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. | ||
REPLY BRIEF OF APPELLANTS
DONALD HAGEROTT & MARK HAGEROTT
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
| Tami L. Norgard (#05374) | ||||||
| VOGEL LAW FIRM | ||||||
| 218 NP Avenue | ||||||
| P.O. Box 1389 | ||||||
| Fargo, ND 58107-1389 | ||||||
| (701) 237-6983 | ||||||
| Attorneys for Plaintiffs | ||||||
| Donald Hagerott & Mark Hagerott | ||||||
| TABLE OF CONTENTS | ||
| Paragraph No. | ||
| TABLE OF CONTENTS | ||
| TABLE OF AUTHORITIES | ||
| ARGUMENT | 1 | |
| I. | Morton County's Interpretation of Its Ordinance Has Produced an | |
| Absurd Result | 3 | |
| II. | The County Failed to Make the Requisite Findings Prior to Granting | |
| Berger's Conditional Use Permit Application | 9 | |
| III. | The 'Vested Rights' Caselaw Cited by the Appellee is Inapplicable | 10 |
| IV. | The Trailer Home is a Residence | 13 |
| V. | The County's Speculation About Motives of Hagerotts is Misplaced | 16 |
| VI. | Hagerotts Have Standing | 17 |
| VII. | Conclusion | 20 |
| CERTIFICATE OF COMPLIANCE | 21 | |
| CERTIFICATE OF SERVICE | 22 | |
| TABLE OF AUTHORITIES | |
| Paragraph No. | |
| CASES | |
| City of Fargo v. Ness, 551 N.W.2d 790, 792 (N.D. 1996) | 3, 4 |
| GO Committee v. City of Minot, 2005 ND 136, ¶ 9, 701 N.W.2d 865 | 3 |
| McDowell v. Gillie, 2001 ND 91, ¶ 11, 626 N.W.2d 666 | 4 |
| Pic v. City of Grafton, 460 N.W.2d 706, 710 (N.D. 1990) | 3 |
| Summers v. Earth Island Institute, 129 S.Ct. 1142, 1149 (2009) | 19 |
| OTHER AUTHORITIES | |
| 83 Am. Jur.2d Zoning and Planning §925 | 18 |
| Morton County Zoning, Article | 14 |
ARGUMENT
1. The County minimizes the Hagerott building permit, deeming it a ministerial act, rather than something officially decided by the County Commissioners. Whether the building permit was issued by the Zoning Administrator or the Commissioners makes no practical difference, as the building permit was a County issued permit and the County Commissioners were on-notice of the permit when they issued an inconsistent Conditional Use Permit (CUP) within the one mile feedlot setback.
2. Hagerott may use his property for residential purposes as a matter of right, yet Morton County zoning regulations require a building permit before construction of any residence. Hagerott met all the requirements for and was granted a building permit. His right to establish a residence on his property is beyond question. The validity of Hagerott's building permit is beyond question. Hagerott further is entitled to follow through with his plans as described in the permit application. The County's approval of the Berger CUP for a feedlot within the one-mile feedlot setback from Hagerotts' residence is inconsistent with the County Ordinances and is therefore unreasonable.
I. Morton County's Interpretation of Its Ordinance Has Produced an Absurd Result.
3. The County argues Hagerott's burden on appeal "is high." (Appellee Br. ¶24.) It is true that judicial review of the decision of a County is limited to determining if the decision being reviewed is arbitrary, capricious, or unreasonable. See, e.g., Pic v. City of Grafton, 460 N.W.2d 706, 710 (N.D. 1990). However, "[o]rdinance interpretation, like statutory interpretation, is a question of law subject to full review upon appeal." GO Committee v. City of Minot, 2005 ND 136, ¶ 9, 701 N.W.2d 865. On appeal, the Court must review the interpretation of an ordinance. If a governing body fails to correctly interpret and apply controlling law, it constitutes arbitrary, capricious, and unreasonable conduct. City of Fargo v. Ness, 551 N.W.2d 790, 792 (N.D. 1996). Thus, the issue before the Court is one of legal interpretation. This is not a case where this Court is being asked to defer to factual findings of the County. In fact, in this case, there was no factual finding by the County, either orally or in writing.
4. Zoning ordinance interpretations are subject to the ordinary principles of statutory construction. City of Fargo, 551 N.W.2d at 792 (citations omitted). It must be presumed the enacting body did not intend an absurd or ludicrous result or unjust consequences. See McDowell v. Gillie, 2001 ND 91 ¶ 11, 626 N.W.2d 666 (citations omitted). Rather, ordinances must be construed in a practical manner. Id.
