IN THE SUPREME COURT
STATE OF NORTH DAKOTA
| Donald Hagerott & Mark Hagerott, | ||
| Plaintiffs/Appellants, | ||
| Supreme Court No. 20090180 | ||
| vs. | Morton County No. 30-08-C-663 | |
| Morton County Board of Commissioners, | ||
| Defendant/Appellee. | ||
APPEAL FROM ORDER
DATED DECEMBER 29, 2008, AND THE
JUDGMENT OF SAID DISTRICT COURT
ENTERED ON APRIL 22, 2009
MORTON COUNTY DISTRICT COURT, SOUTH CENTRAL JUDICIAL DISTRICT
THE HONORABLE BRUCE B. HASKELL, PRESIDING
BRIEF OF APPELLEE MORTON COUNTY BOARD OF COMMISSIONERS
| Randall J. Bakke #03898 |
| David R. Phillips # 06116 |
| SMITH BAKKE PORSBORG SCHWEIGERT |
| 116 North Second Street |
| P.O. Box 460 |
| Bismarck, ND 58502-0460 |
| (701) 258-0630 |
| rbakke@smithbakke.com |
| Attorneys for Appellee, |
| Morton County Board of Commissioners |
| TABLE OF CONTENTS | |||||
Paragraph | |||||
| Number | |||||
| TABLE OF CONTENTS | |||||
| TABLE OF AUTHORITIES. | |||||
| STATEMENT OF THE ISSUES | 1 | ||||
| I. STATEMENT OF THE CASE | |||||
| 2 | |||||
| II. STATEMENT OF FACTS | |||||
| 5 | |||||
| A. | Evidence Was Presented To The Morton County Commission | ||||
| That Donald Hagerott's Motive Was To Block The Proposed | |||||
| Berger Feedlot | 5 | ||||
| B. The Morton County Commissioners Appropriately Considered | |||||
| The Benefits and Detriments Of The Proposed Berger F | 7 | ||||
| C. The Morton County Commissioners Correctly Determined That | |||||
| Hagerott's Trailer Was Not An "Existing Residence" | 12 | ||||
| IV. ARGUMENT . | |||||
| 17 | |||||
| A. | Mark Hagerott And Donald Hagerott Do Not Have Standing To | ||||
| Appeal The Decision Of Morton County To Grant Fred Berger's | |||||
| Conditional Use Permit | 18 | ||||
| 1. Mark Hagerott Does Not Have Standing To Appeal | |||||
| 19 | |||||
| 2. Donald Hagerott Does Not Have Standing To Appeal | |||||
| 22 | |||||
| B. Morton County's Decision To Grant Fred Berger's Conditional | |||||
| Use Permit Was Not Arbitrary, Capricious or Unreasonable | 23 | ||||
| 1. Applicable Standard Of Review | |||||
| 24 | |||||
| 2. Neither Donald Hagerott Nor Mark Hagerott Had Or Have A Vested Right To Construct A Home | |||||
| 27 | |||||
| 3. There Was No "Existing Resident" Within One Mile Of Fred Berger's Proposed Feedlot | |||||
| 37 | |||||
| C. The Issue Of Taking Without Just Compensation Is Not Properly | |||||
| Before This Court And There Was No Taking In Any Event | 50 | ||||
| IV. CONCLUSION | |||||
| 56 | |||||
| CERTIFICATE OF COMPLIANCE | 57 | ||||
| CERTIFICATE OF SERVICE | 58 | ||||
| TABLE OF AUTHORITIES | |||
| CASES | Paragraph | ||
Number | |||
| Burlington Northern R.R. v. State By and Through Hanson, | |||
| 500 N.W.2d 615 (N.D. 1993) | 42 | ||
| Chapman v. Chapman, 2004 ND 22, 673 N.W.2d 920 | 19 | ||
| City of Fargo, Cass County v. Harwood Tp., 256 N.W.2d 694 (N.D. 1977) | 32, 33 | ||
| City of Fargo v. Malme, 2008 ND 172, 756 N.W.2d 197 | 50 | ||
| City of Minot v. Boger, 2008 ND 7, 744 N.W.2d 277 | 44, 55 | ||
| Dorman v. Township of Clinton, 714 N.W.2d 350 (Mich. Ct. App. 2006) | 55 | ||
| Douville v. Pembina County Water Res. Dist., 2000 ND 124, | |||
| 612 N.W.2d 270 | 24 | ||
| Fargo Beverage Co. v. City of Fargo, 459 N.W.2d 770 (N.D. 1990) | 32, 33 | ||
| GO Committee v. City of Minot, 2005 ND 136, 701 N.W.2d 865 | 44 | ||
| Gowan v. Ward County Commission, 2009 ND 72, 764 N.W.2d 425 | 50 | ||
| Graber v. Logan County Water Res. Bd., 1999 ND 168, | |||
| 598 N.W.2d 846 | 24 | ||
| Hentz v. Elma Twp. Bd. of Supervisors, 2007 ND 19, 727 N.W.2d 276 | 44 | ||
| Klindt v. Pembina County Water Res. Board, 2005 ND 106, | |||
| 697 N.W.2d 339 | 24 | ||
| Knudtson v. Trainor, 345 N.W.2d 4 (1984) | 42 | ||
| Larson v. Larson, 2005 ND 19, 727 N.W.2d 276 | 44 | ||
| Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005) | 52, 53, 54 | ||
| MC Props., Inc. v. City of Chattanooga, 994 S.W.2d 132 | |||
| (Tenn. Ct. App. 1999) | 55 | ||
| Munch v. City of Mott, 311 N.W.2d 17 (N.D. 1981) | 44 | ||
| Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978) | 54 | ||
| Pic v. City of Grafton, 1998 ND 202, 586 N.W.2d 159 | 25 | ||
| Pulkrabek v. Morton County, 389 N.W.2d 609 (N.D. 1986) | 25, 44 | ||
| Treiber v. Citizens State Bank, 1999 ND 130, 598 N.W.2d 96 | 20 | ||
| Triple Quest, Inc. v. Cleveland Gear Co., 2001 ND 101, | |||
| 627 N.W.2d 379 | 19 | ||
| Wild Rice River Estates v. City of Fargo, 2005 ND 193, | |||
| 705 N.W.2d 850 | 52, 54 | ||
| STATUTES | |||
| N.D.C.C. § 1-02-02 | 44 | ||
| N.D.C.C. § 1-02-05 | 44 | ||
| N.D.C.C. § 11-33-01 | 11 | ||
| N.D.C.C. § 11-33-02.1(1)(d) | 41 | ||
| N.D.C.C. § 11-33-02.1(6) | 41 | ||
| N.D.C.C. § 11-33-12 | 19, 20 | ||
| N.D.C.C. Chapter 28-34 | 4, 50 | ||
| N.D.C.C. § 28-34-01 | 19, 24, 50 | ||
| N.D.C.C. § 57-39.2-04(22) | 42 | ||
| CONSTITUTIONAL PROVISIONS | |||
| ND Const. Art I, Section 16 | 51 | ||
| US Const. Amend. V | 51 | ||
| OTHER AUTHORITIES | |||
| 49 A.L.R.3d 13 | 33 | ||
| 83 Am. Jur. 2d Zoning and Planning § 576 | 35 | ||
| 83 Am. Jur. 2d Zoning and Planning § 577 | 35 | ||
| 83 Am. Jur. 2d Zoning and Planning § 925 | 20 | ||
| Black's Law Dictionary 1308-09 (Sixth Ed. 1991) | 40 | ||
| 8 McQuillan, Municipal Corporations (3d ed. rev.) s 25.66 | 33 | ||
| Morton County Ordinance, Article 5, Section 1, Subd. 1.1 | 39 | ||
| Morton County Ordinance, Article 5, Section 2 | 29 | ||
| Morton County Ordinance Article 20 | 29 | ||
| Morton County Ordinance Article 20, Subd. 2 | 29 | ||
| Morton County Ordinance Article 20, Subd. 5 | 29 | ||
| Morton County Ordinance Article 20, Subd. 6 | 30 | ||
| Morton County Ordinance Article 20, Subd. 7 | 30 | ||
| Webster's New World Dictionary 1209 (Second College Ed. 1979) | 40 | ||
I. Whether plaintiffs/appellants Donald Hagerott and Mark Hagerott have standing to appeal the decision of the Morton County Board of Commissioners to grant Fred Berger's conditional use permit for the development of a cattle feedlot?
