Posted by: Patricia Salkin | February 22, 2014

N.D. Supreme Court Finds that Zoning Board’s Denial of Rezoning Application & Six-Month Wait Period for Rehearing was Not Arbitrary, Capricious, or Unreasonable

Richard Dahm submitted an application to the Stark County Board of County Commissioners (“the Board”) for a zoning amendment to change his property from agricultural to residential. Dahm also sought approval to create a 99 lot residential subdivision on “preliminary plat called Duck Creek Estates.” The plot was located between Interstate-94 and Highway 10, and “adjacent to a previously platted subdivision called Maryville Subdivision.” Two public hearings were held before the Planning and Zoning Commission (“Commission”), at the first hearing, a recommendation was made to deny Dahm’s application based on a lack of specificity as to the district he sought to rezone, the road access and measurements, and it did not delineate the wetlands or flood plains in relation to the property. The Commission allowed Dahm to revise his application.

At the second hearing, Dahm presented his revised application, which responded to the previously raised deficiencies in his first application. Dahm also stated that highway access would not be an issue because an adjacent landowner agreed to provide highway access if his property would also be rezoned and that traffic density would be approximately 925 vehicles per day. At the hearing, members of Maryville Subdivision opposed Dahm’s application because of the potential for heavy traffic and dust. The Board adopted the recommendation of the Commission and by a 5-0 vote, denied Dahm’s application. In addition to the denial of Dahm’s application, the Board stipulated that Dahm could not appear before the board again for another six months.

Dahm then appealed to the district court and argued that two of the County Commissioners had a conflict of interest because they had a direct pecuniary involvement in a land development project in the same area as the one Dahm sought to develop. Dahm “also sought to introduce evidence of similar zoning request that had been previously approved by” the Board. The district court denied Dahm’s motion to introduce new evidence and affirmed the Board’s decision denying his application. Dahm appealed again, and argued that the denial of his application for rezoning was arbitrary, capricious, and unreasonable, for two reasons: (1) the Board did not fully consider his application and the evidence he presented, and (2) that two of the Commissioners had conflicts of interest which prejudiced Dahm.

With regard to Dahm’s first argument, the Board has rejected Dahm’s application, in part, because it was not compatible with the “Comprehensive Plan” established by the county, which essentially laid out a plan for growth and development. The court found that because the Board determined that Dahm’s application was not fit with the Plan, that it was not under an obligation to approve Dahm’s request for rezoning. Moreover, the court stated that it was not permitted to “substitute its judgment for that of the” Board by considering new evidence.

As to Dahm’s second argument, he alleged that “Commissioner Hoff purchased a large tract of land near Dickinson in August 2010, and sold a portion of the property to Roers Development in July 2012,” and that Roers intended to develop 1,000 acres of land near the proposed Duck Creek Estates into commercial and high-density residential lots. Dahm also alleged that Commissioner Elkin engaged in similar conduct with a different development company, Bakken Shale Development. However, Dahm did not raise this alleged conflict of interest to the Board, and only attempted introduce such evidence to the district court on appeal. The court found that Dahm’s evidence of the alleged conflict of interest of the Commissioners was merely speculative and that because it was not presented to the Board it could not be considered on review. Thus, the court found that the Board’s denial of Dahm’s rezoning application was not arbitrary, capricious, or unreasonable and was based on substantial evidence.

Lastly, Dahm argued that the six month restriction the Board imposed on Dahm before he could appear before the Board again “was not only arbitrary, capricious, and unreasonable, it was also unconstitutional.” Dahm’s argument was largely based on the fact that he would now have to apply under a newly established amendment to the zoning law, which would be “more onerous” than the one he previously applied under. Dahm argued that the amendment now deprived Dahm of “all reasonable use of the property,” and such deprivation constituted a taking. The court disagreed, citing to its own precedent in Gown v. Ward Cnty. Comm’n (764 N.W.2d 425 [2009]), which found that it was an appeal from the decision of a local government and not an “inverse condemnation action.” Thus, the court declined to address Dahm’s takings argument.

The court also found that the restriction was not arbitrary, capricious, or unreasonable because Dahm had already presented his project to the Board “three months in a row without adequately resolving the issues.” Because of Dahm’s repeated attempts seeking to rezone the property without making the necessary changes the Board was not unreasonable in imposing a six-month restriction. The court affirmed the decision of the district court.

Dahm v. Stark County County Bd. Of County Com’rs, 841 NW2d 416 (ND 12/192013)

The opinion can be acessed at:

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