Agenda - Planning Commission - 02/02/2017

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Zoning Bulletin December 10, 2016 I Volume 10 I Issue 23 The Objectors had made additional claims that the rezoning here amounted to improper spot zoning because it had no relation to the public health, safety, morals and general welfare relating to the public health, safety, morals and general welfare. The court did not analyze that argument noting such analysis was only necessmy if the Objectors first satisfied their burden to prove a difference in the treatment of characteristically similar surrounding land —which. the court found the Objectors failed to do. Equal Protection —Zoning ordinance allows waiver exceptions to construction prohibitions for platted property but not for unplatted property Landowners challenge ordinance as unconstitutional in violation of equal protection Citation: Ferguson v. City of Fargo, 2016 ND 194, 2016 WL 5939664 (N.D. 2016) NORTH DAKOTA (10/04/16)—This case addressed the issue of whether a zoning ordinance that allowed waiver exceptions on platted property but not on unplatted property to a prohibition on construction within certain setback areas of rivers was unconstitutional in violation of equal protection. The Background/Facts: In May 2012, after historic flooding, the City of Fargo (the "City") enacted an ordinance (the "Ordinance") that prohibited construction within certain setback areas of the Red, Wild Rice, and Sheyenne rivers. The Ordinance created a distinction between platted and unplatted property regarding the ordinance's exceptions to the prohibition on construction. Platted property is property that has been subdivided into blocks and lots. Unplatted property is property that has not been subdivided. Under the Ordinance, owners of vacant property platted before the Ordinance's ef- fective date could apply to the City commission for a waiver from the construction prohibition. The granting of a waiver would allow the property owner to construct new buildings or structures within the setback areas. Under the Ordinance, owners of unplatted property could not apply for a waiver al- lowing construction of new buildings within the setback areas. Edward and Lavonna Ferguson (the "Fergusons") owned approximately six acres of unplatted property adjacent to the Sheyenne River that was partially within the Ordinance's setback areas. After the Ordinance went into effect, the Fergusons requested a waiver seeking to develop their property into multiple single-family duplexes. Per the Ordinance, the City commission denied the Fergusons' request because the property was not platted. © 2016 Thomson Reuters 7