II. Whether the decision of the Morton County Board of Commissioners to grant a conditional use permit to Fred Berger for the development of a cattle feedlot was arbitrary, capricious or unreasonable?
III. Whether the issue of alleged unconstitutional taking without just compensation is properly before this Court, and if so, whether there was a taking of Donald Hagerott and Mark Hagerott's property without just compensation? I. STATEMENT OF THE CASE
2. At issue in this appeal is the decision of the Morton County Board of Commissioners (hereinafter "Morton County Commission") to grant a conditional use permit to Fred Berger (hereinafter "Berger") for the development of a cattle feedlot on his property in Morton County, North Dakota. Approval of Berger's application for a conditional use permit to establish the feedlot was recommended by the Morton County Planning and Zoning Commission at a public meeting on June 26, 2008. App. 30-31. Thereafter, the Morton County Commission held two public hearings on the matter, one on July 1, 2008 and one on July 17, 2008. Supp.App. 10-62. As discussed below, the Morton County Commission meetings consisted of more than four hours of testimony and arguments presented to the commission as well as thorough discussion of the benefits and detriments of the proposed feedlot. The Morton County Commission granted the conditional use permit for Berger to operate an 8,000 unit feedlot with the condition that he obtain a State Health Department Permit, put the feedlot into operation within 24 months, comply with the recommendations of the Morton County Road Department, and comply with EPA requirements and other environmental standards. App. 1.
3. Donald Hagerott owns land in the area of the proposed Berger feedlot, Section 31 of Township 140 North, Range 82 West. As shown on an aerial photograph and plat maps in the record on appeal (App. 25-26, 35), the Hagerott property is located southeast of the location of the proposed feedlot. Donald Hagerott and his son Mark Hagerott appealed the decision to grant the conditional use permit because they allegedly plan to construct a home within one mile of the proposed Berger feedlot. Allegedly, Donald Hagerott intended to build the home to give to his son Mark Hagerott to be used by Mark Hagerott as a retirement home. Brief Of Appellants Donald Hagerott & Mark Hagerott (hereinafter "Appellants' Brief") at ¶ 8. Hagerotts never presented any evidence to the Morton County Commission or the District Court that Mark Hagerott has ever had any ownership interest in the real property where the retirement home was supposedly to be constructed. Such construction would arguably not be permitted because of a setback requirement applicable to the feedlot. The applicable setback requirement is found in the Morton County land-use ordinance regarding animal feeding operations, section 2.2. App. at 61-62. The ordinance requires a setback of 1 mile for feedlots of 5,001 animals or more, such as the proposed Berger feedlot, from any "existing residence." Id. The basis of Hagerotts' appeal is that prior to the granting of Berger's conditional use permit, Donald Hagerott obtained a building permit to construct a residence on his own property within one mile of the proposed feedlot. Appellants' Brief at ¶ 8. Donald Hagerott applied for a septic permit, applied for a field access road to the property, established an address for postal service and emergency services, and moved a trailer onto the property allegedly to serve as a residence to be used during construction. Appellants' Brief at ¶ 9. Hagerotts claim these minor preparatory actions created an "existing residence" within one mile of the proposed feedlot. The trailer was at no time relevant herein occupied as a residence. It is important to note the only work done on the Hagerott property within one mile of the proposed Berger feedlot was moving a construction trailer onto the site, with no electrical, water or other services hooked up. The photographs in the record on appeal (App. 76-82) of the subject location speak for themselves as to the fact that there was never any work conducted to begin construction of a residence. There is no evidence of "dirt work" (Appellants' Brief at Statement of the Issues, ¶ I) or any other construction work, only placement of a vacant dilapidated trailer.
4. Hagerotts appealed the Morton County Commission's approval of the Berger conditional use permit to North Dakota District Court, pursuant to North Dakota Century Code Chapter 28-34 regarding appeals of decisions of local governing bodies. After briefing by the parties, the Honorable Bruce B. Haskell, Judge of the District Court, heard oral arguments on the appeal on December 11, 2008. At the conclusion of oral arguments, Judge Haskell ruled orally in favor of the Morton County Commission (Supp.App. 63-69) and later issued a written Order (App. 99-102). The District Court found Donald and Mark Hagerott do not have standing to appeal the decision of the Morton County Commission approving Berger's conditional use permit application. App. 104-05 [¶¶ 2-3]. The District Court found Mark Hagerott is not an aggrieved person and therefore has no standing because he has no property interest affected by the decision of the Morton County Commission, only expectations. App. 104 [¶ 2]. As indicated, Mark Hagerott does not own any property near the proposed feedlot. The District Court found Donald Hagerott is not an aggrieved person and therefore has no standing because the proposed residence on Donald Hagerott's property is intended for Mark Hagerott, not Donald Hagerott. App. 104-05 [¶ 3]. Judge Haskell stated at the hearing that his ruling regarding standing is dispositive of the case, but he nevertheless addressed the substantive merits of the case in the event the North Dakota Supreme Court overturns the District Court order on the standing issue. Supp.App. 63-69. In that regard, the District Court found the decision of the Morton County Commission was not arbitrary, capricious or unreasonable. App. 104 [¶ 1]. The District Court found there was no "existing residence" within one mile of the proposed Berger feedlot. App. 105 [¶ 4]. The District Court further found Hagerotts did not have a vested right to construct a residence within one mile of the location of the proposed Berger feedlot. App. 105-06 [¶ 5]. The District Court also found the Hagerotts' taking without just compensation claim was not properly before the court in an appeal of a decision of a local governing body. App. 106 [¶ 7]. II. STATEMENT OF FACTS A. Evidence Was Presented To The Morton County Commission That Donald Hagerott's Motive Was To Block The Proposed Berger Feedlot
5. The statement of facts in Appellants' Brief begins with the May 1, 2008 application of Donald Hagerott for a building permit. Id. at ¶ 8. Hagerotts' statement of the facts gives the impression that Hagerotts always intended to construct a home on Donald Hagerott's property and obtained a building permit and moved a trailer onto the property to do so. Hagerotts suggest they were subsequently caught off guard by Berger's proposed feedlot.
6. However, the Morton County Commission was not required to accept as true, and this Court is not required to accept as true, the Hagerotts' assertions in that regard. Hagerotts' motive for obtaining a building permit was argued before the Morton County Commission by the attorneys for Berger and Hagerotts and the commissioners took the issue into consideration in making their final determination. At the July 1, 2008 meeting of the Morton County Commission, Berger's attorney, Thomas Kelsch, argued Donald Hagerott merely obtained the building permit to try to stop the proposed Berger feedlot. July 1, 2008 Transcript at pp. 23-24 (Supp.App. 16). Mr. Kelsch warned the commission it could be setting a precedent, arguing to the commission it "should be careful to not encourage somebody to just go out and do this, if you hear that there's going to be a feedlot in an area, go out and apply for a building permit and try to stop that." Id. at p. 23 (Supp.App. 16). Also at the July 1, 2008 meeting, Hagerotts' attorney, Tami Norgard, argued to the contrary, claiming Donald Hagerott did not obtain the building permit and move a trailer onto the property merely to stop the proposed feedlot. Id. at pp. 51-52 (Supp.App. 23). At the July 17, 2008 meeting of the Morton County Commission, Berger's other attorney, William Delmore, argued Hagerotts' motive was merely to block the feedlot, based on statements Donald Hagerott made when he submitted his building permit application. July 17, 2008 Transcript at pp. 39-40 (Supp.App. 57). Mr. Delmore warned about setting a bad precedent, stating, "when we're talking about precedent, you could stop a feedlot anywhere in this state. When you hear the feedlot is going in, application coming in, you come in on a piece of land you have and get a building permit." Id. at p. 40. Shortly before the final vote on the issuance of Berger's conditional use permit, Commissioner Zachmeier stated, "based on everything that I've heard today I'd have to agree with Mr. Delmore, that taking the trailer house out there was nothing more than a blocking measure to stop this project." July 17, 2008 Transcript at p. 55 (Supp.App. 61). B. The Morton County Commissioners Appropriately Considered The Benefits And Detriments Of The Proposed Berger Feedlot.
