Board rules that applicant can't return for 6 months

An interesting issue came up in a recent case from North Dakota. That case, Dahm v. Stark County County Bd. Of County Com’rs, 841 NW2d 416 (ND Dec 19,2013), involved an application for a rezoning combined with a subdivision plat. Because the rezoning was denied, the applicant sued the county making a number of allegations, including arbitrary and capricious action, conflict of interest, and an erroneous ruling precluding admission of additional testimony. Similar arguments are seen in many land use cases.

The interesting thing to me about this case was that the County after denying the application, also decided that it did not want to hear from the applicant regarding this particular property for at least another six months, and included language to that effect in denying the application. The North Dakota Supreme Court found nothing untoward about this ruling.

There are a number of local boards and commissions here in middle Tennessee which have rules precluding the submission of the same or a substantially similar application for a period of sometimes 6, sometimes 12 months once the original application has been denied. Many years ago, I wrote in a similar provision for the Metro Board of Zoning Appeals, in an effort to stop serial applications for the same or substantially similar relief. At the time, the board had several applications where the same applicant would attempt to get back on the agenda nearly every month by making some minor change in the proposed application. Obviously, this slows down the ability of the board to handle the cases coming before it, and is a total waste of time from the board’s perspective since having denied it originally, minor changes in the proposal are unlikely to warrant reconsideration.

I have not seen those rules challenged either here in Tennessee, or elsewhere. And of course, this case is somewhat different: the North Dakota ruling did not have to do with a standing rule but was specifically implemented in this particular instance because the applicant had been to the County board for 3 months in a row and the board was simply tired of hearing the application, especially given the fact that several requests for additional information had been made but not complied with by the developer.

In any event, the North Dakota Supreme Court upheld the six-month ban.

The decision to implement a six-month appearance restriction was also not arbitrary, capricious, or unreasonable. In making its decision, the County Board noted that Dahm had presented the Duck Creek Estates project three months in a row without adequately resolving the issues of roads, sewage, water, and population density. As the district court reasoned, "the time and effort expended by the Stark County Zoning Board, the City and County Planner, and by the Stark County Commission persuades the Court that there was no violation of Stark County's authority and obligation to regulate land use . . . by their decision to impose the six month prohibition." Here, given the repeated attempts to re-zone and the failure to make the requisite adjustments, it was not unreasonable for the County Board to implement a six-month wait period.

Certainly, the North Dakota Court relied on the specific facts in this case, which would not be present given the text of the 6 month rules here in Tennessee. But I tend to think that our courts would react similarly: that the applicant had received a hearing and lost, and could reapply 6 months later and that as a result, the rule precluding submission of the same or a similar request within that timeframe was not arbitrary and capricious or violative of the applicant’s rights in any way. These rules seem to make good sense, and they don’t preclude the applicant from ever coming back, they just delay the return for a rather short period of time.