The Morton County Planning & Zoning Commission Agenda for October 26, 2017

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1 The Morton County Planning & Zoning Commission Agenda for October 26, 2017 Planning and Zoning meeting scheduled for October 26, 2017 at 5:30pm located in the Morton County Commission room in the County Courthouse, nd Ave. NW, Mandan, ND. Call to Order Roll Call Approval of Agenda Approval of Minutes from September 28, 2017 meeting 1. Discussion: 2018 P&Z Regular Meeting Schedule 2. Discussion: final plat of a long-form subdivision known as Nuss Second Subdivision and a zoning map amendment from Agricultural (A) to Residential (R) for approx acres in the SE¼ of Section 32, Township139N, Range 82W, Morton County. 3. Public Hearing: Morton County Comprehensive Plan Public Hearing: update on Harmon Lake Dam Break Inundation Zone. ISSUES MAY BE ADDED OR DELETED BY MEETING DAY Planning and zoning final actions of the County Commission in the previous month (for information purposes): Name Action Type Location S½ of the S½ of Section 20, Magilke Special Use Permit Approve Accessory Dwelling Township135N, Range 82W Ale Acres Deny Short-form Subdivision N½ of Section 20, Township 140 N, Range 81 W Page 1 of 1

2 THE MORTON COUNTY PLANNING AND ZONING COMMISSION MINUTES Vice Chairman Buckley called the Morton County Planning and Zoning Commission meeting to order at 5:30 P.M. September 28, 2017, in the Morton County Commission Room, nd Ave NW, Mandan ND Other Commissioners present were Zachmeier, Wald, Kilen, Laber and Jockers. Absent Schulz, Saxowsky, and Rohr. Also present were County Planner Pierce, County Engineer Aubol and Deputy Auditor Eckroth. Laber moves and Kilen seconds to approve the agenda. All voting aye, motion carries. Laber moves and Jockers seconds to approve the minutes of August 24, All voting aye, motion carries. Vice Chairman Buckley opened the Public Hearing Magilke special use permit for one accessory dwelling unit on approx. 160 acres in the S ½ of the S ½ of Section 20, Township 135N, Range 82W, Morton County. Laber moves and Zachmeier seconds to recommend approval of a special use permit to locate an accessory dwelling unit in the S ½ of the S ½ of Section 20, Township 135N, Range 82W, Morton County, as the application conforms to the requirements of Section of the Morton County Land Use Code, with the conditions presented by staff: 1. Applicant must apply for building permit from the Morton County Tax Director s Office and the residence must be set on a foundation that is approved by the Morton County Building Inspector. 2. Applicant must obtain a septic permit from Custer Health. 3. The accessory dwelling unit shall be numbered with the address number. All voting aye, motion carries. Laber moved and Jockers second to adjourn at 5:45 pm. All voting aye motion carried. Dennis Rohr, Chairman Dawn R Rhone, Secretary Morton County Planning & Zoning Commission September 28, 2017 Meeting Minutes Page 1 of 1

3 Proposed 2018 Planning & Zoning Commission Meeting Schedule All meetings on 4 th Thursday except where indicated* January 25 th February 22 nd *March 29 th April 26 th May 24 th June 28 th July 26 th August 23 rd September 27 th October 25 th *November 15 th *December 20 th

4 Nuss Second Subdivision Morton County Planning and Zoning Department Created: 7/20/2017 LYONS RD 28th AVE Zoning Project Area ± ,000 Feet Hebron Glen UllinNew Salem Mandan Almont Agricultural Limited Industrial Flasher Residential Industrial Limited Commercial Residential Multifamily Recreational Commercial Proposed boundaries of site not exact. For planning purposes only.

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6 STAFF REPORT MORTON C O U N T Y D E P A R T M E N T O F P L A N N I N G A N D Z O N I N G ITEM 2 Nuss Second Subdivision Public Hearings: July 27 & August 24, 2017 Planning and Zoning Commission Regular Meetings Application Type: Long-form Subdivision # of Properties: 3 Location: SE¼ of Section 32, Township 139 N, Range 82 W Acreage: 6.82 Applicants: Christian and Donald Nuss and Jeremiah Lindsley Existing Zoning: Agricultural (A) Application Fee $600 (7/6/2017) Proposed Zoning: Residential (R) Citizen Outreach: 9 Letters sent (7/13/2017) 9 Letters sent (8/11/2017) Notice of Public Hearing advertised. Proposal: Future Land Use Category: Agricultural Applicants are subdividing three residential lots, one for imminent construction of a residence and two for possible construction of residences in the future. Recommendation from Staff: Deny the final plat of the long-form subdivision and zoning map amendment. BACKGROUND AND OVERVIEW The proposed subdivision lies west of 28 th Avenue and south of Lyons Rd (approximately 3½ miles south of I-94). The property is owned by Donald Nuss with a life estate held by Christian Nuss. Donald has three children. The applicant proposes to establish three more or less equal sized lots to transfer to each of the children. One of children intends to build a residence imminently and the other two siblings may build homes in the future. The property currently lies in the Agricultural (A) District and will require a zoning map amendment to Residential (R) District. extended to serve the subdivision. FINDINGS Surrounding lands generally lie in the Agricultural (A) District. Gravel stock piles, under contract with Morton County, lie to the west. There are four residences in the same quarter section as the proposed subdivision. Missouri West Water is not available to be extended to serve the subdivision. Power service can be made available. Morton County s Emergency Manager provided a letter stating that the location and size of the subdivision will not prohibit the provision of standard emergency services to the subdivision. Mobility of emergency response may be limited in cases of severe weather or flooding. Page 1 of 3

