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Dahm v. Stark County Bd. of County Com'rs

Supreme Court of North Dakota

December 19, 2013

Richard DAHM, Appellant

Page 417

[Copyrighted Material Omitted]

Page 418

Amy L. De Kok (argued), Jillian Rupnow (appeared), and Lawrence Bender (on brief), Bismarck, ND, for appellant.

Mitchell D. Armstrong, Bismarck, ND, for appellees.

Page 419

VANDE WALLE, Chief Justice.

[¶ 1] Richard Dahm appealed from a district court judgment affirming the decision of the Stark County Board of County Commissioners (" County Board" ) to deny his application for a zoning change and a preliminary plat approval. We affirm, holding the County Board's decision to deny the application and institute a six-month appearance prohibition was not arbitrary, capricious, or unreasonable. We also hold the district court did not err in denying Dahm's motion to submit additional evidence.


[¶ 2] In July 2012, Dahm submitted an application to the County Board for a zoning amendment to change his property designation from agricultural to residential. Dahm also sought approval of a preliminary plat called Duck Creek Estates. The purpose of the application was to obtain approval for the creation of a ninety-nine lot residential subdivision to " provide a rural living environment in a quasi-urban setting...." The land at issue is located within a portion of the East Half of Section 2, Township 139, Range 97. The land is two miles west of the Dickinson city limits, and located in between Interstate-94 to the north and Highway 10 to the south. The property is adjacent to a previously platted subdivision called Maryville Subdivision.

[¶ 3] Two public hearings were held before the Planning and Zoning Commission. At the first hearing, City and County Planner Steve Josephson recommended denying Dahm's application based on several alleged deficiencies: Dahm did not specify which residential district he wanted to re-zone; there was no contract with adjacent land owners ensuring access to Highway 10; the application did not indicate whether road and access widths would meet or exceed Stark County regulations; the application did not indicate what type of bridge would overpass Duck Creek; the application did not delineate the location of wetlands or flood plains or include a flood plain analysis and environmental study; development could result in " pinching" the water flow of Duck Creek; and no potable water was available at the site. Planner Josephson also found the application was inconsistent with the Stark County Comprehensive Plan, a guide for county land development. Rather than making a formal recommendation to the County Board, the Zoning Commission continued the hearing to allow Dahm to revise his application.

[¶ 4] In response, Dahm submitted additional information to the County Board, including a letter responding to the deficiencies, a development narrative, an application package addendum, and proposed zoning maps. The Southwestern District Health Unit also submitted a letter stating that Dahm's plans for a sewer system were satisfactory. Prior to the second public hearing, Planner Josephson again recommended denying Dahm's application based on several deficiencies, including: the lack of a traffic impact analysis; road access did not meet Stark County standards; the application did not include the location of wetlands and flood plains; the absence of a flood plain elevation study to ascertain whether the project met the requirements of the National Flood Insurance Program and state law; the absence of a field wetland delineation for use during U.S. Army Corps of Engineers 404 Permit Process; no potable water; and the application was inconsistent with the Stark County Comprehensive Plan.

[¶ 5] At the second public hearing, Dahm's attorney stated that an adjacent landowner agreed to provide highway access, on the condition that the adjacent

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owner's property could also be re-zoned. Dahm's attorney also claimed traffic density would be about 925 vehicles per day. Members of the neighboring Maryville subdivision voiced their opposition to the application based on concern over traffic and dust control. Planner Josephson also spoke in opposition to the application. Members of the Planning and Zoning Commission reiterated their trepidation about traffic access points, increased traffic density, and the lack of a study concerning the wetlands and flood plains. Based on these concerns, the Zoning Commission voted 8-0 to recommend a denial of the zoning amendment request.

[¶ 6] The County Board adopted the recommendation of the Zoning Commission and denied Dahm's request by a vote of 5-0. In voting to deny the application, Commissioner Elkin stated:

This project has come before us three times already— three months in a row. The issues that were of concern by the planning and zoning board were never addressed, fencing issues, road issues, sewage issues, and with that I'm going to second that motion to deny with a condition that they not be allowed to come before us for six months.

In its motion denying the application, the County Board also included a provision that Dahm could not appear before the County Board for six months.

[¶ 7] Dahm appealed the County Board's decision to the district court and also sought to introduce evidence of similar zoning requests that had been previously approved by the County Board. Dahm also argued two of the County Commissioners, Jay Elkin and Russell Hoff, had " direct pecuniary involvement in recent land development in the same vicinity as the Project," and their decision to deny the application had possibly been colored by their own economic self-interest. The court denied Dahm's motion to submit additional evidence and affirmed the County Board's decision to deny the application for zoning change.


[¶ 8] In an appeal from a board of county commissioners, we have stated that the " principle of separation of powers precludes parties from relitigating the correctness and propriety of the county [board'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." Hagerott v. Morton Cnty. Bd. of Comm'rs, 2010 ND 32, ¶ 7, 778 N.W.2d 813. Accordingly, our standard of review is very deferential:

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. This Court's function is to independently determine the propriety of the [Board's] decision without giving special deference to the district court decision. The [Board's] decision must be affirmed unless the local body acted arbitrarily, capriciously, or unreasonably, or there is not substantial evidence supporting the decision. A decision is not arbitrary, capricious, or unreasonable if the exercise of discretion is the product of a ...

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