Gowan v. Ward County Com'n

• Decision Date: 30 April 2009
• Docket Number: No. 20080239.,20080239.
• Citation: 764 N.W.2d 425,2009 ND 72
• Parties: David GOWAN, Plaintiff and Appellant v. WARD COUNTY COMMISSION, Defendant and Appellee.
• Court: North Dakota Supreme Court

764 N.W.2d 425

2009 ND 72

David GOWAN, Plaintiff and Appellant v. WARD COUNTY COMMISSION, Defendant and Appellee.

No. 20080239.

Supreme Court of North Dakota.

April 30, 2009.

Lynn M. Boughey, Boughey Law Firm, Bismarck, N.D., for plaintiff and appellant.

Randall J. Bakke (argued) and David R. Phillips (on brief), Smith Bakke Porsborg & Schweigert, Bismarck, N.D., for defendant and appellee.

CROTHERS, Justice.

[¶ 1] David Gowan appeals from a judgment affirming the Ward County Commission's decision to deny his request to change the zoning of his land from agricultural to residential. Because the Ward County Commission's denial of Gowan's request is supported by substantial evidence and is not arbitrary, capricious or unreasonable, we affirm.

I

[¶ 2] In 2005 Gowan purchased land west of Minot in Burlington Township that was zoned agricultural. The land is located about one-quarter mile downrange from a law enforcement firing range. A private shooting range and a private archery range are also located in the area. In 2007 Gowan received preliminary plat approval by the Ward County Planning Commission ("Planning Commission") for a 12-lot residential subdivision on the property. Gowan requested that the Planning Commission approve the proposed final plat and change the zoning of the property from agricultural to residential to allow construction of the development. After two hearings, the Planning Commission recommended Gowan's request be denied. The Planning Commission cited safety concerns, a fear of having to close the firing range, and a reluctance to have the development hamper rural activities in the area as the reasons for the denial.

[¶ 3] Gowan appealed the Planning Commission's denial of his rezoning request to the Ward County Commission ("Commission"). Gowan and other concerned citizens appeared on the request at two Commission meetings. On October 15, 2007, the Commission, on a three to two vote, approved the Planning Commission's recommendation and denied Gowan's request to change the zoning of his property from agricultural to residential. The district court affirmed the Commission's decision.

II

[¶ 4] Gowan argues the Commission erred in denying his request to rezone his property from agricultural to residential.

[¶ 5] This Court's deferential standard of review for decisions of local governing bodies is well established:

"When considering an appeal from the decision of a local governing body under N.D.C.C. § 28-34-01, our scope of review is the same as the district court's and is very limited. Tibert v. City of Minto, 2006 ND 189, ¶ 8, 720 N.W.2d 921 (citing Pic v. City of Grafton, 1998 ND 202, ¶¶ 6, 8, 586 N.W.2d 159). This Court's function is to independently determine the propriety of the [Commission's] decision without giving special deference to the district court decision. Tibert, at ¶ 8. The [Commission's] decision must be affirmed unless the local body acted arbitrarily, capriciously, or unreasonably, or there is not substantial evidence supporting the decision. Id. (citing Graber v. Logan County Water Res. Bd., 1999 ND 168, ¶ 7, 598 N.W.2d 846). `A decision is not arbitrary, capricious, or unreasonable if the exercise of discretion is the product of a rational mental process by which the facts and the law relied upon are considered together for the purpose of achieving a reasoned and reasonable interpretation.' Tibert, at ¶ 8 (citing Klindt v. Pembina County Water Res. Bd., 2005 ND 106, ¶ 12, 697 N.W.2d 339). `We fully review the interpretation of an ordinance, and a governing body's failure to correctly interpret and apply controlling law constitutes arbitrary, capricious, and unreasonable conduct.' City of Fargo v. Ness, 551 N.W.2d 790, 792 (N.D.1996) (citing Gullickson v. Stark County Comm'rs, 474 N.W.2d 890, 892 (N.D.1991))."

Hentz v. Elma Twp. Bd. of Supervisors, 2007 ND 19, ¶ 4, 727 N.W.2d 276.

[¶ 6] In this case, the Commission prepared extensive and detailed findings explaining its rationale for denying Gowan's rezoning request:

"There is a police firing range, pistol shooting range, and archery range in the area that Mr. Gowan seeks to have rezoned from agricultural to residential. The firing range is used almost every day for training purposes by law enforcement and the military. According to law enforcement representatives, if Mr. Gowan's zone change request was granted, the safety of future residents of Mr. Gowan's proposed development would be at risk due to the close proximity and location of the firing range. Extensive testimony was given by several law enforcement representatives indicating that the close proximity of the firing range to the proposed development would be dangerous. Steve Kukowski has been with the Ward County Law Enforcement center for 34 years and owns land in the area. He maintains the firing range. He stated that law enforcement sends officers every day to train on the firing range. This includes brand-new officers that have never handled firearms before. In such circumstances, Kukowski testified that accidents do happen.

"The Ward County Commission was advised there was recently an incident in which a stray bullet fired by a police officer at a police firing range strayed out of the range, and struck an apartment building where children were watching TV. This shot was fired by a handgun. The bullet traveled a distance of just under three quarters of a mile. The area where law enforcement shoot high powered rifles is only a quarter of a mile from the area that Mr. Gowan would like to place housing. Minot Police Department Chief Jeff Balentine stated that a police firing range and [sic] [E]lk [C]ity[,] Oklahoma[,] had to close after a military veteran was accidentally shot while standing outside a car dealership when a bullet ricocheted off a metal frame that holds targets at the gun range. It would be expensive to move the range. He stated there are kids in the area and he is concerned with safety. He stated that rifle gunfire can travel a long way from a ricochet. Law enforcement indicated this is a very dangerous situation due to the fact that high powered rifles, including sniper rifles, shoot even further than handguns, such as the handgun used in the earlier incident. The Ward County Commission finds, based upon the statements and correspondence of law enforcement, that the proximity and location of the police firing range, pistol shooting range, and archery range pose an unreasonable risk to the safety of future residents, including children, in Mr. Gowan's proposed development.

"Further, according to law enforcement representatives, other law enforcement training facilities in the state, such as the facilities in Fargo and Bismarck, were forced to shut down as residential development encroached on their training facilities. If Mr. Gowan's zone change request was granted, the Minot police department might have to purchase new land and start over at a new range in a different location at the expense of taxpayers. A law enforcement officer testified that currently, Bismarck law enforcement officers travel many miles in order to do their training. Ward County would also be forced to purchase land further outside of residential areas and law enforcement would have to travel in order to train. He testified that the Minot Rifle [a]nd Pistol Club built a new facility for a cost of over $500,000. Therefore, it would be quite expensive for law enforcement to purchase land and move to a new range or build a new facility for law enforcement training purposes.

"Other firing ranges near residential areas have had difficulties because of noise complaints from residents. There is automatic rifle fire at the range near Mr. Gowan's property, which is different than an ordinary firing at a shooting range. There is also shooting in all weather conditions and at...