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Hector v. City of Fargo

February 3, 2009


Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Steven E. McCullough, Judge.

The opinion of the court was delivered by: VandeWalle, Chief Justice.


[¶1] Fred and Earlyne Hector appealed from a district court judgment affirming the decision of the Fargo City Commission to deny their application for zoning map amendments and growth plan modifications regarding their property located in south Fargo. We affirm, holding the City did not act arbitrarily, capriciously or unreasonably when it denied the Hectors' zoning request. Furthermore, we hold the district court did not err when it found the City had adopted a comprehensive plan as required by N.D.C.C. § 40-47-03, and the City did not engage in illegal contract zoning with the Hectors.


[¶2] Fred and Earlyne Hector own land north of 52nd Avenue South in Fargo. The land at issue is divided into two quarter sections by a stretch of I-29 which bisects the land from north to south. To the west of the interstate lies the Southeast Quarter of Section 34, Township 139 North, Range 49 West ("Starr Quarter"); to the east lies the Southwest Quarter of Section 35, Township 139 North, Range 49 West ("Frontier Quarter"). The Starr Quarter is characterized, in part, by its proximity to other developments, including a residential development known as Woodhaven platted to the west, the Kennedy Elementary School located to the northwest, and the Microsoft Business Solutions campus immediately to the north. The area surrounding the Frontier Quarter is less populated, with a residential development approximately 1/4 mile away. Both the Starr and Frontier Quarters have long been zoned by the City of Fargo as "agricultural," which allows the land to be used for agricultural purposes, detached houses, parks and open space, utilities, day care, safety services and telecommunications facilities.

[¶3] On April 24, 2007, the Hectors submitted a request for amendments to the area growth plan and zoning map to have significant portions of the Starr and Frontier Quarters re-zoned as "general commercial," which would allow the land to be used for retail, service, office and commercial uses. The Hectors' initial April 24, 2007, request sought cumulative zoning changes of 95.6 acres for the Starr Quarter and 50 acres for the Frontier Quarter. On May 17, 2007, in response to concerns communicated to the Hectors by City representatives regarding the proposed amendments and how they might affect road access points, utility easements, and construction issues, the Hectors submitted a "second alternative" revised application. This May 17 application reduced the requested commercial area to 83.2 acres on the Starr Quarter, and 49 acres on the Frontier Quarter. On May 22, 2007, the Hectors' counsel met with City officials who expressed concerns regarding storm water retention in the area. Subsequently, on May 24, 2007, the Hectors submitted a third alternative request, reducing proposed commercial zoning in the Frontier Quarter to 45 acres, and agreeing to certain concepts in the Starr Quarter, including the preservation of a frontage road and the designation of a plot for storm water retention.

[¶4] The staff of the City of Fargo Planning Department conducted an analysis of the Hectors' requests and prepared its staff report and recommendations on the potential amendments to the growth plan and zoning map. The staff based its analysis on the revised applications from May 17, 2007, and May 24, 2007, and considered both the Starr and Frontier Quarters in its report. The staff reviewed whether the proposed amendments were consistent with surrounding land usage, and evaluated the proposals under the criteria promulgated in Fargo's Land Development Code for analyzing zoning map amendments. The staff found that, while commercial development was consistent with the nature of the Frontier Quarter, due emphasis had not been placed on ensuring such development would be compatible with the surrounding area, the proposed zone change was too intense and not in keeping with the City's plans, and any amendments should be postponed to allow for a more detailed determination on the appropriate acreage for commercial development on the quarter. Regarding the Starr Quarter, the staff believed the proposals "too intense" when factoring in the burgeoning Woodhaven residential area, the Kennedy Elementary School, and the City's desire to "preserve the integrity" of the Microsoft Business Solutions campus. The staff concluded its analysis by unanimously recommending the Hectors' proposed amendments be denied for failing to "satisfy the approval criteria and . . . the Land Development Code."

[¶5] A public hearing on the Hectors' application was held on August 13, 2007. The City Commission heard testimony from a representative of the Hectors who presented argument in favor of the amendments. The Senior Planner for the City of Fargo testified that the Planning Department staff had been generally supportive of commercial expansion in the Frontier Quarter, but due to "opposition of the neighborhood" recommended denial of the amendment. While the Commission noted that no written protest or objection to the Hectors' application had been received by or filed in the Planning and Development Department, a few citizens did voice opposition to the proposed amendments at the public hearing. At the end of the hearing, the Commission voted to accept the findings and recommendations of the Planning Department and denied the Hectors' application.

[¶6] On September 12, 2007, the Hectors appealed the decision of the City Commission to the East Central Judicial District Court. At the district court, the Hectors argued the City committed a series of constitutional violations, failed to identify and articulate reasons for denying the Hectors' zoning requests, unlawfully expanded the role of the City Planner and City Commission in zoning decisions, engaged in spot zoning, and improperly granted standing. The district court rejected the Hectors' arguments, and affirmed the decision of the Fargo City Commission.

[¶7] On appeal to this Court, the Hectors argue the district court erred in affirming the decision of the Fargo City Commission, contending the Commission acted in an arbitrary, capricious and unreasonable manner when it considered the Hectors' application. The Hectors further argue the City of Fargo did not comply with the North Dakota Century Code by failing to implement a comprehensive zoning plan, and that the City has engaged in illegal contract zoning.


[¶8] The Hectors argue the Fargo City Commission acted in an arbitrary, capricious and unreasonable manner when it denied their proposed amendments to the zoning map and growth plan, and that the district court erred when it affirmed the Commission's decision.

[¶9] In an appeal from the decision of a local governing body, this Court's scope of review is very limited. Pic v. City of Grafton, 1998 ND 202, ¶ 6, 586 N.W.2d 159. This Court's function is to independently determine the propriety of the local governing body's decision, without any special deference to the district court's decision. Anderson v. Richland County Water Res. Bd., 506 N.W.2d 362, 367 (N.D. 1993). The decision of a local governing body must be affirmed unless the local body acted arbitrarily, capriciously or unreasonably, or if there is not substantial evidence supporting the decision. Graber v. Logan County Water Res. Bd., 1999 ND 168, ¶ 7, 598 N.W.2d 846. Such a standard of review ensures that the court does not substitute its judgment for that of the local governing body which initially made the decision. See Pic, 1998 ND 202, ¶ 11, 586 N.W.2d 159. A decision is not arbitrary, capricious or unreasonable if it is the product of a rational mental process by which the facts and law relied upon are considered together for the purpose of achieving a reasoned and reasonable interpretation. Klindt v. Pembina County Water Res. Bd., 2005 ND 106, ¶ 12, 697 N.W.2d 339. In an appeal from a non-judicial decision, such as a city commission's denial of a zoning amendment request, the record is adequate to support the findings and conclusions of the city if it allows us to discern the rationale for the decision. See Lindteigen v. City of Bismarck, 1997 ND 123, ¶ 7, 565 N.W.2d 47.

[¶10] Fargo's Land Development Code provides a framework by which the City must operate when amendments to the zoning map are proposed. First, the City Planner must review the proposals and "provide a report to the Planning Commission describing the purpose and effect of the amendment." FMC § 20-0906(C) (2005). Next, the Planning Commission must hold a public hearing on the proposed zoning map amendment and, subsequently, make a recommendation to the Board of City Commissioners. FMC § 20-0906(D). Once this recommendation is made, the City Commission ...

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