Agenda - Planning Commission - 05/04/2017

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Zoning Bulletin April 25, 2017 I Volume 11 I Issue 8 when the industry or activity involved is already subject to substantial state control through broad, encompassing statutes or rules." The court described conflict preemption by noting that "a local governing body cannot validly enact a zoning ordinance that contravenes federal or state law." The court admitted that while it is not always clear "which type preemption is being considered," it is "clear that a local governing body's actions and decisions may be preempted by state or federal law." Looking at the applicable state law here —Chapter 38-08, N.D.C.C., the "Act for the Control of Gas and Oil Resources," the court noted that law equipped the Commission "with comprehensive powers to regulate oil and gas development" in North Dakota. Section 38-08-04, N.D.C.C., provides in part: The commission has continuing jurisdiction and authority over all persons and property, public and private, necessary to enforce effectively the provisions of this chapter . . . [including] [t]o regulate . . . all other operations for the production of oil or gas[, and to] consider . . . safety of the location and road access to . . . treating plants . . . . The court found section 38-08-04(2), N.D.C.C., to be unambiguous and to clearly provide that "the Commission has statutory authority to regulate treating plants." The court found it clear that "the North Dakota legislature intended that the North Dakota Industrial Commis- sion would `occupy the field' of the regulation of oil and gas waste treatment plants and, therefore, has exclusive jurisdiction of the issue of the location of oil and gas waste treating plants." The County had argued that it had "shared jurisdiction" with the Commission "over the location of the treating plant based in part on the permit's requirement that the treating plant `comply with all applicable local . . . laws and regulations.' " The court rejected that argument, saying that "the Commission's order nevertheless would supercede any county zoning requirements." Thus, the court concluded that, here, the County's zoning requirements were preempted by state law and the Commission's order in this case. See also: State ex rel. Stenehjenz. v. FreeEats.con2, Inc., 2006 ND 84, 712 N.W.2d 828 (N.D. 2006). See also: Ramsey County Fa»n Bureau v. Ramsey County, 2008 ND 175, 755 N.W.2d 920 (N.D. 2008). Case Note: The County had also argued that, for various reasons, it was "better suited than the Commission to regulate the location of treating plants within the [C]ounty. " The court responded, saying that "[p]ublic policy is declared by the legislature's action, and the public policy arguments raised by the County here are issues for the legislature to consider." ' 2017 Thomson Reuters 7