Agenda - Planning Commission - 12/03/2008

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{) () November 10, 20081 Volume 21 No. 21 Feeding Operations (the "Ordinance"). Amendment #1 regulated ariimal feeding operations within the county. In June 2006, the County adopt- ed Amendment #2 to the Ordinance. Notice of Amendment #2 was not published in the official county newspaper until nine months' later. The Ramsey County Farm. Bureau and Don Plemel (collectively, the "Bureau") brought a declaratory judgmeilt action against the County, They asked the court to declare that Amendment #1 and ~eri.dment #2 were invalid because: (1) the ordinances conflicted with andwere pre- empted by state law; and (2) the County failed to immediately publish notice of Amendment #2 as required by state statutory law. . The court found for the County. It determined that Amendment #1 was stricken in its entirety when Amendment #2 was enacted. It further determined that Amendment #2 was valid because: (1) the CoUnty sub- stantially complied with the statutory publication requirements and the Bureau was not prejudiced by the publication delay; and (2) state laws did not preempt the ability of the County to enact Amendment #2.' The Bureau appealed. DECISION: Affirmed in pait; reversed in part; remanded. Although it ultimately founcl-th,at portions of Amendment #2 were invalid, the appe.llate colirt conclud~d that Amendment #2 was not in- valid because of the County's failure to strictly comply with the state statutory publication requirements. State law, N.D.C.C. S 11-33-09, required a county to give public notice of an adopted ordinance in the official county newspaper immediately after adoption. The court said a county did not have to strictly comply with that requirement, but only . needed to "substantially comply" with it. Only substantial compliance was necessary since: the publication requirement was directory in nature; and parties would not normally be injured because of delay since an or- dinance did not become effective until published. Thus, unless the Bu- reau could show prejudice from the delay, the County's failure to strictly comply with the publication requirements would not invalidate Amend- ment #2. The court found that the CO)lIlty&d substantially comply with the publication requirements: The County eventually published notice of Amendment #2, which did not become effective until that publication. Furthermore; the Bureau did not show that it was prejudiced by'the de- lay. in publication: The Bureau had actual notice of Amendment #2 at the time it was adopted, and Alnendment #2 could not be enforced until notice was published. Still, the court also concluded that portions of Amendment #2 were invalid. This was because it found the County had exceeded its author- ity in enacting Amendment #2. The applicable state law, N.D.C.C. ch.t11-33, had been amended in 2007 to prohibit a county from regulating anything more than the location and size of animal feeding' operations, i . \) @ 2008 Thomson ReutersIWest 7 69