Being provided to each member of the Council;
(b) Being publishing at least twice in a newspaper of
general circulation on the Reservation; and
(c) Being posted conspicuously at the Tribal
Administrative Building.
Section 18-15-106. Public Participation In Establishing A Planned Unit
Development.
No sooner than 30 days nor later than 45 days after issuance
of the last notice as required by section 18-15-105, the Commission
shall schedule a public meeting at which any person may express his
views on the proposal orally or in writing, provided, however, that the
agency may set a reasonable limit on the length of time each person
may speak.
Section 18-15-107. Commission Action and Effective Date.
(1) If, after hearing on any petition, the Commission
determines to grant the petition for a Planned Unit Development
Zone, it shall announce its decision on the proposal by:
(a) Providing a copy of its decision to each member
of the council;
(b) Publishing its decision once in a newspaper of
general circulation on the Reservation; and
(c) Posting a copy of its decision conspicuously at
the Tribal Administrative Building.
(2) The final action of the Commission, as published by the
Commission, shall be effective and shall be noted on the
appropriate Official Zoning Map 45 days after the Commission's
decision is announced, unless before that date, the Council acts to
amend or reverse the Commission's decision.
Section 18-15-108. Commission's Decision.
(1) The Commission may only approve an application for a
Planned Unit Development Zone if it complies with section 18-15-103 and
section 18-1-104. Further, in making its decision, it shall apply and
provide written funding on the following criteria.
(a) Substantial conformance to this Title.
(b) The proposal's harmony with the surrounding area,
or its potential future use;
(c) The system of ownership and means of development,
preserving and maintaining space;
(d) The adequacy of the size of the proposed Zone to
accommodate the contemplated development;
(e) The proposal's achievement of the purposes of
this Title.
(2) The Commission may grant, deny, or deny with conditions,
any Planned Unit Development Zone application and may require
binding commitments or posting of a bond to insure completion of
the Planned Unit Development Project as approved.
(3) Approval of application for a Planned Unit Development
Zone alters the zone covering the land in question. Upon approval,
the new zoning designation shall thenceforth be: "Planned Unit
Development Zone."
(4) The Commission's decision may be appealed pursuant to this
Title.
Section 18-15-109. Final Development Plan and Program.
Upon being granted approval by action of the Commission, the
applicant shall prepare a final Planned Unit Development Plan
containing the enumerated elements and meeting the density, open
space and other requirements listed below.
(1) Plan Elements.
(a) Existing maps drawn to scale of not less than 1
inch to 100 feet and proposed contour map.
(b) Location, with the names, of all existing and
proposed streets, public ways, railroads and utility
rights-of-way, parks or other open spaces and all land uses within
500 feet of the boundary of the development.
(c) Existing sewers, water mains, and other
underground facilities within and adjacent to the development
and their certified capacities.
(d) Proposed sewer or other waste disposal
facilities, water mains and other underground utilities.
(e) Preliminary subdivision plan.
(f) Proposed land use plan.
(g) Community facilities plan.
(h) Location and amount of open space, not to be less
than 35% of the entire area designated a Planned Unit
Development Zone.
(i) Traffic flow plan.
(j) Location and dimension of walks, trails or
easements
(k) Location, arrangement, number and dimensions of
truck loading and unloading spaces and docks.
(l) Location, arrangement, number and dimensions of
auto garages and parking spaces, width of aisles, bays and
angles of parking.
(m) Preliminary plans, elevation of typical building
or structures, indicating general height, bulk and number of
dwelling units.
(n) Approximate location, height, and materials of
all walls, fences and screen plantings.
(o) Indication of stages of development.
(2) Program Elements.
(a) Statement of goal and objectives.
(b) Evidence of resources available for development.
(c) Tables showing total number of acres,
distribution of area by use, percent designated for each
building, type of off-street parking, streets, parks,
playgrounds, schools and open spaces.
(d) Tables indicating overall densities and
density-by-dwelling-types, and any proposal for the limitations of
density.
(e) Provisions to ensure maintenance of common open
space in perpetuity.
(3) Project Densities. The Commission may approve population
or development density for a Planned Unit Development even though
such density may be greater than that specified in this Title for
the area containing the Planned Unit Development if, in the opinion
of the Commission, the design of the Planned Unit Development will
not result in inconvenience or unsafe access to the Planned Unit
Development or excessive burden on parks, recreation area, schools
and other public facilities which serve or are proposed to serve
the Planned Unit Development.
(4) Common Open Space Requirements.
(a) Common Open Space in a Planned Unit Development.
(i) The location, shape, size and character of the
open space must be suitable for the Planned Unit
Development.
(ii) Common open space must be suited for amenity
or recreational purposes. The uses authorized for the
common open space must be appropriate to the scale and
character of the Planned Unit Development, considering its
size, density, expected population, topography and number
and type of dwelling units to be provided.
(iii) Common open space must be suitably improved
for its intended use, but common open space containing
natural features may be left unimproved if the Commission
so allows. The buildings, structures and improvements
which are permitt |