5. The consequence of the County's interpretation of its ordinance is that the County has formally permitted two inconsistent uses that violate County ordinances. Hagerott has a residence on his property, as he moved a trailer onto the property and engaged in other improvements on the property in reliance on the building permit. Berger was subsequently issued a CUP authorizing a feedlot within a quarter mile of Hagerott. Morton County zoning regulations prohibit location of a feedlot within a mile of a residence, and vice versa. If both complete their authorized uses (assuming arguendo the Hagerott trailer home is not already a residence), a feedlot will be located within one mile of a residence in violation of County zoning. The County created a situation which overtly violates its land use regulations, which is unreasonable.
6. The County's interpretation renders building permits a nullity since it makes building permits valueless and affords no protectable interest. Without providing a protectable interest to the holder, a permit serves no purpose.
7. According to the County's interpretation, during construction of a home, a property owner must simply cross its fingers that a neighboring landowner does not propose to use his property in an inconsistent manner and initiate a race to the finish. The result of the County's interpretation is that a building permit serves no planning and development purpose, and the County's "authorization" to proceed with a planned use is both unnecessary and meaningless.
8. Finally, the County's interpretation of its ordinance results in a situation in which two parties have permitted uses, and have been given a certain period of time within which to complete their plans, but neither has a protectable interest and neither is "existing" until such time as all construction is complete. The County has decided development in the County will be a race, and whichever party wins the race to build will win a protectable interest. Until that time, however, the County will not respect already permitted uses in making development decisions. The outcome of the "race" system is unplanned development and waste and inevitable nuisance conditions from incompatible uses.
II. The County Failed to Make the Requisite Findings Prior to Granting Berger's Conditional Use Permit Application.
9. The Ordinance requires that before they issue a CUP, the Commissioners must make certain findings that the proposed use will not adversely affect the health and safety of the public, residents or farming in the area and will not be detrimental to the use or development of the adjacent properties or the general neighborhood. The County is also required to make a finding that the proposed use will maintain the general welfare of the public. In response to this argument, the County highlights snippets of witness testimony and arguments of counsel during over four hours of testimony including comments about odors, contamination, water quality, etc. (Appellee's Br. at ¶8.) Yet the mere fact that the Commissioners heard attorney or witness testimony on issues relating to the impact on health and safety or the detrimental impacts on neighbors that is not the same as the Commission actually making a factual finding on each point as required by the ordinance before issuing a CUP. While the County retroactively points to witness testimony, that testimony is not a substitute for the County affirmatively making findings on criteria that is required to be decided before issuing a CUP. While North Dakota law may not require written findings for a CUP decision, the County is required to make "findings," at least orally.
III. The 'Vested Rights' Caselaw Cited by the Appellee is Inapplicable.
10. The "vested rights" discussion by Appellee is inapplicable since there is no change of zoning pursuant to County police powers.(1) Hagerott's use of land for a residence is permissible in the Agricultural District. This is not the situation where the County granted Hagerott a building permit, but then amended its zoning to disallow residential uses in the Agriculture District after Hagerott had taken substantial steps in detrimental reliance on the building permit. To the contrary, Hagerott's residence complies with Morton County zoning.
11. Instead, the County has issued a CUP for a use that is inconsistent with a prior permitted use. The latter permit was issued in violation of County zoning. It is the County's decision to issue that latter permit and not subsequent zoning amendments or Hagerott's right to his continue with his permitted use which is being questioned.
12. The rationale and policy behind the vested rights doctrine support Appellant's position. Hagerott has taken steps in reliance on the building permit sufficient to establish his right to proceed.
IV. The Trailer Home is a Residence.
13. Not only is the presence of the trailer home on the site clear evidence of the steps Hagerott has taken in reliance on the permit, the trailer home constitutes an existing residence for purposes of the one mile setback. Hagerott moved the trailer to the site after receiving the residential building permit and before the feedlot permit was heard by the County Planning Commission. When it appeared that the County may grant the Berger feedlot permit, Hagerott did not proceed with his investment to connect either septic or electricity to the trailer until the feedlot CUP was resolved. Nevertheless, the trailer is habitable and can serve as a residence as the Mark Hagerott retirement home is completed.
14. The term "residence" is not defined by Morton County zoning, but "trailer" is defined as follows:
TRAILER: Any vehicle or structure, including but not limited to an automobile trailer and trailer coach, mounted on wheels for use on highways and streets; propelled or drawn by its own or other motor power; and designed and constructed to provided for living or sleeping quarters for one or more persons or for the conduct of a business, profession, trade, or occupation, or use as a selling or advertising device. If wheels of a trailer are removed, expect (sic) for repairs it is deemed to be a building subject to all the regulations therefore.
