Posted by: Patricia Salkin | December 27, 2013

ND Supreme Court Upholds Rezoning Denial and Declines to Consider Alleged Conflicts of Interest and Takings Claims

Dahm sought a zoning amendment to change his property designation from agricultural to residential and he sought preliminary plat approval to create a 99-lot residential subdivision. Following the first public hearing, rather than making a formal recommendation to the County Board, the Zoning Commission continued the hearing to enable Dahm to revise his application based on a series of identified deficiencies. Dahm made revisions and a second hearing was held during which Dahm’s attorney noted that to address traffic concerns, an adjacent landowner agreed to provide highway access on the condition that their property could also be rezoned. The Zoning Commission recommended denial and the County Board adopted the recommendation, stated that Dahm could not appear before the Board for six months.

Dahm appealed arguing that two of the County Commissioners had “direct pecuniary involvement in recent land development in the same vicinity as the Project,” and that their votes to deny the application were possibly colored by economic self-interest. The District Court affirmed the Board and Dahm appealed arguing that the Board failed to adequately consider his application and he asserted that existing conflicts of interest were prejudicial. He also asserted that the six-month prohibition period was unconstitutional.

The State Supreme Court noted that the Zoning Commission’s official recommendation stated the Commission’s concerns with density, traffic, and sewer and water issues on the property. Furthermore, the Commission noted that the application was inconsistent with a number of goals in the comprehensive plan. The Court found that the record showed that the County Board did appropriately consider the evidence before it and it was entitled to deference.

As to the claimed conflicts of interest, the Court noted that he did not raise this to the County Board. Although Dahm argued he was not immediately aware of the conflict, he also said it would not have been “prudent” to address it at the public hearing because he claimed the information would not have been well received and it would have been even less likely that his application would have been approved. The Court declined to consider the allegations because they were speculative in nature and had not been presented to the County Board. Further, the Court noted that these votes were not determinative votes.
With respect to the six-month prohibition period that Dahm alleged was unconstitutional, the Court said that a “moving party cannot turn an appeal from a denial of a change in zoning request to an inverse condemnation action,” and therefore they declined to address his takings claim. Further, the Court noted that given the history and the time needed to address/resolve concerns, the six month wait period was not unreasonable.

Dahm v Stark County Board of County Commissioners, 2013 WL 6698625 (ND 12/19/2013)

The opinion can be accessed at: http://www.ndcourts.gov/court/opinions/20130238.htm


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