Suit appeals South Heart zoning change

DICKINSON - The Stark County Commission’s approval of a rezoning request to allow for a coal mining operation for a proposed coal gasification plant near South Heart is going to court.

A notice of appeal was filed by Dickinson’s Dakota Resource Council organizer Cindy Klein on Tuesday afternoon in Southwest District Court at the Stark County Courthouse in Dickinson. The notice lists the DRC, along with Frank and Lucy Hurt, Neil and Laura Tangen and Gordon Krance as the parties named in the appeal against the Stark County Commission. The Hurts, Tangens and Krance are property owners adjacent to the proposed gasification plant site immediately southwest of South Heart.

A press release issued Tuesday by the DRC states the appeal is based upon the commission’s failure to fully consult Stark County’s Comprehensive Plan and that its decision to approve the rezoning request was arbitrary and capricious.

Klein said the organization and the property owners believe the process used by the county to approve the rezoning application from Great Northern Power Development LP was flawed.

“They didn’t follow the ordinance as it was written,” Klein said. “The application itself was one line.”

Klein said the organization also turned in a petition to the Stark County Zoning Commission asking for an environmental impact statement regarding the proposed gasification project.

“They didn’t act on our petition. They were the ones we believe who had the power to require an environmental impact,” Klein said.

The DRC continues to work with attorney Derrick Braaten of the Sarah Vogel Law Firm in Bismarck and he will handle the work associated with the appeal, Klein said.

Braaten said the county has a comprehensive plan for planning and zoning and decisions they make like zoning amendments should be in accordance with the plan.

“They didn’t even gather the information required to determine if it was in accordance with their comprehensive plan,” Braaten said. “There also are procedural problems that the court may or may not take issue with.”

He said in addressing a rezoning request for something like a mining operation, you have the county comprehensive plan which is the overall guiding document. You then have the county planning and zoning ordinance that provides the procedural structure and then you have state law.

“When you have something this large coming in you need to look at the impacts it could have,” Braaten said. “What the problem is, is the information gathered was very scant.”

During the process used by the county to approve the rezoning request, Braaten said he heard commissioners say over and over that they were not the experts, and that is why state officials are the ones to do perform more specific examination of the proposed land use.

“But that’s not true,” he said. “Think of it from a medical malpractice standpoint.”

Braaten said the jury hearing a medical malpractice lawsuit isn’t an expert, but it has experts testify before it so it can gather information needed to make a decision.

“The point we’re making is they had the power to ask for more information,” Braaten said. “That is especially the main refrain from the landowners.”

Braaten specifically referenced the county Planning and Zoning Ordinance Article III, Sec. 3.04 titled “Conditionally Permitted Use.” The final paragraph of that subsection states, “The applicant shall supply to the board of county commissioners any additional information or planning materials which the board feels are necessary to help arrive at a fair decision.”

Stark County Commissioner George Nodland chaired the Planning and Zoning Commission review of the rezoning request and said the commission addressed landowner concerns by applying conditions to its approval of the rezoning request. Those conditions are: 1. Great Northern must obtain all necessary state approvals, licenses and permits to operate the coal mine. 2. Great Northern agrees in writing to replace all water lost as a result of its mining operations. 3. Great Northern must build and maintain necessary access roads, which must be built to the satisfaction of the Stark County Commission. 4. Great Northern must work in concert with law enforcement and emergency responders to facilitate public safety.

“I feel there is no county commission in the state of North Dakota that has the staff and personnel to handle these types of applications,” Nodland said. “We have to rely on the expertise of the state water department and health department and the Public Service Commission.”

He believes the county is meeting the directives found in its comprehensive plan and planning and zoning ordinance by using the state agencies.

“That is what those agencies are for,” Nodland said. “By having the resolutions we did, we responded to that. I thought we did that pretty well. I think we addressed the things we needed to address.”

Braaten said without having a detailed process outlined regarding how the conditions are to be achieved, “you can have a great promise that’s not followed.”

Great Northern Power Development LP Vice-President Rich Voss was in Houston, Texas, when he was contacted late Tuesday afternoon about the lawsuit being filed against the county.

“What we’ll have to do is first take a hard look to see if there is any merit to it,” Voss said of the appeal. “Until we find that out, we don’t plan on stopping anything right now. We certainly need to take a look at the appeal and get opinions based on the merit and react accordingly I guess.”

Voss said they remain about a month away from filing their mining permit application with the state PSC, admitting it’s taking a little bit longer to get it done, but nothing major is slowing the process.

Stark County Commission Chairman Duane “Bucky” Wolf was not available for comment, nor was Stark County State’s Attorney Tom Henning.

Tags: suit, appeals, south, heart, zoning, change