Too much work has been done on a Blue Ridge township water depot to turn back now, the Williams County Commission decided in a 3-to-2 split, in which Commissioner Steve Kemp cast the final, deciding vote.
Last meeting, Commissioner Martin Hanson had brought, via Robert’s Rules of Order, a motion to move a water depot proposed by D.D. Smith Enterprises to a different location. It was tabled for discussion during Tuesday’s meeting.
Prout explained that commissioners cannot proceed with Hanson’s motion without first finding that work already done on the water depot can be reasonably undone. Even then, however, commissioners cannot simply transfer the conditional use permit to another location. The applicant would need a brand new permit.
Attorney R.J. Pathroff, representing D.D. Smith Enterprises, said his clients have already taken a number of costly actions since the Feb. 6 approval of their permit. These include contracting with a company to drill the well, drilling a 150-foot test hole, purchasing a $60,000 water pump, and obtaining a required 75-foot easement.
His clients received a letter from the county on Feb. 22 informing them of Hanson’s intention to bring a motion changing their permit, but it didn’t identify the specific change, or the reason for it, Pathroff said. That hampers efforts to prepare a response.
Robert’s Rules of Order might not have required Hanson to state a rationale for bringing the motion, but North Dakota Century code requires proper notice, Pathroff added. That would include the specific action being proposed, and the reasons for it. Without it, the county is violating his clients’ right to due process.
”Any adverse action would violate the zoning laws of the county, and would amount to arbitrary, capricious and oppressive conduct,” Pathroff said.
The county’s zoning laws list reasons for revoking a permit, none of which have occurred here, the attorney said. Objectors to the project also had an opportunity to speak, and their comments were considered by the county at the time.
Any adverse action here has a chilling effect, Pathroff said.
“Otherwise, no one can rely on commission zoning decisions, for fear that any investment they might make could be taken away a couple weeks later,” he said.
Hanson argued that nothing has progressed too far yet.
“A hole in the ground from a test well can very easily be undone,” he said. “You fill it up, and it’s undone. We are not saying you cannot have a water depot. But when the adjacent landowner is against it and the township is against it and it can be placed in the northwest corner instead, where no one objects to it … it’s just a chance to be a good neighbor.”
Hanson also suggested a permit would not be needed for the new location.
“I was told by the guy who handles this area that because the Little Muddy runs through that section of land, the state hydrologist considers that not only a ground-fed aquifer, but it’s also percolated down from the Little Muddy, so you don’t have to get a permit.”
Hanson suggested the contracted company would readily drill the well in another location.
“It’s easy access, and no one gets aggravated, and you still get a water depot,” he said. “It’s that simple.”
Prout pointed out that the township recommendation and the neighbor’s letter were considered in February.
“It was,” Hanson acknowledged, but then added, “But the landowners are upset it was not considered.”
Williams County Commission Chairman David Montgomery pointed out the neighbors could have attended the hearing in person to object.
The couple are in their 80s, and one wears a hearing aid, Hanson said. “They had a handwritten letter, and that should have been enough.”
Montgomery asked how many were on the township board, and whether any are related to anyone involved.
There are three on the board, Hanson replied, but indicated he was unsure of any particular relationship. It was eventually determined, however, that two members of the board are related to Smith.
“How is their relationship?” Montgomery asked Hanson.
“I don’t know, you’d have to ask them,” he replied.
Montgomery has seen cases where township board members are voting against a family member they dislike.
“It’s not right for us to get involved in a dispute like that,” he said.
Commissioner Barry Ramberg agreed that happens, but still questioned the original decision.
“Why not move the depot where it won’t affect the surrounding community? Both sides win,” he said.
Commissioners cannot simply transfer the permit, Proudt said. They really have only two legal options at this point. They must find either that not enough work has been done to preclude denying the permit, or that too much has been done.
If the latter, Hanson’s original motion cannot be considered at all.
“I’ve never seen a hole in the ground that big around that cannot be filled in,” Hanson said.
Aberle replied, “You can fill the hole in, but we’d have to pay for that test hole, and any other costs they’ve incurred. Any contract costs or anything else, we are stuck with them. That is coming from our own attorney.”
Hanson still reasoned that the well could just as easily be drilled in the new location, and that since there are pivots there, a test hole might not even be necessary.
Montgomery suggested their insurance reserve fund would not defend the commission if its decision violates state laws.
“They would defend, but they wouldn’t pay damages,” Prout said.
“Not when you violate state law,” Montgomery agreed.
“Well that would depend on whether you’re going to get sued,” Hanson said.
“You can pretty much write the check and fill in the amount later,” Aberle replied.
“I don’t see the cause for a lawsuit when all we would be doing is listening to the neighbors and the Township Board,” Hanson replied. “That is our job, and we didn’t do it.”
“We also have a fiduciary responsibility to make a decision based on what is best for the citizens of Williams County,” Montgomery said. “I’m not going to be part of any lawsuit, I can tell you that right now.”
Hanson again stated that his amendment was just to move the location, not deny the permit.
“But that is the effectiveness of this,” Prout said. “By making a motion to move it, you are revoking the one in that location, because you granted it in that location.”
“Well a motion could be made to move the CUP to that location,” Hanson insisted.
Prout shook her head. “This is what you need to decide. Whether work has been done that can or cannot be undone. Make a motion that the work done can or cannot be undone. That is what I recommend.”
Hanson instead made a motion to transfer the permit to the new location he had suggested.
“That doesn’t address the issue,” Prout pointed out.
Montgomery asked Prout to confirm whether she’d said that a conditional use permit cannot be transferred.
“Not without redoing the planning and zoning process,” Prout confirmed.
After more back and forth, Hanson agreed to amend his motion to a finding that work on the water depot can easily be undone, since it’s “just a test hole.”
Ramberg seconded “for discussion” and asked how they would know which determination to make.
Montgomery conceded it can be argued both ways.
“What about the contracts he signed? And what about the purchase of equipment?” he asked. “I mean, obviously Mr. Hanson has the answers to everything. How do you know if the pump can pump the same water in a different location? I am not an engineer. All I know is, we are opening ourselves up to a whole hell of a lot of litigation.”
“And we are violating our own attorney’s advice as well as state laws and our own zoning laws,” Aberle added. “If we approve this, we are going to get beat. Whether we move it or deny it, we are going to pay.”
Hanson’s motion failed on a roll call vote 3 to 2. Martin and Ramberg voted for it, while Montgomery and Aberle voted against it. Kemp cast the last and deciding vote against it.
Prout said the determination meant Hanson’s original motion cannot be voted on.
“So the motion cannot go any further under Robert’s Rules of Order,” she said, adding that leaves the original permit intact.