ND Attorney General: Junk ordinance not “zoning” to allow for use in extraterritorial zoning area

by Gary Taylor

North Dakota Attorney General Letter Opinion 2014-L-6 (March 13, 2014)

N.D.C.C. § 40-06-01(2) provides that the governing body of a municipality has general police power jurisdiction “[i]n and over all places within one-half mile . . . of the municipal limits for the purpose of enforcing health ordinances and regulations, and police regulations and ordinances adopted to promote the peace, order, safety, and general welfare of the municipality.” A city is also authorized to apply its zoning and subdivision regulations up to four miles beyond the city limits, depending upon the population of the city.

The city of Grand Forks’ extraterritorial zoning jurisdiction extends to four miles beyond the city limits.  In 1978, the North Dakota Supreme Court determined that a city has complete zoning control in this extraterritorial zoning area; however, since state law changes in 2009, the city and the county now exercise joint jurisdiction within the two to four mile area. The city of Grand Forks and Grand Forks County have signed a zoning and subdivision agreement which provides that the “[c]ity shall be responsible for all zoning and subdivision administration, activities and regulation for areas within the 2 mile area beyond the city limits.”  Grand Forks County has argued that the city’s nuisance ordinances regulating the accumulation of junk may be treated as zoning ordinances pursuant to the city’s general authority to regulate land and thus be enforced in the city’s extraterritorial zoning area.  The North Dakota Attorney General (AG), however, disagrees.

The AG looked to the North Dakota Supreme Court case of Jamestown v. Tahran, involving ordinances of the city of Jamestown that prohibited the storage or accumulation of trash, rubbish, junk, junk automobiles, or abandoned vehicles on any private property. The court rejected the argument that the ordinance constituted a zoning ordinance, stating, “[t]he plain language of the ordinance . . . indicates it is a criminal ordinance generally applicable throughout the City . . . and not a zoning ordinance.”  Similarly, the AG considers the plain language of the city of Grand Fork’s ordinances regarding the accumulation of junk to indicate they are criminal ordinances and not zoning ordinances.

The AG also noted that because the city’s junk ordinances are not zoning ordinances, there is no limitation on the county’s ability to enforce its own junk ordinances within the extraterritorial area in question.


City (WI) cannot use extraterritorial plat approval authority to regulate land use

by Rachel Greifenkamp

Lake Delavan Property Company, LLC v. City of Delavan

(Wisconsin Court of Appeals, February 12, 2014)

Delavan, a city in southeastern Wisconsin recently attempted to “protect rural character and farming viability” by utilizing its extraterritorial plat approval authority to deny a proposal made by Lake Delavan Property Company to develop a 600-home subdivision just outside of the city limits.  According to WIS. STAT. § 236.10(1)(b), a municipality is authorized to exercise extraterritorial plat approval authority over land within one and one-half miles of the city limits. The land that the developer purchased is in the Town of Delavan, but within one and one-half miles of the City of Delavan.

The question in this case was whether the City’s denial of the Company’s plan is prohibited by WIS. STAT. § 236.45(3)(b). This provision states that a city may not use its extraterritorial power to deny the approval of a plat on the basis of the proposed land use unless the denial is based on zoning regulations passed cooperatively with neighboring towns. The only part of the statute that was contested was whether the proposed subdivision was denied on the basis of the proposed land use. The city maintained that the denial was based on its application of its density restrictions (one residential dwelling per 35 acres in the extraterritorial area), which is a permissible use of extraterritorial plat approval authority. Conversely, the developer claimed that the thirty-five acre density restriction is designed to keep the borders of the city agricultural.

When a developer believes that the denial of a plat was arbitrary, unreasonable, or discriminatory, they can appeal to the circuit court where, if it is found that the denial of the plat was arbitrary, unreasonable, or discriminatory, the court will direct the City to approve the plat. In the circuit court it was ruled that the city acted outside its jurisdiction by using its extraterritorial power to deny the proposed plat based on land use. The state court of appeals agreed with the circuit court. “The city’s 35-acre density restriction is an improper use if its extraterritorial plat approval authority to rezone land….Common knowledge and experience tell us that the ordinance’s blanket density requirements effectively preclude residential development throughout extraterritorial jurisdiction. Indeed, the ordinance’s preamble states the ordinance was enacted ‘in order to protect rural character and farming viability.'”  The judgment in favor of Lake Delavan Property Company was affirmed.

Village’s extraterritorial zoning valid and applicable to condominium development

by Kaitlin Heinen

Village of Newburg v. Deerprint Enterprises, LLC
(Wisconsin Court of Appeals, August 15, 2012)

Deerprint Enterprises, LLC filed a motion for summary judgment seeking declaration that its condominium plat the Town of Trenton approved in 2007 is not subject to the Village of Newburg’s extraterritorial plat approval ordinances. The Village also filed a motion for summary judgment seeking declaration that the Town’s earlier approval is void, so as to require that Deerprint’s development be reapproved. The circuit court granted the Village’s motion and denied Deerprint’s.

The case was previously before the Court of Appeals on a related question.  Deerprint proposed a 6-unit condominium that sits on a 35-acre parcel of land zoned as CES-5 Country Estates under the Town’s zoning ordinance. This zoning allows one single-family unit per a minimum of 5 acres in a residential development; however one of the condominium units was initially commercial. The Village objected to the Town’s approval of the mixed-use development, designated as a Planned Development Overlay (PDO) and sought a declaration that it was invalid under the Village’s extraterritorial zoning authority that was in place at the time. The Wisconsin Court of Appeals agreed and remanded the case to the trial court.

