(dissenting).
[¶ 24.] I respectfully disagree with the majority opinion’s determination in Issue 2 that the Office of History was provided with an opportunity to investigate and comment on the project ultimately approved by the Commission.
[¶ 25.] SDCL 1-19A-11.1 prohibits the Commission from undertaking a project that will “encroach upon, damage or destroy any historic property ... until the [OJffice of [H]istory has been given notice and an opportunity to investigate and comment on the proposed project[.]” Given the plain meaning of this statutory language, the obvious purpose of the statute is to protect historical property.5 In order to carry out that purpose, the legislature requires that the Office of History be provided with an opportunity to investigate and comment on any proposed project that is to be constructed on historical property.
[¶ 26.] Here, the site for the proposed project involves historical property in Deadwood. The Office of History reviewed and commented on the initial plans. However, after the Office commented on the initial plans, substantial changes were made: (1) the height of the building was reduced from fifty-eight feet to forty-five feet; (2) the length of the building was increased from 250 feet to 296 feet; (3) the number of the rooms was reduced from ninety to eighty; and (4) landscaping was added to aesthetically improve the facade. Obviously, this plan was drastically different in dimension, capacity and appearance *613than the initial plan submitted to the Office of History. In fact, these substantial changes constitute an entirely new plan. Therefore, the Office of History was statutorily entitled to evaluate the new plan to determine the extent of the encroachment, damage or destruction of historic property. However, this new plan was never submitted to the Office of History. Instead, BY circumvented the statutory procedure and obtained final approval from the Commission.
[¶ 27.] The majority opinion terms these substantial and material alterations as a mere “design change.” The effect of this characterization is to invite developers to submit preliminary plans to the Office of History once and, thereafter, substantially change the plans and seek final approval from the Commission. Clearly, this was not the legislature’s intention, which was to preserve and protect historical property-
[¶ 28.] The Office of History is a regulatory agency established to ensure that historic preservation concerns are satisfied. While the legislature does not require that developers comply with the comments from the Office of History, it did, nonetheless, clearly require that the Office of History be provided with an opportunity to “investigate and comment on the proposed project.” This is part of the statutory process to ensure that “there is no feasible and prudent alternative to the proposal and that the program includes all possible planning to minimize harm to the historic property....” SDCL 1-19A-11.1(1). Here, the statutory process was circumvented and the Office was denied its opportunity to investigate and comment on the project that received final approval from the Commission.
[¶ 29.] The majority opinion further claims that a reversal “would create a situation where every alteration in a plan would subject a project to resubmittal, effectively bringing construction to a standstill.” I disagree. Insignificant modifications do not require resubmissions to the Office before they are implemented. However, when the plans substantially change the dimension, appearance and capacity, resubmission to the Office of History is statutorily required because the changes constitute a new proposed plan.
[¶ 30.] Because a new plan was proposed to the Commission without providing an opportunity to the Office of History to investigate and comment, the Commission’s final approval was premature and illegal. Therefore, this case should be reversed and remanded.
[¶ 31.] I would also reverse and remand on Issue 1 because the acceptance of affidavits outside the record clearly violates SDCL 1-26-35 and demonstrates the cavalier attitude of the trial court and this court toward “historic preservation” when it dares to get in the way of “economic progress.” SDCL 1-26-35 provides that “[t]he review shall be conducted by the court without a jury and shall be confined to the record.” (emphasis added). The plain language cannot be any plainer.
. SDCL 1-19A-11.1 is similar to the National Historic Preservation Act of 1966 (16 USC § 470 et seq.) which establishes the National Register of Historic Places. Property that is listed in the National Register is subject to favorable tax treatments as well as federal grants. 36 C.F.R. § 60.2(c). Whenever a listed site is the subject of a federal proposed project, the Advisory Council on Historic Preservation must be afforded "a reasonable opportunity to comment” on the project. 16 USC § 470h-2(f). These comments must be "taken into account and integrated into the decisionmaking process, [however,] the program decisions rest with the agency implementing the [project].” 36 C.F.R. § 60.2(c).