7. The Morton County Commission held two meetings to discuss Berger's proposed feedlot, one on July 1, 2008 and one on July 17, 2008. The benefits and detriments of the proposed feedlot were discussed thoroughly. Hagerotts argue in their statement of facts the Morton County Commission did not discuss the following criteria that are listed in the zoning ordinance to be considered by the commission prior to making a determination on a conditional use permit:
The proposed use will not adversely affect the health and safety of the public and the workers and residents, or farming in the area, and will not be detrimental to the use or development of adjacent properties or of the general neighborhood.
The proposed use will comply with and [sic] special conditions necessary for maintaining the general welfare or [sic] the public.
Appellants' Brief at ¶ 11; App. 9.
10. Hagerotts state in their brief, "there was no discussion by the Board of the foregoing criteria in the record and they did not issue a written decision evaluating these criteria. Appellants' Brief at ¶ 11. Hagerotts' argument in this regard is blatantly false and misleading. These issues were discussed in detail at both meetings, which in total lasted more than four hours. See generally July 1, 2008 Transcript (Supp.App. 10-46); July 17, 2008 Transcript (Supp.App. 47-62). These issues were in fact thoroughly discussed and considered. At the three hour July 1, 2008 meeting of the Morton County Commission, an engineer/feedlot design expert retained by Berger, Brian Markegard, testified that based on surveys and an aerial map, all existing residences in the area were more than a mile away from the proposed feedlot site. July 1, 2008 Transcript at pp. 6-10 (Supp.App. 12-13). He also testified at length regarding the design of the proposed feedlot, waste management, and how odors and potential contamination would be controlled and be in compliance with Department of Health guidelines. Id. at pp. 6-18 (Supp.App. 12-15). There was also discussion by the County Auditor Paul Trauger and Berger's attorney that issues such as water quality are matters for the Department of Health experts and the Morton County Commission can defer to that authority to ensure the safety of the feedlot. Id. at pp. 68-69 (Supp.App. 27). In response to questions from one of the county commissioners, the commission was informed the Department of Health had been notified of the conditional use permit and if the commission granted the conditional use permit, the Department of Health would do all the necessary testing. Id. at pp. 69-70 (Supp.App. 27-28). Bill Price testified he operates an 8,000 head feedlot his grandfather built in 1951 along the Missouri River. Id. at p. 88 (Supp.App. 32). He testified his feedlot is closely monitored and inspected by the Department of Health and EPA and indicated if Berger's proposed feedlot did not meet their criteria he would have to shut down the operation. Id. at p. 89 (Supp.App. 32). Hagerotts' own attorney, Tami Norgard, raised and initiated discussions of numerous other issues including odor issues, issues regarding additional expenses to taxpayers for upgraded roads, and water quality issues. Id. at pp. 30-66 (Supp.App. 18-27). These issues were discussed in detail by the commissioners and witnesses throughout the July 1, 2008 meeting and July 17, 2008 meetings. See July 1, 2008 Transcript (Supp.App. 10-46); July 17, 2008 Transcript (Supp.App. 47-62). Hagerotts' attorney told the commissioners at the July 17, 2008 meeting they should consider heath, safety, morals, public convenience, prosperity and public welfare in making its decision. Id. at pp. 33-34 (Supp.App. 55-56). The Morton County Commission ultimately granted the conditional use permit based upon explicit conditions that Berger must obtain a State Health Department Permit, comply with the recommendations of the Morton County Road Department, and comply with EPA requirements and other environmental standards. App. 1; July 17, 2008 Transcript at pp. 55-59 (Supp.App. 61-62). Thus the very criteria the Hagerotts claim should have been but were not considered, were in fact thoroughly analyzed and discussed by the Morton County Commission.
11. The Morton County Commission was also presented with substantial evidence supporting a decision to grant the conditional use permit to Berger. Fred Berger's attorney, Thomas Kelsch, provided documents to the board regarding other existing feedlots, and discussed an NDSU study (Supp.App. 9), suggesting the economic benefits of the feedlot in Morton County would be more than $7 million and possibly as high as $18-20 million. July 1, 2008 Transcript at pp. 20-21 (Supp.App. 15). This economic benefit to Morton County would come from feed sales, veterinary care, repairs, heat, labor, parts purchased by feed companies, etc. Id. Further, throughout the meetings, there was discussion and evidence in favor of permitting Berger to establish a feedlot. For example, in a June 23, 2008 memorandum to the Morton County Commissioner, the North Dakota Agriculture Commissioner, on behalf of the Department of Agriculture, urged the commission to grant the conditional use permit. Supp.App. 7-8. The Agriculture Commissioner stated the feedlot would support North Dakota's agricultural economy and indicated odor issues would be regulated by the North Dakota Department of Health. Id.
12. There was substantial evidence before the Morton County Commission to make a reasoned determination that permitting the proposed Berger feedlot was in the best interest of the County. In light of the evidence in favor of the feedlot, the decision to grant the conditional use permit cannot be determined to be arbitrary, capricious, or unreasonable. All of the concerns regarding health and safety were presented to the commission and the commission addressed those concerns by placing conditions on the issuance of the permit. Certainly, there was testimony and evidence the feedlot was alleged not to be in the best interest of the county. However, all of the evidence was presented to the Morton County Commission, the democratically elected body charged with making such policy decisions, and it weighed the benefits and detriments and made a determination in favor of Berger. This Court should not alter the reasoned policy decisions of the Morton County Commission.
13. Hagerotts note the Morton County Commission did not issue a written decision evaluating the relevant criteria. Appellants' Brief at ¶ 11. However, based on the applicable law, the District Court found, "while it would have been helpful if there were written findings in relation to the Morton County Commission's decision as to the reasons for approving the conditional use permit, there is no legal requirement that the Morton County Commission issue written findings." App. 106 [¶ 6]. Written findings of the Morton County Commission were not required under North Dakota law for approval of a conditional use permit. See N.D.C.C. § 11-33-01 (requiring written findings upon which a zoning amendment or variance is approved or disapproved, but no such requirement with regard to conditional use permits). Further, the findings of the Morton County Commissioners were memorialized in writing by virtue of the fact a court reporter was present for both hearings and a written transcript exists regarding the Morton County Commissioners' decision on the issue. Given there is no legal requirement to issue written findings, and given evidence and arguments were presented at the commission meetings, including the same arguments by Hagerotts' attorney being made in the current appeal, it is patently obvious the Morton County Commission took these issues into consideration in coming to its decision to grant the conditional use permit. C. The Morton County Commissioners Correctly Determined That Hagerotts' Trailer Was Not An "Existing Residence."
14. The facts section of Appellants' Brief falsely indicates the Morton County Commission did not analyze the legal interpretation of the term "existing residence" in the setback ordinance, which is at issue in this appeal. Appellants' Brief at ¶¶ 16-18. In that regard, Hagerotts make statements such as, "the Board did not engage in any meaningful discussion of the legal interpretation of the Animal Feeding Operations ordinance", "the record contains little to no discussion of the legal interpretation of the Animal Feeding Operations ordinance besides a punt to the District Court to interpret the Ordinance", "[t]hus the Board made its decision without any analysis of the feedlot siting criteria, as required by its own Agricultural District Regulations", and "[t]he Board also chose to bypass a discussion of the competing legal interpretations of the ordinance." Id.