On remand, the trial court held the Town’s approval was null and void and granted the Village’s motion for a summary judgment. Deerprint then simply amended their condominium declaration to make all units residential. The Village objected, arguing that no valid condominium plat existed that could be amended, since the Town’s approval had since been invalidated, and was never re-submitted to the Village for approval. The trial court found that amending the rejected declaration was insufficient and granted the Village’s request for summary judgment. Deerprint appealed again, or as Judge Todd K. Martens cleverly remarked, Deerprint “essentially [tried] for a second kick at the same old cat.”

Deerprint argued that the circuit court erred in that neither the Town nor the Village can prohibit the condominium form of ownership according to WIS. STAT. §703.27(1), but the Wisconsin Court of Appeals disagreed. The trial court did not require Deerprint to get approval for condominium ownership but to be approved for a multi-family residential development on land zoned for single-family residence per five acres. Additionally, WIS. STAT. §703.27(1) does not exempt condominiums from zoning regulations. Rezoning via another PDO is required then since the first PDO designation was invalidated.

WIS. STAT. §703.27(1) “(1) prohibits zoning ordinances from either outlawing the condominium form of ownership or imposing on condominiums requirements not imposed on other forms of ownership; and (2) requires a municipality to pass an ordinance if it wants to apply subdivision ordinances to condominiums.”  WIS. STAT. §236.10(1)(b) requires approval by both the town and the governing municipality for the property within the overall jurisdiction of both. The Village’s extraterritorial plat approval encompasses the condominium plat by VILLAGE OF NEWBURG,WIS., ORDINANCES ch. 18, § 18.04(6)(b) (2007), which expressly states that platting regulations are applicable to condominiums. Also, WIS. STAT. §236.45 authorizes a municipality to regulate subdivisions, which are applicable outside city and village boundaries. And WIS. STAT. § 703.27(1) authorizes the inclusion of condominiums under these regulations. Since the Village’s ordinance expressly refers to condominiums, it is applicable to Deerprint’s parcel.

The Court held that all zoning provisions have to be met for a condominium to be valid. Deerprint’s parcel clearly lies within the Village’s jurisdiction, and Deerprint has never sought approval from the Village. So the judgment of the circuit court was affirmed.

Wisconsin town’s action amounted to defacto rezoning in violation of moratorium

by Allison Arends

State Of Wisconsin Ex Rel. Village of Newburg v. Town of Trenton
(Court Of Appeals Of Wisconsin, August 26, 2009)

Wis. Stat 62.23(7a) allows a municipality to temporarily enact a moratorium that prohibits adjacent unincorporated towns from changing the zoning of land within 1.5 miles of the municipality’s boundaries.  The moratorium gives the municipality time to work with each unincorporated town affected to prepare and adopt a comprehensive plan on how the land in that unincorporated town should be used.  The Village of Newburg adopted a temporary moratorium on  land within 1.5 miles of its boundaries for two years as of November 20th 2006. A parcel of land owned by Deerprint Enterprises, LLC, is located within the neighboring Town of Trenton and also within the Village of Newburg’s extraterritorial zoning moratorium. At the time the moratorium was put in place the parcel was zoned residential allowing, “single-family residential development in a farmette, or estate-type setting.”  The zoning did not permit commercial or industrial units.

While the moratorium was in place the Town approved a six-unit condominium development on the Deerprint land.  The development included an existing non-conforming commercial business, bud as part of the development agreement, the Town agreed to language that stated that “additional commercial units may be created… by subdividing all or a portion of the space included within the original commercial/industrial unit to form one or more additional commercial units.”

The Village argued that the Deerprint development included nonconforming mixed uses, and in order for this to be legal the Town must approve a planned development overlay for the parcel which, in turn, would require a rezoning in violation of the Village’s moratorium. The village argues that the approval of Deerprint parcel was invalid without an overlay and that the moratorium prohibits the Town from changing the zoning of the land.

The Wisconsin Court of Appeals addressed the Town’s argument that the Deerprint development is an issue of condominiums and not an issue of rezoning.  The court rejects this argument by pointing out that, “a change in zoning—or other approval under a zoning ordinance—should not be required for condominium conversion, unless a change in the use of the existing property is involved.”  The Village successfully illustrates that Deerprint development changed the use of the existing property and therefore an overlay or rezoning of the property was needed. The Deerprint parcel is zoned residential, yet one of the condominium units is identified as commercial/industrial. The court stated, “ We simply do not understand how a condominium unit set aside for commercial use does not run afoul of a zoning ordinance prohibiting commercial use just because it lies within an otherwise residential condominium.” In addition, the Town itself prohibits mixed uses, like Deerprint’s development, unless it grants an overlay which causes the court to conclude that the Deerprint development is a nonconforming use, and further more, that the Town Board, “rezoned without seeking the necessary approval.”

The Town argued that the case was moot because the moratorium had expired by the time it was heard by the trial court.  The court rejected the Town’s argument by analogy: ” a person who violates a statute is subject to that statute’s consequences, even if the legislature repeals the statute before the opposing party commences or completes its cause of action for the alleged offense.” The court also rejects the Town’s argument that the Village has no standing to seek declaratory relief when the court concludes that the Village has a legally protected interest that stems from its extraterritorial zoning authority, and if the Town was to grant an overlay to Deerprint, then its approval would violate the moratorium providing the Village with standing.

This case, as the court points out, presents an instance where a Town attempts to avoid the restrictions inherent to an extraterritorial zoning moratorium by framing its action as something different than a zoning change, when in reality the Town attempts to hide its approval of commercial building by making it a part of an otherwise residential condominium plan. As a result, the court found the Town’s approval to be “de facto rezoning” and therefore a violation of the Village’s extraterritorial zoning moratorium.





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