7 28 th Ave is narrow and does not have an adequate turn-around for a snow plow. Adding three lots, as proposed, would not significantly impact current plowing operations. However, if any additional lots are proposed in the future for this area, the applicant should be required to develop 28 th Avenue into a thru-road at the applicant s expense at that time. ANALYSIS & RECOMMENDATION The proposed subdivision does lie within the area addressed by the Northeast Morton County Future Land Use Plan. That plan identifies the land use priority for this area as Agricultural. In areas identified as Agricultural staff recommends, maintaining a maximum gross residential density of four residences per quarter section (not counting farm worker dwelling units in the average). In terms of zoning, the minimum lot size in the Agricultural (A) District is 35 acres. This equates to 4.5 units per quarter section, or 4 units in cases where a significant amount of right of way has been dedicated. As there are already three residences in this quarter section, adding one more lot would be reasonable. However, staff recommends against entitling three additional residences in this quarter. At the August 24 th meeting of the Planning & Zoning Commission, a motion passed to continue consideration of the application and request that the State s Attorney provide an opinion. The question at issue is: do the resources extended between the preliminary plat and final plat stages of the application process constitute detrimental reliance on the part of the applicant? The State s Attorney s opinion provides that the actions of the Planning & Zoning Commission and staff are defendable in the event that the application is denied. Staff recommendation Deny the final plat of the long-form subdivision and zoning map amendment from Agricultural (A) District to Residential (R) District. Staff suggests that the applicant could bring the subdivision back as a single lot, short-form subdivision. Suggested motion I move to recommend denial of the preliminary plat of the long-form subdivision known as Nuss Second Subdivision and zoning map amendment from Agricultural (A) District to Residential (R) District, as the subdivision is not in keeping with the land use priorities for the area, as established in the Morton County Future Land Use Plan. Page 2 of 3

8 ATTACHMENTS 1. Zoning map 2. Final plat 3. State s Attorney s opinion FIGURE 1 FACING SOUTH ON 28 TH AVE GRAVEL STOCK PILES VISIBLE AT RIGHT Page 3 of 3

9 OFFICE OF THE STATE S ATTORNEY MORTON COUNTY, NORTH DAKOTA 210 SECOND AVENUE NW MANDAN, NORTH DAKOTA, PHONE To: From: Re: Commissioner Andy Zachmeier Commissioner Cody Schulz Natalie Pierce, Director, Morton County Planning and Zoning B. Grosinger /s/brian D. Grosinger Nuss 2 nd subdivision Date: September 1, 2017 C: A. Koppy BACKGROUND This involves the Nuss 2 nd Subdivision. In brief 1 Application was made for preliminary plat to Planning and Zoning for review. 2 Public notice was made and then preliminary plat hearing was held July 27, The plat was not denied. A motion passed to continue consideration of the plat. 3 Further follow up, e.g. the Applicant submitting storm-water management plan occurred. 4 The Applicant submitted a final plat to Planning and Zoning for review. 5 It was confirmed that this property involved was subject to the Northeast Morton County Land Use Plan. 6 Public Notice was issued and public hearing for the final plat occurred on August 24, A motion to deny failed, a motion to table until legal opinion could be obtained passed. 7 Whatever decision comes from Planning and Zoning decision potentially goes to the Morton County Commission for consideration. ISSUE Does the money spent or resources extended between the preliminary and final stages of the planning and zoning review process constitute detrimental reliance on the part of the applicant?

