by Gary Taylor
Dokter v. Burleigh County Board of County Commissioners
North Dakota Supreme Court, July 2, 2015
Dale Pahlke requested rezoning of a 311-acre tract of land in Menoken Township from agricultural to industrial use. 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. Mr. Pahlke intended to subdivide his land into five to ten acre lots. 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.
The matter came before the Burleigh County Planning Commission. The Burleigh County planning staff recommended denial of the application, and included in its report the following conclusions (among others):
- The proposed zoning change is outside the area covered by the Bismarck-Mandan Regional Future Land Use Plan.
- 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.
- 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.
- The proposed zoning change is not consistent with the master plan, other adopted plans, policies and accepted planning practice.
Despite this recommendation the Planning Commission ultimately recommended approval of the application subject to conditions. In its findings of fact the Planning Commission concluded (among other things):
- Burleigh County is in need of large blocks of industrial-zoned property in order to promote reasonable economic growth.
- The property is located adjacent to I-94, and is less than one mile west by frontage road to the Menoken interchange.
- A large electrical transmission line bisects the property, making the property undesirable for residential or commercial use, which militates in favor of industrial use.
- Menoken Township has industrial zoned property off the Menoken exit; all of the 64 acres of available industrial-zoned property located within Burleigh County’s zoning jurisdiction are located in Menoken Township.
- The concerns of surrounding landowners with regard to traffic, noise, pollution, etc. will still be addressed in the subdivision and platting process….
- The zoning change is not inconsistent with Burleigh County’s Comprehensive Plan [citing policies in the plan that favor locating industrial uses convenient to transportation facilities, and favor making adequate land supplies available for industrial use].
After initially voting 3-2 to reject the recommendation of the Planning Commission, the County Board of Commissioners reconsidered and voted to approve the rezoning request. The Dockers appealed to district court but lost, then initiated this appeal to the North Dakota Supreme Court
The Dockters argue the County Commissioners’ decision to rezone the land constituted impermissible spot zoning. They claimed spot zoning cannot be used to favor one landowner or to offer special privileges not enjoyed by neighboring property. They argue characteristics of spot zoning were established in this case, because the rezoned industrial land is different from prevailing agricultural uses in the area, the rezoned land constitutes a small geographical area compared to the surrounding 22,241 acres of land zoned for agricultural use in Menoken Township, the rezoned land benefits one owner and not the greater community, and the rezoned use is inconsistent with Burleigh County’s comprehensive land use plan.
The North Dakota Supreme Court disagreed. Although Pahlke may individually benefit from the zoning change, there was evidence the County Commissioners’ decision benefited Burleigh County as a whole. Tthe director of business development for the Bismarck-Mandan Development Association testified in district court that Burleigh County needed large blocks of property for affordable industrial development and the size of this parcel and its proximity to the interstate could help satisfy that need and bolster economic development. The record supports economic benefits to the community as a whole for the general welfare of the community. “Moreover, this tract of land consists of 311 acres, which was proposed to be divided into five to ten acre lots if the zoning application was approved, which also militates against a claim that the rezoning change involves an individual lot singled out for discrimination, or different treatment.” The Court concluded that a reasonable basis for the County Commissioners’ decision existed, and that the rezoning did not constitute illegal spot zoning.
The Dockters also argued that the County Commissioners’ decision was inconsistent with the Burleigh County land use plan. The Court, however, cited the same land use plan goals identified by the Planning commission: “promot[ing] the quality growth of manufacturing and industrial uses,” and “encourag[ing] industry to locate in planned manufacturing and industrial parks” which “should be located convenient to transportation facilities.” The Court found it “obvious that to meet those goals some land needs to be rezoned to industrial uses.”
The district court’s decision in favor of the County Commissioners was affirmed.