15. Contrary to Hagerotts' assertions, there was substantial discussion of this issue in the Morton County Commission meetings. Hagerotts' attorney, Tami Norgard testified at the July 1, 2008 meeting. July 1, 2008 Transcript at pp. 30-66 (Supp.App. 18-27). She presented at length all of the same arguments the Hagerotts have made in this appeal, i.e. that the Hagerotts have a vested interest because their allegedly planned residence was within one mile of the proposed feedlot, that Donald Hagerott got a septic permit, got a grading permit, got a mail route, and a 911 address, and that he moved a trailer onto the property. Id. at pp. 31-33, 51-61 (Supp.App. 18, 23-25). She specifically testified these facts establish an "existing residence". Id. To the contrary, Berger's attorney stated at the July 1, 2008 meeting that after word got out that Berger planned to establish a feedlot, Donald Hagerott got a building permit, but there was no construction, sewage system, or power. Id. at pp. 23-24 (Supp.App. 16). He argued there was therefore no "existing residence". Id.
16. In the hour and fifteen minute July 17, 2008 meeting of the Morton County Commission, another attorney for Berger, William Delmore, argued there was no "existing residence" within one mile of the proposed feedlot because there was nothing at the site other than an unoccupied trailer. July 17, 2008 Transcript at pp. 18-19, 38-40 (Supp.App. 52, 57). Hagerotts' attorney again argued presenting all the same arguments discussed in Appellants' Brief. Id. at p. 21-31 (Supp.App. 52-55). Hagerotts' attorney told the Morton County Commission it was the responsibility of the Morton County Commission to listen to the arguments and interpret its own ordinance. In that regard, she stated:
And it's your job as Morton County commissioners to interpret your ordinance. You drafted it, you interpret it. And you know what, when a court looks at this, the court says, hmm, I have to defer to the county in their interpretation of their ordinance because they wrote it and they're enforcing it, and the courts will generally defer to you unless it's an unreasonable interpretation.
Id. at p. 25 (Supp.App. 53).
17. The Morton County Commission specifically sought the aid of the state's attorney with regard to the meaning of the term "existing residence", who provided a legal opinion there was no "existing residence". July 1, 2008 Transcript at pp. 122-23, 130-32 (Supp.App. 41, 43); July 17, 2008 Transcript at pp. 18-20, 36-38 (Supp.App. 52, 56-57). Hagerotts make much of the fact that the state's attorney allegedly stated at the hearings the issue could be decided either way by a court. This is entirely irrelevant. It is clear the arguments were presented to the commissioners by attorneys on all sides and the County ultimately granted the Berger conditional use permit. By granting the conditional use permit, the Morton County Commission accepted the argument there was no "existing residence" within one mile of the proposed feedlot.
18. Commissioner Zachmeier squarely addressed the issue at the July 17, 2008 meeting, stating, "Ms. Norgard, I read your letter, I read the North Dakota Supreme Court decisions, I went everywhere I possibly could to see if that trailer house fits the definition of an existing structure or any type of occupied residence or structure. I can't see it. I don't see it." Id. at pp. 53-54 (Supp.App. 60-61). III. ARGUMENT
19. The decision of the Morton County Commission to grant the conditional use permit for the Berger's proposed feedlot should be upheld and Hagerotts' appeal dismissed. Hagerotts do not have standing to bring the current appeal. Further, the Court should uphold the Morton County Commission's decision to grant the conditional use permit because the decision was made after careful consideration of the testimony and evidence presented to the Morton County Commission, and its decision was not arbitrary, capricious or unreasonable. The proposed Berger feedlot did not violate the applicable set back requirement, as alleged by Hagerotts, because there was no existing residence within one mile of Berger's proposed feedlot and Hagerotts had no vested right to construct a residence within one mile of the proposed feedlot. Further, the Court should deny Hagerotts' claim alleging their property was taken without just compensation because the issue is not properly before this Court, and Hagerotts are not entitled to compensation under the law in any event. A. Mark Hagerott And Donald Hagerott Do Not Have Standing To Appeal The Decision Of Morton County To Grant Fred Berger's Conditional Use Permit
20. As found by the District Court, neither Mark Hagerott nor Donald Hagerott has standing to appeal the decision of the Morton County Commission. 1. Mark Hagerott Does Not Have Standing To Appeal
21. Mark Hagerott does not have standing to bring this appeal and therefore the appeal must be dismissed. Under North Dakota law, a party must as an initial matter demonstrate standing in order to litigate or appeal a dispute before the court. Chapman v. Chapman, 2004 ND 22, ¶ 5, 673 N.W.2d 920 (citing Triple Quest, Inc. v. Cleveland Gear Co., 2001 ND 101, ¶ 13, 627 N.W.2d 379). With regard to appeals of decisions of county commissions, the North Dakota Century Code states, "[a]ny person, or persons, jointly or severally, aggrieved by a decision of the board of county commissioners under this chapter, may appeal to the district court in the manner provided in section 28-34-01." N.D.C.C. § 11-33-12 (emphasis added). Therefore, in order to demonstrate standing, Mark Hagerott must establish he was "aggrieved" by the decision of the Morton County Commission to grant Berger's conditional use permit.
22. The North Dakota Supreme Court has not interpreted the term "aggrieved" as the term is used in N.D.C.C. § 11-33-12. However, the same requirement of a party being "aggrieved" applies with regard to appeals from a judgment or order to the North Dakota Supreme Court, and thus the meaning of "aggrieved" in that context should be considered as an analogy to the current appeal. See Treiber v. Citizens State Bank, 1999 ND 130, ¶ 5, 598 N.W.2d 96. With regard to an appeal of a judgment or order to the North Dakota Supreme Court, "[a]n aggrieved party is one who has some legal interest that may be enlarged or diminished by the appealed decision." Id. (citations omitted). Further, "[t]he party's interest must be immediately, directly, and adversely affected, and an effect that is contingent or indirect, or that results merely in some possible, remote consequence, is insufficient." Id. (citations omitted). American Jurisprudence Second explains:
To maintain standing to challenge a zoning decision as an aggrieved person, a person must have and maintain a specific, personal, and legal interest in the subject matter of the appeal throughout the course of the appeal and must present proof of the adverse effect the changed status has or could have on the use, enjoyment, and value of his or her property. The zoning board decision must not only affect a matter in which the protestant has a specific interest or property right, but he or she must also be personally and specially affected in a way different from that suffered by the public generally.
83 Am. Jur. 2d Zoning and Planning § 925.
23. In this case, there is no dispute Mark Hagerott does not own the land on which his father Donald Hagerott allegedly plans to construct a home. There is no evidence Mark Hagerott leases or has any other legal interest in the property. Also, Donald Hagerott, not Mark Hagerott, applied for and obtained the building permit to construct a residence. App. 40, 51-52. Further, Donald Hagerott, not Mark Hagerott, applied for the field access road (id. at p. 50), obtained the 911 address (id. at p. 53), and applied for the sewage treatment system permit (id. at pp. 54-56). Also, Mark Hagerott is on active military duty and is not a resident of the State of North Dakota. July 1, 2008 Transcript at pp. 79, 85-86 (Supp.App. 30-32). Mark Hagerott has no property interest or other legally protected interest affected by the Morton County Commission's decision with regard to Berger's proposed feedlot. Therefore, Mark Hagerott has no standing to bring the current appeal and his appeal should be dismissed. 2. Donald Hagerott Does Not Have Standing
24. Likewise, as found by the District Court, Donald Hagerott does not have standing and his appeal should be dismissed. Donald Hagerott does own the property on which the Hagerotts allegedly plan to construct a home. However, as indicated on one of the aerial maps in the record on appeal, App. 33, Donald Hagerott's current residence is located elsewhere but outside the one mile setback requirement. His residence is not within the setback range and thus the basis of this appeal, that there is allegedly an "existing" residence within one mile of the proposed feedlot, does not affect Donald Hagerott. Also, there is no dispute the allegedly planned residence is to be constructed as a residence for Mark Hagerott, not Donald Hagerott. Further, the proposed feedlot does not affect Donald Hagerott's use of his property for agricultural purposes as it is currently being used. Also, all issues that might have affected Donald Hagerott as a neighboring land owner regarding odor, health concerns, etc. were discussed and considered by the Morton County Commission and the commission appropriately set applicable restrictions as conditions on Berger's permit. Donald Hagerott is not aggrieved by the decision of the Morton County Commission to grant a conditional use permit to Berger and thus Donald Hagerott's appeal should also be dismissed for lack of standing. B. Morton County's Decision To Grant Fred Berger's Conditional Use Permit Was Not Arbitrary, Capricious Or Unreasonable
25. In the event the Court determines Donald Hagerott and Mark Hagerott have no standing to appeal the decision of the Morton County Commission at issue, the Court need not address the remainder of the arguments in this brief and dismissal of the appeal would be appropriate. However, should the Court determine either Hagerott has standing to bring this appeal, the decision of the Morton County Commission should none-the-less be upheld as its decision to grant the subject conditional use permit was not arbitrary, capricious or unreasonable.
