Agenda - Planning Commission - 05/04/2017

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April 25, 2017 I Volume 11 I Issue 8 Zoning Bulletin NORTH DAKOTA (03/07/17)—This case addressed the issue of whether state laws regulating oil and gas development preempted county zoning laws with regard to the siting of a waste oil treating plant. The Background/Facts: In August 2013, Environmental Driven Solutions, LLC ("EDS") received a permit from North Dakota's Industrial Commission (the "Commission") for a waste oil treating plant in Dunn County (the "County"). The permit allowed EDS to recycle and treat waste crude oil. The permit noted that the treating plant "must comply with all applicable local, state, and federal laws and regulations." After EDS began constructing the plant, the County issued notices of "violation and order to abate." The County maintained that the treat- ing plant could not be constructed on EDS' property because such a fa- cility was not an allowed use in the zoning district in which the prop- erty was located. EDS then applied to the County to rezone the property, but the County rejected that application. EDS then applied for a conditional use permit, but that too was denied. Eventually, EDS brought a legal action against the County. EDS asked the court to declare that the Commission, rather than the County, had jurisdiction to determine siting of the plant. The Commission intervened in the action. Finding there were no material issues of fact in dispute, and deciding the matter on the law alone, the district court, issued summary judg- ment in favor of EDS. The court concluded that the Commission had exclusive jurisdiction to determine the location of the oil and gas waste treating plant and that the County's zoning ordinances were preempted by state law governing oil and gas development. The County appealed. The County argued that the Commission did "not have the power to permit oil waste treating facilities that are barred by a county's `properly -enacted zoning ordinance and land use comprehensive plan.' " DECISION: Judgment of district court affirmed. The Supreme Court of North Dakota held that state laws regulating oil and gas development preempted county zoning laws, and that the Commission had the ultimate jurisdiction to determine siting of waste oil treating plants, including EDS' plant. In so holding, the court explained that, as with federal preemption analysis, North Dakota law recognizes three forms of preemption: express preemption; field preemption; and conflict preemption. Describing express preemption and field preemption, the court said that a county ordinance contravenes state law: "(1) when there is an ex- plicit state law or rule restraining the county's authority;" and "(2) 6 0 2017 Thomson Reuters