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Hagerott v. Morton County Board of Commissioners

February 22, 2010

DONALD HAGEROTT AND MARK HAGEROTT, APPELLANTS
v.
MORTON COUNTY BOARD OF COMMISSIONERS, APPELLEE



Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Bruce B. Haskell, Judge.

The opinion of the court was delivered by: Maring, Justice

AFFIRMED.

[¶1] Donald and Mark Hagerott appeal from a district court order affirming a decision by the Morton County Board of Commissioners to issue Fred Berger a conditional use permit to operate a feedlot on Berger's property in Morton County. The Hagerotts argue they have standing to challenge the conditional use permit, the Morton County Commission's interpretation of a Morton County Animal Feeding Operation ordinance and issuance of the conditional use permit are arbitrary, capricious, and unreasonable, and the Commission's issuance of the conditional use permit constitutes a taking of property without just compensation. We hold Donald Hagerott has standing to challenge the conditional use permit and the Commission's decision to issue the conditional use permit was not arbitrary, capricious, or unreasonable. We affirm.

I.

[¶2] On May 20, 2008, Berger applied to the Morton County Commission for a conditional use permit to relocate an existing feeding operation for 985 head of cattle, which was located approximately one and one half miles west of Mandan, to a proposed site about ten miles west of Mandan in an area zoned for agricultural use. Berger's application sought a conditional use permit for 10,000 animal units. Berger's application included a copy of an application to the North Dakota Department of Health for approval of a livestock waste system and a copy of a road comment form for the Morton County Road Department. A Morton County Animal Feeding Operation ordinance for special uses in an agricultural district included an odor setback that prohibited Berger from operating a new feedlot within one mile of an "existing residence," and Berger's application stated there were no existing residences within one mile of his proposed feedlot.

[¶3] On May 1, 2008, however, Donald Hagerott had applied for a building permit to build a new house on his property, which was within one mile of the site of Berger's proposed feedlot, and the Morton County Building Department issued him a building permit. Donald Hagerott's building permit said it was "null & void if construction as authorized is not started within 180 days or if construction is suspended for a period of 180 days after construction is started." According to Donald Hagerott, the building permit was for a home for his son, Mark Hagerott, and a mobile home was moved on the land pending construction of the house, an address was obtained for postal and emergency services at the house, a septic permit was obtained, and a road approach permit was obtained and preliminary grading was done for an approach and an access road to the intended building site. The Hagerotts claim they delayed any further investment in the home pending resolution of Berger's application for a conditional use permit for the feedlot.

[¶4] After a June 26, 2008, public hearing, the Morton County Planning and Zoning Commission recommended the Morton County Commission approve Berger's conditional use permit for 8,000 animal units, conditioned on Berger meeting "all EPA, State Health Department, [and] State Agricultural Department requirements" and satisfying the Morton County Commission's requests for road improvements.

[¶5] At a regularly scheduled meeting on July 1, 2008, the Morton County Commission considered the Planning and Zoning Commission's recommendation, heard public comment about Berger's application for a conditional use permit, and tabled discussion on the application. Following further discussion at a special meeting on July 17, 2008, the Morton County Commission approved Berger's application for a conditional use permit by a vote of three to two. The Commission, through the county auditor, issued a letter to Berger on August 8, 2008, approving his application for a conditional use permit to operate a feedlot for 8,000 animal units on his property subject to requirements that: (1) he must obtain a State Health Department permit for an 8,000 unit feeding operation and put the feedlot into operation within twenty-four months; (2) he must comply with recommendations of the Morton County Road Department; and (3) he must comply with EPA requirements and other environmental standards for an 8,000 unit animal feeding operation.

[¶6] The Hagerotts appealed to the district court, which affirmed the Morton County Commission's decision. The district court decided Mark Hagerott was not an "aggrieved" person and lacked standing to appeal the decision, because he had no property interest affected by the decision. The court decided Donald Hagerott was not an "aggrieved" person and lacked standing to appeal the decision, because the proposed residence was for Mark Hagerott. The court nevertheless considered the merits of the Hagerotts' appeal and decided the Morton County Commission's determination there was no existing residence within one mile of the proposed feedlot was not arbitrary, capricious, or unreasonable. The court also decided that, in the absence of detrimental reliance, the Hagerotts did not have a vested right to construct their intended residence within one mile of the proposed feedlot based on the mere issuance of the building permit and that the Hagerotts failed to establish detrimental reliance. The court further decided the Morton County Commission considered all pertinent factors for a conditional use permit even though it did not issue written findings. The court also decided the Hagerotts' claim of a taking without just compensation was not properly before the court in the context of an appeal from the Morton County Commission's decision to issue the conditional use permit.

II.

[¶7] For appeals from county commission determinations, this Court's decisions make clear that the principle of separation of powers precludes parties from relitigating the correctness and propriety of the county commission's decision and prevents a reviewing court from sitting as a super board and redeciding issues that were decided in the first instance by the county commission. E.g., Pulkrabek v. Morton County, 389 N.W.2d 609, 612-13 (N.D. 1986) (citing Shaw v. Burleigh County, 286 N.W.2d 792, 796-97 (N.D. 1979)). We recently described that limited and deferential standard of review of decisions by local governing bodies:

"When considering an appeal from the decision of a local governing body under N.D.C.C. § 28-34-01, our scope of review is the same as the district court's and is very limited. Tibert v. City of Minto, 2006 ND 189, ¶ 8, 720 N.W.2d 921 (citing Pic v. City of Grafton, 1998 ND 202, ¶¶ 6, 8, 586 N.W.2d 159). This Court's function is to independently determine the propriety of the [Commission's] decision without giving special deference to the district court decision. Tibert, at ¶ 8. The [Commission's] decision must be affirmed unless the local body acted arbitrarily, capriciously, or unreasonably, or there is not substantial evidence supporting the decision. Id. (citing Graber v. Logan County Water Res. Bd., 1999 ND 168, ¶ 7, 598 N.W.2d 846). `A decision is not arbitrary, capricious, or unreasonable if the exercise of discretion is the product of a rational mental process by which the facts and the law relied upon are considered together for the purpose of achieving a reasoned and reasonable interpretation.' Tibert, at ¶ 8 (citing Klindt v. Pembina County Water Res. Bd., 2005 ND 106, ¶ 12, 697 N.W.2d 339). `We fully review the interpretation of an ordinance, and a governing body's failure to correctly interpret and apply controlling law constitutes arbitrary, capricious, and unreasonable conduct.' City of Fargo v. Ness, 551 N.W.2d 790, 792 (N.D. 1996) (citing Gullickson v. Stark County Comm'rs, 474 N.W.2d 890, 892 (N.D. 1991))."

Gowan v. Ward County Comm'n, 2009 ND 72, ¶ 5, 764 N.W.2d 425, cert. denied, 130 S.Ct. 288 (2009) (quoting Hentz v. Elma Twp. Bd. of Supervisors, ...


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