1. Applicable Standard Of Review
26. Hagerotts' burden on appeal is high. In an appeal from the decision of a local governing body under N.D.C.C. § 28-34-01, the district court's scope of review is "very limited." Klindt v. Pembina County Water Res. Board, 2005 ND 106, ¶ 12, 697 N.W.2d 339 (citing Douville v. Pembina County Water Res. Dist., 2000 ND 124, ¶ 5, 612 N.W.2d 270) (quoting Graber v. Logan County Water Res. Bd., 1999 ND 168, ¶ 7, 598 N.W.2d 846)).
[U]nless the Board acted arbitrarily, capriciously or unreasonably, or there is not substantial evidence to support the decision, it must be affirmed. A decision is not arbitrary, capricious or unreasonable if the exercise of discretion is the product of a rational mental process by which the facts and the law relied upon are considered together for the purpose of achieving a reasoned and reasonable interpretation.
Id.
27. "[T]the courts must not substitute their judgment for that of the local governing body who initially made the decision." Pic v. City of Grafton, 1998 ND 202, ¶ 11, 586 N.W.2d 159. "[T]he decision to issue or deny a special use permit, pursuant to county zoning ordinances, is a legislative function subject only to appellate review to determine whether or not the county's legislative body acted arbitrarily, capriciously, or unreasonably in reaching its decision." Pulkrabek v. Morton County, 389 N.W.2d 609, 613 (N.D. 1986). "[O]n appeal from a decision of a county commission, the principle of separation of powers prevents the parties from re-litigating the correctness and propriety of a commission's decision." Id. It is the burden of the appellant to "show that the Board acted arbitrarily, capriciously, or unreasonably." Id. All of the case law indicates this Court should be deferential to the local governing body decision by the Morton County Commission granting Fred Berger's conditional use permit request.
28. The Hagerott's entire appeal is based on one single fact: the proposed feedlot is located within one mile of the location the Hagerotts allegedly plan to construct a residence. At the Morton County Commission meetings, the Hagerotts' attorney, Tami Norgard, essentially threw in the kitchen sink, arguing many possible reasons to deny Berger's conditional use permit. She raised numerous issues, arguing the conditional use permit should be denied based on odor issues for those living just outside the one mile radius, roads would have to be upgraded at the expense of taxpayers, water quality issues including that the proposed feedlot is located next to a coulee that drains into Crown Butte Lake, arguing there may not be enough information regarding design of the feedlot, and arguing there may be an inadequate water supply to the feedlot. July 1, 2008 Transcript at pp. 30-66; July 17, 2008 meeting at pp. 33-34 (Supp.App.18-27, 55-56). Now, in the current appeal, the Hagerotts apparently fault the Morton County Commission for not focusing exclusively on the one issue the Hagerotts appeal. The Morton County Commission fully discussed and analyzed the issues raised at the meetings and this Court should not overturn the Morton County Commission decision because it allegedly failed to focus exclusively on just one of the numerous issues raised by the Hagerotts at the meetings. See July 1, 2008 Transcript (Supp.App. 10-46); July 17, 2008 Transcript (Supp.App. 47-62). 2. Neither Donald Hagerott Nor Mark Hagerott Had Or Have A Vested Right To Construct A Home
29. Hagerotts' argument they had a vested right to construct a residence is based solely upon the fact Donald Hagerott obtained a building permit on May 1, 2008, prior to the issuance of Fred Berger's conditional use permit. Hagerotts focus most of their brief on the fact that Donald Hagerott obtained a building permit prior to the approval of Berger's conditional use permit. However, the issuance of the building permit did not create a vested property right. Hagerotts' reliance on the building permit as establishing a vested right is misplaced and highly misleading. In order to analyze this issue, it is important to understand the purpose of the building permit and how it was obtained. The Appellants' Brief fails to explain the building permit was issued as a matter of course by a county official as a ministerial act and the sole purpose of such a building permit is to ensure compliance with the building code, not to vest a property right to construct a building.
30. Appellants' Brief contains several blatantly false statements intended to convince the Court the Morton County Commission made inconsistent determinations with regard to Hagerott's application for a building permit, and Berger's application for a conditional use permit. Hagerotts' arguments suggest the Morton County Commission considered Donald Hagerott's request for a building permit, found that granting the permit was appropriate, issued a building permit, and then inconsistently issued a conditional use permit to Berger within the one mile setback limit. For example, Hagerotts falsely state, "Fred Berger applied for a CUP on May 20, 2008, nineteen days after the Board had already issued a residential building permit to Donald Hagerott", "[a]warding a second, competing permit two and a half months after the Hagerott permit constitutes arbitrary and unreasonable conduct by the Board", and "[w]hile the Board clearly wants to allow both requested permits, allowing them both to proceed, as the Board has done, violates the letter of its' own ordinance." Appellants' Brief at ¶¶ 29-31. Further, Hagerotts state, "Hagerott has a valid permit to construct a residence, which establishes his compliance with all applicable regulations and ordinances, and gives him the right to use his property for that purpose." Id. at ¶ 34. Hagerotts' statements are outright false and are an attempt to divert attention from a major determination of the Morton County Commission at the District Court, which is otherwise ignored in Appellants' Brief: namely that the issuance of Donald Hagerott's building permit was merely a ministerial act by a county official, not a determination of the Morton County Commission. The Morton County Commission never reviewed or granted any building or other permit to Donald Hagerott. Donald Hagerott was given a building permit by a county official as a ministerial act related solely to electrical and other inspections, not in any way related to property rights.
31. Hagerotts would have the Court believe the building permit Donald Hagerott obtained is of such significance that it bestows upon him a vested property right. The building permit is of far less significance. Donald Hagerott's property, which consists of more than 150 acres, constituted a "farm" and was therefore zoned agricultural. Morton County Zoning Ordinance, Article 5, Section 2 (App. 8-9). Under Article 5, section 2, subdivision 2, Donald Hagerott was permitted to build a single family dwelling on his agriculturally zoned property without obtaining a conditional use permit or any other approval from the Morton County Commission. Id. It is undisputed Donald Hagerott did not seek and was not required to seek approval from the Morton County Commission in order to construct a new single family residence. Donald Hagerott was merely required to obtain a building permit from the county building official, pursuant to Morton County Ordinance Article 20, entitled Building An [sic] Occupancy Permits (Supp.App. 70-73). Article 20, subdivision 2, entitled Intent, states:
The purpose of this article is to establish minimum requirements for safeguarding the public health, safety, and general welfare through structural strength, means of egress, sanitation, adequate light and ventilation, and safety to life and property form [sic] fire and other hazards to the built environment (wording form [sic] State Building Code 101.3)
Id. (emphasis in original).