10 ANALYSIS Through the process, everyone, including the applicant, is on notice that no final decision has been made. (Knew or should have known) As well, everyone is on notice that even a decision of the planning and zoning board is subject to review by the Morton County Board of Commissioners. As a predicate for a claim of detrimental reliance, or equitable estoppel, or whichever label we attach, there must be a foundation element that the party claiming harm relied on a misrepresentation. In this matter, the passing of a motion constituting a preliminary decision cannot be the basis for a claim of detrimental reliance. No guarantees are attached to a preliminary decision. Whether a political subdivision can be held responsible for equitable estoppel or detrimental reliance is an issue previously considered in regard to County business. By statute, political subdivisions have some limited immunity. N.D.C.C How far that immunity extends, can be subject to interpretation, and there may be vulnerability to future North Dakota Supreme Court precedent. Thus, it may be best to examine the issue further in addressing potential immunity. Two representative cases would include: Under North Dakota law, party claiming estoppel must show lack of knowledge of truth as to facts in question, good-faith reliance on other party's conduct or statements, and action or inaction resulting in a prejudicial change of position. Minnesota Farm Bureau Marketing Corp. v. North Dakota Agr. Marketing Ass n Inc., 563 F.2d 906 (8 th Cir 1977) Under North Dakota law, doctrine of equitable estoppel requires that plaintiff show defendant engaged in conduct amounting to (1) false representation or concealment, (2) intention or expectation that plaintiff would be influenced by conduct, (3) defendant's knowledge of the real facts, and (4) reasonable reliance on the conduct; plaintiff must have reasonably relied on defendant's misconduct or false representations and there must have been some form of affirmative deception. Humann v. KEM Elec. Co-op Inc., 450 F.Supp 2d 1006 (ND Dist. 2006) Those two representative cases primarily deal with intentional or knowing conduct on the part of the party making the representation. There is not such intentional misrepresentation in this matter. Even if the concept could be

11 stretched to negligence, it appears to me, the sole negligence would be in regard to the application of the land use plan. If such negligence existed, it appears to me that concern was cured prior to any significant damage was sustained by the applicant. One brief addition, routinely the actions of political subdivisions are subjected to what I will call the arbitrary and capricious test. A decision to follow the land use plan is rationally related to the planning goals. OPINION The actions of the Planning and Zoning Commission, as well as the Morton County Staff are defendable should the plat be denied.

12 MEMO TO: Planning & Zoning Commission FROM: Natalie Pierce, Director of Planning and Zoning DATE: October 20, 2017 SUBJECT: Comprehensive Plan A public hearing regarding the Morton County Comprehensive Plan is scheduled in front of the Planning & Zoning Commission at the October 26, 2017 regular meeting. A link to the revised draft is available on the Morton County Planning & Zoning Website. The link was provided via along with a link to the October 26 th packet. Highlights of the Plan: Would establish a Growth-Priority Area defined by those areas on the consolidated future land use map with designations of Residential, Rural Residential, Build-Thru Residential, Commercial, Industrial and Public. Areas outside the Growth Priority Area (identified on the consolidated future land use map as Agricultural) would have a maximum allowable residential density of four (4) residences per quarter section. Establishes policies for construction of thru-roads in subdivisions in certain cases. Establishes a new future land use category of Airport to apply to the Mandan and Glen Ullin airports. Identifies areas for Industrial development near Hebron, Glen Ullin and New Salem (in addition to the Industrial areas already established in the NE Morton County Future Land Use Plan). Updates the Compatible Zoning Districts table from the version established in the NE Morton County Future Land Use Plan. Prescribes planning actions to be taken in the future such as development of: o o o small area plans where residential growth is likely in the next 5-10 years; a parks and trails master plan; many other projects. Page 1 of 1

13 MEMO TO: Planning & Zoning Commission FROM: Natalie Pierce, Director of Planning and Zoning DATE: October 20, 2017 SUBJECT: Harmon Lake Dam Break Inundation Zone (DBIZ) Update In March of this year, two subdivision applications were considered by the Morton County Planning & Zoning Commission where the subject property lay in the probable dam inundation zone. The Commission faced the difficult task of evaluating the applications in the absence of an established DBIZ policy. County staff and representatives of the Morton County Water Resource District (MCWRD) have been working throughout the year in an attempt to bring the State Water Commission (SWC) to the table to develop a definition of the Harmon Lake DBIZ. As of late September, a staff member at the SWC communicated that the SWC would not be in a position to participate in determining a definition for the Harmon Lake DBIZ in the near future. County staff then placed the delayed Ale Acres subdivision on the October 12 th County Commission Agenda. County Commission denied the application. Commissioner Schulz was successful in setting up a meeting with the Assistant State Engineer regarding the Harmon Lake DBIZ. The update that came out of that meeting is as follows. The Office of the State Engineer (OSE) will task one of their engineers and one engineer from HDR (their contracted consultant) to work together to develop a guidance document that will establish assumptions for dam hazard classification and inputs for a dam inundation model. That guidance document is anticipated to be completed by the end of A new DBIZ model will be developed, either by NRCS staff or an engineering firm of the MCWRD s choosing, based on inputs provided by the guidance document. After the new model is developed, there will be discussions among County staff and Commissioners, OSE, SWC, and MCWRD to arrive at a definition of the DBIZ, as well as a set of development standards/criteria, that would be adopted into the Morton County Land Use Code. Staff had anticipated bringing forward a proposal for a moratorium on development in the probable DBIZ to the October 26 P&Z Commission meeting. However, that presentation will not be made, considering the time-frame that has been proposed for the OSE to make forward progress. Page 1 of 1