See Morton County Zoning, Art. 3 (emphasis added). Although the County alleges (without support) that the trailer remains on wheels, the wheels of the trailer were removed at the time it was moved to the site and the trailer currently sits on blocks. Thus, according to the ordinance, the trailer is "deemed to be a building." Morton County zoning further defines "dwelling" as "[a]ny building, or portion thereof, which is designed or used for residential purposes." Id. The trailer is a dwelling pursuant to the plain language of Morton County zoning regulations. And certainly the trailer was in place at the time of the County's decision to grant the CUP, thus rendering it "existing" at that time.
15. Nevertheless, with no reference to the aforementioned definitions, and with no actual findings as to the meaning of an "existing residence," the County refused to recognize the trailer as an "existing residence." The County's decision to grant the Berger feedlot permit within one mile of Hagerott's trailer violated the minimum setback of the County's zoning regulations.
V. The County's Speculation About Motives of Hagerotts is Misplaced
16. The County and District Court question whether Don and Mark Hagerott have, in fact, long planned to construct a retirement residence for Mark Hagerott, implying that the building permit was secured as an obstacle to the feedlot. Hagerott's testified that they have long-intended to establish a residence on their property. The County's only factual citation is mere conjecture in legal arguments made by Mr. Berger's attorneys, where they argued that Hagerotts obtained a building permit to obstruct the feedlot permit. (Appellee's Br. ¶6.) The conjecture of an attorney in an attorney's presentation is not factual evidence that the County Board can rely on as fact. Yet, Commissioner Zachmeier, in connection with his motion to grant the permit, stated "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." (Supp. App. 61.) There is no factual basis for this position.
VI. Hagerotts Have Standing
17. Hagerotts have a legal interest in building a home on Don Hagerott's property. If their ability to construct a residence is stripped away by the County's CUP within the one-mile setback from Hagerott's valid building permit, it's hard to understand the District Court's order finding that Hagerott's are not aggrieved. If not Hagerotts, it is hard to imagine how anyone (other than a permit applicant) would have standing to appeal any CUP decision.
18. The County suggests that to maintain a challenge of a zoning decision, the aggrieved person must have a specific, personal and legal interest in the subject matter of the appeal and to present proof that the Berger CUP could have a change on the use, enjoyment and value of the Hagerott property. (Appellee Br. at ¶20, citing 83 Am. Jur.2d Zoning and Planning §925.) The feedlot permitted within a quarter-mile from Hagerott's permitting residential structure will unquestionably have an impact on the use and enjoyment of Hagerott's land as is implied in the 1,000 foot setback requirement established in the ordinance. If the County suggests that Hagerott simply can't build there, it will otherwise take away their legal right to construct their home. Hagerotts easily meet the standing standards suggested by the County.
19. The U.S. Supreme Court recently considered standing requirements, applying the following analysis:
[P]laintiff must show that he is under threat of suffering "injury in fact" that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged action of the defendant; and it must be likely that a favorable judicial decision will prevent or redress the injury. This requirement assures that "there is a real need to exercise the power of judicial review in order to protect the interests of the complaining party,"
While generalized harm to the forest or the environment will not alone support standing, if that harm in fact affects the recreational or even the mere esthetic interests of the plaintiff, that will suffice.
Summers v. Earth Island Institute, 129 S.Ct. 1142, 1149 (2009) (citations omitted). There is standing to appeal if the aggrieved party shows a potential nuisance, an esthetic injury or even if a government decision adversely affects a recreational interest. If Hagerotts have a residence within the one mile odor setback (essentially a per se prospective nuisance), certainly they show an actual, particularized harm that can be fairly traceable to the challenged action of the County.
VII. Conclusion
20. For the foregoing reasons, Hagerotts urge this Court to reverse the determination of the District Court and find that the County acted arbitrarily, capriciously, and unreasonably in interpreting its own ordinances and in granting the CUP to Fred Berger.
| Dated this 8th day of October, 2009. | ||||||||||||
| VOGEL LAW FIRM | ||||||||||||
| By | /s/ | |||||||||||
| Tami L. Norgard (ND #05374) | ||||||||||||
| 218 NP Avenue | ||||||||||||
| P.O. Box 1389 | ||||||||||||
| Fargo, ND 58107-1389 | ||||||||||||
| Email: tnorgard@vogellaw.com | ||||||||||||
| Telephone: 701-237-6983 | ||||||||||||
| Attorneys for Plaintiffs/Appellants | ||||||||||||
| Donald Hagerott and Mark Hagerott | ||||||||||||
1. None of the caselaw cited by the County is on point. Each case cited, including the North Dakota cases, involve amendments to zoning after a permit has issued which render the permitted use nonconforming.