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Dockter v. Burleigh County Board of County Commissioners

Supreme Court of North Dakota

July 2, 2015

Thane Dockter and Nicole Dockter, Appellants
Burleigh County Board of County Commissioners, Appellee

Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable David E. Reich, Judge.

Micheal A. Mulloy (argued), Bismarck, N.D., and David R. Bliss (appeared), Bismarck, N.D., for appellants.

Scott K. Porsborg, Special Assistant State's Attorney, Bismarck, N.D., for appellee.

Gerald W. VandeWalle, C.J., Dale V. Sandstrom, Daniel J. Crothers, Lisa Fair McEvers, William A. Neumann, S.J. Opinion of the Court by VandeWalle, Chief Justice. The Honorable William A. Neumann, S.J., sitting in place of Kapsner, J., disqualified.


Page 837

VandeWalle, Chief Justice.

[¶1] Thane and Nicole Dockter appealed from a judgment affirming a Burleigh County Board of County Commissioners' decision to rezone a 311 acre tract of land in Menoken Township from agricultural to industrial use. We conclude the County Commissioners' decision does not constitute impermissible spot zoning, and the decision is not arbitrary, capricious, or unreasonable and is supported by substantial evidence. We affirm.


[¶2] In 1971, the Menoken Board of Township Supervisors adopted a resolution under N.D.C.C. § 11-33-20 relinquishing its zoning power over land in the township to the Burleigh County Board of County Commissioners. In 1980, the County Commissioners adopted a comprehensive land use plan under N.D.C.C. ch. 11-33 for

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land within its jurisdiction in Burleigh County, including Menoken Township.

[¶3] In March 2013, Dale Pahlke applied to the Bismarck-Burleigh County Planning and Development Department to rezone 311 acres of his land in Menoken Township from agricultural use to light industrial use. Pahlke's application proposed to subdivide his land into five to ten acre lots if his rezoning request was granted. Pahlke's land is located on the north side of Interstate 94 and on the west side of 145th Street NE, about 1 mile west of the Menoken interchange and just north of an interstate rest area. Except for the interstate corridor, the land is surrounded by property zoned for agricultural use. In 2009, the Dockters purchased land directly north of Pahlke's land, and they operate a certified organic farm on their land. The Dockters opposed Pahlke's application, claiming industrial use of the adjacent land could contaminate their fields and result in loss of certification of their organic farm.

[¶4] Before an April 2013 meeting of the Burleigh County Planning Commission, the Planning Commission's staff prepared a report recommending denial of Pahlke's application:

1. The proposed zoning change is outside the area covered by the Bismarck-Mandan Regional Future Land Use Plan.
2. The proposed zoning change is not compatible with adjacent land uses. Adjacent land uses include agriculture and related agriculture uses to the north, south, east and west.
3. Although the proposed zoning change is located along Interstate 94, the proposed zoning change may place an undue burden on public facilities or services. In particular, access to and from the property would be obtained one mile east, at the interchange in Menoken.
4. The proposed zoning change may adversely affect property in the vicinity. In particular, the proposed industrial land use may have an adverse impact on the surrounding agriculture-related uses.
5. The proposed zoning change is not consistent with the master plan, other adopted plans, policies and accepted planning practice. In particular, locating a 310 acre industrial site with access approximately one mile east of the interchange at Menoken and in an area surrounded by agriculturally zoned property and agriculture-related land uses is contrary to accepted planning practices and policies of the Burleigh County Comprehensive Land Use Plan.

[¶5] At the April 2013 meeting, the Planning Commission voted to hold a public hearing on Pahlke's application. At further public hearings, the Planning Commission heard comments from Thane Dockter and other community members against the application and from Pahlke about the need for large tracts of industrial property in Burleigh County. The Planning Commission ultimately recommended approving the application for the zoning change, subject to the following conditions:

1. That the County Commission develop stipulations to address the concerns raised by the Planning Commission and the property owners within Menoken Township, including the impact on the adjacent organic farm, noise control, screening, and the potential archeological significance of the site due to its proximity to the Menoken Village State Historic Site; and
2. The County Commission develops a list of acceptable uses for the site.

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In recommending approval of the zoning change, the Planning Commission also made written findings:

1. Burleigh County is in need of large blocks of industrial-zoned property in order to promote reasonable economic growth. While there are a total of 1,065 acres of total industrial-zoned property available in Burleigh County, most of those acres are in smaller tracts located within the ...

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