Article 20, subdivision 5, entitled Permits, states in relevant part:
Any owner or authorized agent who intends to construct, enlarge, alter, repair, move, demolished [sic], or change the occupancy of a building or structure, or to erect, install, enlarge, alter, repair, remove, convert or replace any system, the installation of which is regulated by the Building Code, shall first make application to the building official and obtain the required permit (State Building Code, IBC 105.1)
32. Obtaining the permit is merely a matter of paying the applicable fee. Article 20, subdivision 6. In fact, Donald Hagerott's building permit, number 08-26, was issued the same day as the application was submitted. See date and permit number, App. 40, 51-52.
33. After paying the fee and obtaining the permit, the builder is then subject to a series of at least six inspections, for footings, foundation, structural/framing, plumbing, electrical, and a final inspection. Article 20, subdivision 7 (Supp.App. 72); App. 13, 15. Setbacks are not determined until the first inspection after the footing trench, rails and rebar are in place. Id. It is undisputed that no inspections have taken place since the issuance of the building permit because in fact no construction has begun. Further, a certificate of occupancy is granted after the final inspection (App. 13), but obviously has not been granted because no construction or inspections have taken place. Hagerott's building permit specifically indicates it is null and void if construction is not started within 180 days of the issuance of the permit, which it is undisputed no work was conducted other than moving a temporary trailer onto the site. App. 40.
34. North Dakota law is clear the mere issuance of a building permit or other similar county action, in the absence of substantial detrimental reliance, does not create a vested right to construct a building. See Fargo Beverage Co. v. City of Fargo, 459 N.W.2d 770 (N.D. 1990); City of Fargo, Cass County v. Harwood Tp., 256 N.W.2d 694 (N.D. 1977). Hagerotts are attempting to persuade the Court they have an absolute vested property right to begin construction on a home based on the issuance of a standard building permit, even though they have not relied on the permit to their detriment. This is clearly contrary to North Dakota case law. Id. Hagerotts attempt to distinguish the applicable North Dakota case law by arguing these cases involve changing zoning ordinances rather than granting a permit to someone who wishes to establish a feedlot. Appellants' Brief at ¶¶ 61-65. This is a distinction without a difference. If there is no vested right such that zoning ordinances can be freely changed, there is no vested right prohibiting the granting of a conditional use permit to a neighbor. Hagerotts have not explained how factual distinctions in the case law change the basic rule of law that a mere expectancy of constructing a building in the future does not create any vested rights.
35. In that regard, in City of Fargo, Cass County v. Harwood Tp., 256 N.W.2d 694 (N.D. 1977), the North Dakota Supreme Court stated:
The general rule is that a landowner who merely hopes or plans to use his property in a certain way at some time in the future has no protection against zoning changes prohibiting such facility. On the other hand, a landowner who has made substantial expenditures in reliance upon existing zoning or otherwise committed himself to his substantial disadvantage before the zoning change may be protected. Jurisdictions differ as to whether actual excavation or construction is required to show substantial reliance or whether planning expense and incurrence of contractual obligations and accumulation of other incidental expenses may add up to substantial reliance. Purchase of land, alone, is seldom a proper matter for consideration unless it was done in reliance upon a building permit already issued for a certain purpose. See, 8 McQuillan, Municipal Corporations (3d ed. rev.) s 25.66; 49 A.L.R.3d 13.
Id. at 700.
36. Similarly, in Fargo Beverage Co. v. City of Fargo, 459 N.W.2d 770 (N.D. 1990), the North Dakota Supreme Court held that a liquor license does not confer a vested right and is subject to changing regulations or even to legislative cancellation unless "a landowner has made substantial expenditures in reliance on a zoning ordinance." Id. at 775 (quotations and citations omitted).
37. Persuasive authority also establishes the issuance of a permit does not establish a vested property right to begin construction in the absence of significant detrimental reliance. In that regard, American Jurisprudence Second states:
Issuance of a permit or license is not sufficient by itself to establish a nonconforming use or vested right to use purportedly authorized by such permit or license. However, courts have often ruled that owners have a vested right to complete a building that offends a zoning regulation when, after procurement of a valid permit, the owner has made substantial expenditures or substantially changed his or her position.
83 Am. Jur. 2d Zoning and Planning § 576. American Jurisprudence Second also states, "[a] permit holder who has relied on the permit to complete substantial construction has a vested right to complete the project in accordance with the original plans, despite a later ordinance that would prohibit such construction." 83 Am. Jur. 2d Zoning and Planning § 577. Thus, according to persuasive authority, the issuance of a building permit alone does not create vested property rights, as argued by the Hagerotts. An owner must have incurred substantial expenditures or substantially completed construction to create a vested right, which the Hagerotts have not done. The Hagerotts have not substantially completed construction. In fact, the Hagerotts have not even started construction of a residence.
38. Further, the case law cited by the Hagerotts is not analogous to the current case. In the current case, unlike the cases cited by the Hagerotts, the alleged vested right is claimed to arise solely from a standard building permit relating to compliance with the building code. If Hagerotts' argument is accepted by the Court, anyone could create a vested right and block actions by the zoning board simply by applying for and paying the required fee for a building permit. As specifically discussed at the Morton County Commission meetings, it would be against public policy to permit individuals to block development simply by applying for a building permit. July 17, 2008 Transcript at p. 55 (Supp.App. 61). The Court should not override the policy decision of the Morton County Commission that development of feedlots should not be hindered at the whim of neighbors who apply for building permits for the sole purpose of interfering with zoning decisions. Also, the cases Hagerotts cite are not North Dakota cases and those cases do not involve "existing residence" ordinances. 3. There Was No "Existing Residence" Within One Mile Of Fred Berger's Proposed Feedlot
39. The only factual basis of Hagerotts' appeal is the proposed feedlot is located within 1 mile of the location on which the Hagerotts allegedly plan to construct a residence. Hagerotts do not argue it is otherwise arbitrary, capricious or unreasonable to grant a conditional use permit for the establishment of a feedlot in an agriculturally zoned area. The only applicable set back requirement is found in the Morton County land-use ordinance regarding animal feeding operations, section 2.2. App. 61-62. The ordinance requires a setback of 1 mile for feedlots of 5,001 animals or more, such as the proposed Berger feedlot, from any "existing residence". Id. In that regard, the ordinance states, "[t]he operator of a new animal feeding operation shall locate the site of that operation from existing residence, businesses, churches, schools, public parks and areas of property that are zoned residential so as to exceed the corresponding listed setback from these places." Id. at p. 62 (italics in original, bold added). The term "existing residence" is not defined by Morton County land-use ordinances.
40. Hagerotts argue the residence they allegedly plan to construct is an "existing residence" because Donald Hagerott allegedly obtained a building permit, applied for a septic permit, applied to improve access to the property, established an address for postal service and emergency services, and moved a trailer onto the property allegedly to serve as a residence during construction. The Hagerotts' argument wholly ignores the plain and ordinary meaning of the term "existing residence."
41. The term "existing" is defined in the zoning ordinance, Animal Feeding Operation, Special Use in the "A" Agricultural Zoning District, Section 1, Subd. 1.1. App. 58. According to the section entitled Definitions, "'[e]xisting' means in place and operating on the date this ordinance is effective." Id. Hagerotts argue this is not the appropriate definition because as used in the setback provision, the term is not italicized to show that it is given the meaning in the Definitions section. Appellants' Brief at ¶ 43. This argument is non-sequitur. The definition of "existing" in the zoning ordinance is consistent with the ordinary meaning of the word. As a matter of common sense, a residence, which is a tangible object, does not "exist" unless it can be seen and touched. In this case, absolutely no construction has taken place. No residence exists within a mile of the proposed feedlot. As shown in the photographs, App. 75-82, the only thing present on Donald Hagerott's property is a temporary trailer. No construction whatsoever has been performed to construct the permanent residence. To suggest a residence that is not there constitutes an "existing" residence is absurd. The plan to construct a residence does not mean the residence "exists". In the words of Berger's attorney, William Delmore, at the July 17, 2008 meeting, "It doesn't say one mile from a building permit. It says one mile from an existing residence." July 17, 2008 Transcript at p. 18 (Supp.App. 52). Certainly, there is no ordinary definition of the phrase "existing residence" that would include a parcel of land for which permits have been acquired to construct a residence but no residence has been constructed, nor has any construction been initiated.
