Dakota Resource Council v. Stark Cnty. Bd. of Cnty. Comm'rs

• Decision Date: 07 June 2012
• Docket Number: No. 20110172.,20110172.
• Citation: 817 N.W.2d 373,2012 ND 114
• Parties: DAKOTA RESOURCE COUNCIL, Appellant and Cross–Appellee, and Neighbors United, Myron and Nancy Eberts, Neil and Laura Tangen, Brittany Huggins, and Frank and Lucy Hurt, v. STARK COUNTY BOARD OF COUNTY COMMISSIONERS and Great Northern Project Development, Appellees and Cross–Appellants.
• Court: North Dakota Supreme Court

817 N.W.2d 373

2012 ND 114

DAKOTA RESOURCE COUNCIL, Appellant and Cross–Appellee,andNeighbors United, Myron and Nancy Eberts, Neil and Laura Tangen, Brittany Huggins, and Frank and Lucy Hurt,

v.STARK COUNTY BOARD OF COUNTY COMMISSIONERS and Great Northern Project Development, Appellees and Cross–Appellants.

No. 20110172.

Supreme Court of North Dakota.

June 7, 2012.

Derrick Lance Braaten (argued) and Lindsey Nieuwsma (appeared), Bismarck, N.D., for appellant and cross-appellee.

Mitchell D. Armstrong, Bismarck, N.D., for appellee and cross-appellant Stark County Board of County Commissioners.

Amy Lynn De Kok (argued) and Lawrence Bender (on brief), Bismarck, N.D., for appellee and cross-appellant Great Northern Project Development.

MARING, Justice.

[¶ 1] Dakota Resource Council (“the Council”) appeals from a district court judgment affirming the decision of the Stark County Board of County Commissioners (“the Board”) which approved a zoning change for certain land from agricultural to industrial and authorized nine conditional uses for the property. The Board and Great Northern Project Development (“Great Northern”) cross-appealed. We affirm, concluding the Council had standing to appeal the Board's decision and the Board did not misinterpret or misapply its zoning ordinance.

I

[¶ 2] Great Northern planned to construct and operate a coal gasification facility on a tract of land in Stark County. Great Northern's planned 8,100 acre complex would include a coal gasification plant, chemical fertilizer plant, electrical power plant, coal mine, solid waste landfill, and facilities for manufacture and storage of hazardous, explosive, and odorous products. Great Northern submitted an application to the Stark County Zoning Commission (“the Commission”) to change the zoning of the land from agricultural to industrial and to allow nine conditional uses of the land, including “[m]ineral and other substance exploration or excavation and mining [in] accordance with provisions of Sec. 6.10” of the Stark County Zoning Ordinance. The Commission scheduled a hearing on the application and, as required by the Zoning Ordinance, sent notice of the hearing by certified mail to all persons who owned land within 200 feet of the boundaries of the proposed rezoned tract. Following the hearing, the Commission voted to recommend that the Board approve the application, conditioned upon Great Northern obtaining all necessary local, state, and federal permits or approvals. The Board subsequently approved the application to rezone the property from agricultural to industrial and approved the requested conditional uses. The Board's approval was subject to several express conditions, including a requirement that Great Northern “obtain all the necessary local, state and federal approvals, licenses and permits relative to the operation of the coal mine.”

[¶ 3] The Council, Neighbors United, and several individuals who owned land near the rezoned tract appealed the Board's decision to the district court under N.D.C.C. §§ 11–33–12 and 28–34–01. The Council is a membership-based non-profit corporation which, among other things, works for preservation of family farms, regulation of coal mining and oil and gas development, protection of ground water and clean air, and sound management of solid and toxic wastes. Neighbors United is an unincorporated association which promotes the protection of farming and ranching. The district court initially determined that the Council, Neighbors United, and the individual landowners had standing to challenge the Board's decision, but the districtcourt affirmed on the merits the Board's decision to rezone the property and allow the conditional uses.

II

[¶ 4] In their cross-appeal, the Board and Great Northern contend the Council lacked standing to appeal the Board's decision to the district court. ¹

[¶ 5] Standing is a question of law which is reviewed de novo on appeal. State ex rel. Schlect v. Wolff, 2011 ND 164, ¶ 16, 801 N.W.2d 694;First Int'l Bank & Trust v. Peterson, 2011 ND 87, ¶ 9, 797 N.W.2d 316. As this Court explained in Nodak Mut. Ins. Co. v. Ward Cnty. Farm Bureau, 2004 ND 60, ¶ 11, 676 N.W.2d 752 (quoting Rebel v. Nodak Mut. Ins. Co., 1998 ND 194, ¶ 8, 585 N.W.2d 811) (citation omitted):

A party is entitled to have a court decide the merits of a dispute only after demonstrating the party has standing to litigate the issues placed before the court. Standing is the concept used “ ‘to determine if a party is sufficiently affected so as to insure that a justiciable controversy is presented to the court.’ ” Billey v. North Dakota Stockmen's Ass'n, 1998 ND 120, ¶ 7, 579 N.W.2d 171 (quoting Black's Law Dictionary 1405 (6th ed.1990)). A person cannot invoke the jurisdiction of the court to enforce private rights or maintain a civil action for the enforcement of those rights unless the person has in an individual or representative capacity some real interest in the cause of action, or a legal or equitable right, title, or interest in the subject matter of the controversy.

