Agenda - Planning Commission - 09/02/1997

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Page 2 - July 25, 1997 Z.B. ., Rezoning - Did city council follow correct procedures for rezoning hearing? Bigwood v. City ofWahpeton, Supreme Court of North Dakota, Docket No. 970003 (North Dakota) 1997 An industrial park was located on the south side of the city of Wahpeton, N.D. In 1968, the city designated the area for light industrial use; in 1987, the area was zoned for industrial and business use. In 1995, Douglas A. Carlson Development Inc., a construction company, bought several of the park's lots from the Wahpeton Community Development Corporation (CDC). Carlson wanted to build low-income-housing units on the lots, originally zoned for light industrial use. Apparently as a condition of the sale, the CDC asked the Wahpeton Planing Commission to rezone the lots for residential, multifamily use. The planning commission told the city council it planned to hold a public hearing on the matter and had the notice - with information about time, location, and the issue under ccnsideration - published in two successive issues of the local newspaper. Under the city code, notice of a hearing had to twice be published in the local newspaper and had to contain the time and location of the hearing, as well as a description of the issue. Several of the industrial park's property owners attended the meeting to discuss the request. Determining it could not yet make a decision, the commission decided to delay the vote until it received more information and could visit the site. Soon after the hearing, the city council met and, following the commission's report on its inaction, heard arguments and discussed the issue. Like the commission, the council did not act on the request, deciding to wait for more information. The commission met again and voted to reject the rezoning request. That same day, the council, informed of the commission's vote, again discussed the issue. The commission met again, hearing opposition from the CDC's neighboring property owners. The commission's president said the previous "recommenda- tion" would stand, and the commission took no further formal action. Again, on the same day, the council discussed the situation and the commission's decision and this time decided to approve the rezoning request. Several of the industrial park's property owners asked a court to declare the new ordinance invalid. According to the owners, the council violated proper procedure and notice requirements for rezoning by holding hearings on the same day as the commission's. The Owners said the procedures used were arbitrary, capricious, and unreasonable, violating due process. The owners pointed to the city code provision that stated, "The City Council shall not hold its public hearings or take action until it has received the final report of the City Planning Commission." Another subsection of the city code, not the one the owners cited, governed the procedure for amending existing zoning ordinances. It required a commission recommendation before the council C}5