42. Although not defined by the Morton County ordinances, the term "residence" is commonly understood to mean a "[p]lace where one actually lives or has his home; a person's dwelling place or place of habitation; an abode; house where one's home is; a dwelling house." Black's Law Dictionary 1308-09 (Sixth Ed. 1991). See also Webster's New World Dictionary 1209 (Second College Ed. 1979)(defining "residence," in relevant part, as "the place in which a person or thing resides; dwelling place; abode; esp. a house" and defining term "reside," in relevant part, as meaning "to dwell for a long time; have one's residence; live"). There is no dispute the trailer placed on the site upon which the Hagerotts' allegedly planned to build a home was not occupied either before, after, or when the feedlot permit was granted to Berger. It is also not disputed there was no other structure located on the subject site which could have been occupied as a residence when the proposed Berger feedlot permit was issued. Under the undisputed facts in this case, the Morton County Commission's grant of a permit for Berger's proposed feedlot was proper and in accordance with applicable land-use restrictions.
43. In addition to the commonly accepted meaning of the term "existing residence", it is also clear the state legislature interprets the term "residence" as requiring occupancy. The power of the Morton County Commission to create the one mile setback from feedlots of 5,001 or more head of cattle, such as the Berger feedlot, was granted by an enabling statute, N.D.C.C. § 11-33-02.1(6), which states, "[a] board of county commissioners may adopt regulations that establish different standards for the location of concentrated feeding operations based on the size of the operation and the species and type being fed." Id. (emphasis added). The term "location" is defined in Chapter 11-33 as follows:
"Location" means the setback distance between a structure, fence, or other boundary enclosing a concentrated feeding operation, including its animal waste collection system, and the nearest occupied residence, the nearest buildings used for nonfarm or nonranch purposes, or the nearest land zoned for residential, recreational, or commercial purposes. The term does not include the setback distance for the application of manure or for the application of other recycled agricultural material under a nutrient management plan approved by the department of health.
N.D.C.C. 11-33-02.1(1)(d)(emphasis added). In other words, the enabling statute which granted Morton County the power to restrict land-use relative to concentrated feeding operations contemplated such restrictions for "occupied" residences. While the term "occupied" is not defined in the enabling statute, Berger's attorney, William Delmore, stated at the July 17, 2008 meeting that he was personally involved in the drafting of the model feedlot ordinance adopted in Morton County and he stated, "when we originally did the model ordinance, the key was whether people were living there, occupied building." July 17, 2008 Transcript at pp. 18-21 (Supp.App. 52). This legislative intent is consistent with the enabling statute discussed above. It is clear there has never been an "occupied" residence on the Hagerott property within one mile of the proposed Berger feedlot. It is undisputed that no one has ever lived in the trailer on Donald Hagerott's land.
44. In Burlington Northern R.R. v. State By and Through Hanson, 500 N.W.2d 615 (N.D. 1993), the North Dakota Supreme Court interpreted a provision in the tax code, N.D.C.C. § 57-39.2-04(22), that included the phrase, "occupied by the same person or persons for residential housing". The court explained:
"Occupy" as used in the statute means actual use and possession, or to dwell within. See The Random House Dictionary of the English Language (2nd ed. 1987) p. 1340. The term "residential housing" implies the accommodations are where "people reside or dwell, or in which they make their homes, as distinguished from [use] for a commercial or business purpose." Knudtson v. Trainor, 216 Neb. 653, 345 N.W.2d 4, 6 (1984). When construed together, "occupy" and "residential housing" imply inhabitation or possession for a nonbusiness, nontransient purpose.
617-18.
45. Clearly, there is no definition possible for the term "existing residence" that would include an alleged future construction site where no one has ever lived and the ground has never even been broken to begin construction. There has never been a house at the site and it is undisputed that no one has ever lived in the "construction trailer". Thus, Hagerotts' claim they intend to construct a residence within a mile of the proposed feedlot and would someday occupy that residence is insufficient to constitute an "existing residence" so as to preclude the establishment of a feedlot within one mile.
46. Furthermore, as discussed above, the possible interpretations of the term "existing residence" in the ordinance were thoroughly argued and considered by the Morton County Commission, and it ultimately concluded there was no "existing residence" within one mile of the proposed feedlot. The Court should be deferential to the decision of the Morton County Commission on this issue. The Morton County Commissioners determined Hagerotts' actions did not establish an "existing residence" as the term is used in the ordinance.
The North Dakota Supreme Court has stated:
interpretations of zoning ordinances by a [county commission] are quasi-judicial acts, and a reviewing court should give deference to the judgment and interpretation of the [commission] rather than substitute its judgment for that of the enacting body. Although the Board's interpretation is not necessarily controlling, we believe that it is entitled to deference.
Pulkrabek v. Morton County, 389 N.W.2d 609, 615 (N.D. 1986)(citing Munch v. City of Mott, 311 N.W.2d 17 (N.D. 1981)). Regarding interpretations of zoning ordinances, the North Dakota Supreme Court further explained:
We interpret ordinances as we would any statute. GO Committee v. City of Minot, 2005 ND 136, ¶ 9, 701 N.W.2d 865 (citations omitted). Ordinance interpretation, like statutory interpretation, is a question of law subject to full review upon appeal. Id. (citation omitted). "Words used in any statute are to be understood in their ordinary sense, unless a contrary intention plainly appears, but any words explained in this code are to be understood as thus explained." N.D.C.C. § 1-02-02. "When the wording of a statute is clear and free of all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit." N.D.C.C. § 1-02-05. In construing a statute, we ascertain the enacting body's intent by giving the statutory language its plain, ordinary, and commonly understood meaning. GO Committee, at ¶ 9. "'We construe statutes as a whole and harmonize them to give meaning to related provisions.'" Id. (quoting Larson v. Larson, 2005 ND 67, ¶ 8, 694 N.W.2d 13).
City of Minot v. Boger, 2008 ND 7, ¶ 5, 744 N.W.2d 277 (quoting Hentz v. Elma Twp. Bd. of Supervisors, 2007 ND 19, ¶ 9, 727 N.W.2d 276).
47. The building permit was granted to Donald Hagerott as a matter of course for the purpose of ensuring later building safety and inspections during construction. Hagerotts do not dispute that no construction has begun pursuant to the permit. Further, while Donald Hagerott applied for a septic permit, there is no evidence any work in that regard has been done. With regard to the application to improve access to the property, Hagerotts are referring to an Approach Permit & GIS Address Form, submitted by Donald Hagerott. App. 50. Importantly, the form indicates the reason for a new road approach is for "Field Access". Id. Donald Hagerott checked the box for "Field Access" rather than "New Home Construction". Id. The new access was merely to improve the agricultural property, not in preparation for the construction of a residence and Donald Hagerott's approach permit admits that fact. Hagerotts argue that Donald Hagerott was instructed by a county official to check the "Field Access" box but argue it was really intended to be a road used for the new residence. Appellants' Brief at ¶¶ 53-57. However, this issue was presented to the Morton County Commission and was specifically addressed. In that regard, Commissioner Zachmeier stated that Nick Kraft, the county employee who signed the approach permit, was not present to testify and "for our purpose here, when it says field access for that road leading to that trailer house, I have no choice but to say that that trailer house is not an existing residence or an occupied structure under our ordinances." Id. at pp. 53-55 (Supp.App. 60-61). This determination is not arbitrary, capricious, or unreasonable. The issue is irrelevant in any event. No access whatsoever was built. With regard to postal service and emergency services, there was no evidence presented to the Morton County Commission that mail was ever delivered to the trailer and no evidence that anyone ever resided there to need emergency services. With regard to the trailer, as discussed above, it is undisputed the trailer is unoccupied.