Because courts do not render advisory opinions or decide purely abstract questions, parties seeking relief from a court must demonstrate they have standing by alleging such a personal stake in the outcome of a controversy to justify the court's exercise of remedial powers on their behalf. Peterson, at ¶ 9;Ackre v. Chapman & Chapman, P.C., 2010 ND 167, ¶ 11, 788 N.W.2d 344.

[¶ 6] The Council contends it has associational standing because it is representing the interests of some of its members who would have individual standing. This Court identified the elements of associational standing in Nodak Mut., 2004 ND 60, ¶ 14, 676 N.W.2d 752 (quoting 9 V. Braucher, B. Jacobsthal & G. O'Gradney, Fletcher Cyclopedia of the Law of Private Corporations § 4227 (1999 Rev. ed.)):

[A] nonprofit organization that has not suffered an injury itself can sue as the representative of its members if: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. In addition, a nonprofit membership corporation has standing to seek judicial review on behalf of its members, of governmental or municipal regulations directly affecting such members.

See also Peterson, 2011 ND 87, ¶ 12, 797 N.W.2d 316.

[¶ 7] The Board and Great Northern contest only the first element of the three-prong test for associational standing, arguing the record does not establish that any of the Council's members had standing to sue in their own right. In order to satisfy the first prong, the association must demonstrate that “at least some of its memberswould have standing to bring the action in their own right.” Peterson, 2011 ND 87, ¶ 13, 797 N.W.2d 316. Therefore, the critical question in this case is whether any of the Council's identified members would have had standing to appeal the Board's decision.

[¶ 8] Under N.D.C.C. § 11–33–12, any person “aggrieved” by a zoning decision of a board of county commissioners may appeal to the district court. To assist in interpreting N.D.C.C. § 11–33–12, we have considered cases construing similar statutes authorizing appeals by an “aggrieved” person:

Under a similar statute authorizing an appeal from any county commission's decision by an “aggrieved” person, this Court said the person seeking to appeal must show a “personal, individual interest in the decision, and any grievance which he might have suffered simply because he is an elector and taxpayer is not sufficient to give him the right to appeal.” Huber v. Miller, 101 N.W.2d 136, 140 (N.D.1960). We said a resident taxpayer's “mere dissatisfaction or displeasure” with a county commission's decision for locating a road was insufficient to authorize the taxpayer to appeal from the decision. Id. We explained the person “must have some legal interest that may be enlarged or diminished by the decision to be appealed from. In other words, such party must be injuriously affected by the decision.” Id. See Cathay Special Sch. Dist. v. Wells County, 118 N.W.2d 720, 722–23 (N.D.1962) (school district losing territory in annexation proceeding has special interest to enable it to appeal county commission annexation decision as “person aggrieved” under N.D.C.C. § 11–11–39). In another context under N.D.C.C. ch. 28–32, this Court said a party who is factually aggrieved by a decision, as indicated by the circumstances of the particular case, has standing to appeal a decision by an administrative agency. Washburn Pub. Sch. Dist. v. State Bd. of Pub. Sch. Educ., 338 N.W.2d 664, 666–68 (N.D.1983). We said a person is factually aggrieved if the decision enlarges or diminishes that person's interest. Id. at 667.

Hagerott v. Morton Cnty. Bd. of Comm'rs, 2010 ND 32, ¶ 9, 778 N.W.2d 813.

[¶ 9] The result reached by the Court in Hagerott provides further guidance in determining whether a person has been aggrieved by a zoning decision. Hagerott had received a building permit to construct a house on his land in rural Morton County. Id. at ¶ 3. Shortly thereafter a neighboring landowner, Berger, applied for a conditional use permit to relocate a feedlot. Id. at ¶ 2. By ordinance, there was an odor setback that prohibited operation of a new feedlot within one mile of an existing residence. Id. Hagerott's building permit was for a site within the one-mile odor setback from Berger's proposed feedlot. Id. at ¶ 3. The Morton County Commission approved Berger's application, and Hagerott appealed to the district court, which affirmed the decision. On appeal to this Court, we concluded Hagerott had standing to challenge the County Commission's decision:

The Morton County Commission does not dispute that Donald Hagerott is the owner of land and the recipient of a permit to build a house on his land within the one mile...