Although house not yet built, landowner had standing to claim injury from CAFO approval
by Allison Arends
Hagerott v. Morton County Board of Commissioners
(North Dakota Supreme Court, February 22, 2010)
In 2008 Fred Berger applied to the Morton County Commission for a conditional use permit that would relocate an existing feed operation to a proposed site that was zoned for agricultural use. The Morton County Feeding Operation ordinance requires a minimum separation of one mile between feedlots and residences. Berger’s application indicated that there were no existing residences within one mile of his proposed feed lot; however, Donald Hagerott had also applied for a building permit in 2008 in order to build a house for his son, Mark Hagerott. The house would sit within one mile of the proposed feedlot. The Morton County Building Department issued him a building permit, noting that it was null and void if construction was delayed or suspended for a period of 180 days. Although the Hagerott’s placed a mobile home on the property they did, in fact, delay construction for over 180 days. Hagerott maintained that the delay was a result of Berger’s pending application for the feedlot.
The commission approved Berger’s application for a 8,000 animal feeding operation and Hagerott appealed. The district court found that Hagerott did not have standing to challenge the commission’s approval. Hagerott then appealed to the North Dakota Supreme Court.
The North Dakota Supreme Court first noted that for an individual to have standing, he must have some legal interest that may be enlarged or diminished by the decision to be appealed from, and such party must be injuriously affected by the decision. In regards to Hagerott’s standing the court found that, “the commission’s decision to grant a conditional use permit for a feedlot within the one mile odor setback of the proposed house has the effect of diminishing and injuriously affecting his personal and individual interest in his land in a manner different than that suffered by the public generally,” therefore making him factually aggrieved by the issuance of Berger’s conditional use permit and providing him with standing to appeal the commission’s decision.
In response to Hagerott’s second claim, the court first made clear that a county commission’s decision to issue a conditional use permit must be affirmed unless the commission acted arbitrarily, capriciously, or unreasonably, or if there is not substantial evidence supporting the decision. The court went on to find that the commission correctly concluded that the Hagerotts did not have an “existing residence” within one mile of Berger’s proposed feedlot after extensive consideration of what constitutes an existing residence. The court also found that there was no evidence that the Hagerott’s made substantial expenditures in reliance on the zoning ordinance and therefore had no protection against zoning changes prohibiting that use. The court found that the commission issued the conditional use permit through a “reasoned discussion and mental process for the purposes of achieving a reasoned and reasonable interpretation,” and therefore did not act arbitrarily, capriciously or unreasonably. The North Dakota Supreme Court therefore affirmed the district court’s decision.