48. The Hagerotts make the policy argument the Morton County Commission's interpretation of the term "existing residence" would lead to a race to finish construction. Appellants' Brief at ¶ 39. This is a policy argument to make to the legislative body, not this Court. Further, new developments should not have to wait until a neighbor who professes to wish to develop a residence actually does so. The law favors those who act, not those who plan to act. As the democratically elected body, the Morton County Commission established the setback requirement based on "existing residences", not allegedly planned residences. Any policy arguments to the contrary can be made within the democratic process of creating ordinances. Further, the race to the finish policy concern is present any time a setback is in place and the Hagerotts do not contend setbacks are per se impermissible due to a race to the finish policy concern.
49. Hagerotts misconstrue the state's attorney's analysis of "existing residence", but in any event all that matters is what the commission concluded. Appellants' Brief at ¶ 44-47.
50. Hagerotts discuss statutes regarding "legal residences". Id. at ¶ 50-52. The commission did not determine whether there was a "legal residence". The commission determined there was no residence, legal or otherwise.
51. Given the setback requirement is the only basis of this appeal, Hagerotts' appeal must fail if there is no "existing residence" within one mile of the proposed Berger feedlot. If the Court finds the location the Hagerotts allegedly plan to construct a home is not an "existing residence," which it should, the Court must uphold the decision of the Morton County Commission to grant the conditional use permit. C. The Issue Of Taking Without Just Compensation Is Not Properly Before This Court And There Was No Taking In Any Event
52. The Hagerotts argue the issuance of Berger's conditional use permit constituted inverse condemnation, resulting in the taking of Hagerotts' property without just compensation. Appellants' Brief at ¶¶ 72-79. However, the current appeal is an appeal of a decision of a local governing body. It is not an inverse condemnation action seeking damages. According to their Notice Of Appeal And Specifications Of Error (Supp.App. 1-6), Hagerotts brought the current appeal pursuant to N.D.C.C. § 28-34-01, which provides the procedure for appealing decisions of local governing bodies. There is no authority pursuant to North Dakota Century Code Chapter 28-34 or any other authority allowing damages for an alleged taking to be sought in the context of an appeal of a decision of a local governing body. In fact, the North Dakota Supreme Court recently addressed this exact issue in Gowan v. Ward County Commission, 2009 ND 72, 764 N.W.2d 425, stating:
Gowan also claims the Commission's action has resulted in an unconstitutional taking of his property without just compensation. This is not an inverse condemnation action, but is an appeal from a decision of a local governing body under N.D.C.C. § 28-34-01. As in City of Fargo v. Malme, 2008 ND 172, ¶ 6, 756 N.W.2d 197, in which the appellant could not "turn an administrative appeal into a federal civil rights action," Gowan cannot turn this appeal into an inverse condemnation action. We therefore do not address this issue.
Id. at ¶ 11.
53. Even if the issue of an alleged taking was properly before this Court, which it is not, the decision to grant Berger a conditional use permit does not constitute a taking of property in any event. The Fifth Amendment to the United States Constitution states, "nor shall private property be taken for public use, without just compensation." Id. The North Dakota State Constitution states, "[p]rivate property shall not be taken or damaged for public use without just compensation having been first made." Id. at Article I, Section 16. Under these provisions, to maintain their claim, the Hagerotts' must have owned "property" that was taken. However, as discussed above, the Hagerotts did not have any vested property right to construct a residence and thus there was no taking of their "property". The Hagerotts merely planned to construct a residence. Their proclaimed desire to construct a residence did not create a vested property right and they failed to actually construct anything. Hagerotts' taking argument relies completely on the assertion that Donald Hagerott has the absolute right to proceed with his building plans specified in his permit application. However, as discussed more thoroughly above, the granting of the building permit by the county official as a matter of course relating to safety inspections did not bestow upon the Hagerotts a vested right subject to compensation for a taking. Hagerotts' taking claim must fail because they had no "property" that was taken. Further, Donald Hagerott, not Mark Hagerott, owns the property that is within one mile of the location of the proposed feedlot. Thus, Mark Hagerott clearly does not own any property that was taken by the Morton County Commission.
54. There are three categories in which courts may determine there has been a taking of property by the government. First, there is generally a taking when the government permanently physically invades the property, which is not the case in the present appeal. Wild Rice River Estates v. City of Fargo, 2005 ND 193, ¶ 13, 705 N.W.2d 850 (discussing Lingle v. Chevron U.S.A. Inc., 544 U.S. 528 (2005)). Donald Hagerott's property has not been physically invaded.
55. "A second categorical rule applies to regulations that completely deprive an owner of 'all economically beneficial us[e]' of her property." Id. (quoting Lingle, 544 U.S. 528 at 538)(emphasis in original)). In this case, there has not been a deprivation of all economically beneficial use of the Hagerotts' property. It is undisputed that much of Donald Hagerott's 299 acre parcel falls outside the one mile radius of Berger's proposed feedlot. There is no restriction on Hagerotts' ability to construct a residence on Donald Hagerott's property outside the one mile radius of the proposed feedlot. Further, Donald Hagerott's property is currently zoned agricultural and there are no restrictions on his ability to use his property for agricultural purposes regardless of the distance to the feedlot. Thus, he has not been deprived of all economically beneficial use, as required to sustain a taking claim.
56. There is a third category of taking, which was discussed in Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 110 (1978). Wild Rice River Estates, 2005 ND 193 at ¶ 13 (discussing Penn Cent. Transp. Co., 438 U.S. 104).
The primary Penn Central factors are "'[t]he economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations,'" and the "'character of the governmental action'--for instance whether it amounts to a physical invasion or instead merely affects property interests through 'some public program adjusting the benefits and burdens of economic life to promote the common good.'" Lingle, 125 S. Ct. at 2081-82 (quoting Penn Central, 438 U.S. at 124). The "Penn Central inquiry turns in large part, albeit not exclusively, upon the magnitude of a regulation's economic impact and the degree to which it interferes with legitimate property interests." Lingle, 125 S. Ct. at 2082.
Id.
57. In City of Minot v. Boger, 2008 ND 7, 744 N.W.2d 277, the Court noted that a "plaintiff who asserts denial of economically viable use of land must show that property was either unsuitable for use as zoned or unmarketable as zoned". Id. at ¶ 17 (citing Dorman v. Township of Clinton, 714 N.W.2d 350, 352-58 (Mich. Ct. App. 2006)). The Court also noted there is no unconstitutional taking by inverse condemnation where a property owner is allowed a beneficial use, even if he is deprived of best use of the property. Id. (citing MC Props., Inc. v. City of Chattanooga, 994 S.W.2d 132, 136 (Tenn. Ct. App. 1999)). In the current case, Donald Hagerott's property is zoned agricultural and he has every right to use and develop it for agricultural purposes, regardless of the feedlot. While he allegedly desires to construct a residence on his property within one mile of the proposed Berger feedlot and would not be permitted to do so if a feedlot is present, his property can still be used to obtain the benefits of agricultural use. Further, the Hagerotts can construct the home on the same parcel of land, but not within the one mile radius of the feedlot. IV. CONCLUSION
58. The Morton County Board of Commissioners respectfully requests the district court's judgment be affirmed in its entirety.
| Dated this 24th day of September, 2009. SMITH BAKKE PORSBORG SCHWEIGERT | |
| By __/s/ Randall J. Bakke ____ | |
| Randall J. Bakke #03898 | |
| David R. Phillips # 06116 | |
| 116 North 2nd Street | |
| P.O. Box 460 | |
| Bismarck, ND 58502-0460 | |
| (701) 258-0630 | |
| Attorneys for Defendant-Appellee | |
| Morton County Board of Commissioners | |