2016 North Dakota Century Code Title 11 Counties Chapter 11-33 County Zoning
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CHAPTER 11-33
COUNTY ZONING
11-33-01. County power to regulate property.
For the purpose of promoting health, safety, morals, public convenience, general prosperity,
and public welfare, the board of county commissioners of any county may regulate and restrict
within the county, subject to section 11-33-20 and chapter 54-21.3, the location and the use of
buildings and structures and the use, condition of use, or occupancy of lands for residence,
recreation, and other purposes. The board of county commissioners and a county zoning
commission shall state the grounds upon which any request for a zoning amendment or
variance is approved or disapproved, and written findings upon which the decision is based
must be included within the records of the board or commission. The board of county
commissioners shall establish zoning requirements for solid waste disposal and incineration
facilities before July 1, 1994. The board of county commissioners may impose tipping or other
fees on solid waste management and incineration facilities. The board of county commissioners
may not impose any fee under this section on an energy conversion facility or coal mining
operation that disposes of its waste onsite. The board of county commissioners may establish
institutional controls that address environmental concerns with the state department of health as
provided in section 23-20.3-03.1.
11-33-02. Board of county commissioners to designate districts - Uniformity.
For any or all of the purposes designated in section 11-33-01, the board of county
commissioners may divide by resolution all or any parts of the county, subject to sections
11-33-02.1 and 11-33-20, into districts of such number, shape, and area as may be determined
necessary, and likewise may enact suitable regulations to carry out the purposes of this chapter.
These regulations must be uniform in each district, but the regulations in one district may differ
from those in other districts.
11-33-02.1. Farming and ranching regulations - Requirements - Limitations Definitions.
1. For purposes of this section:
a. "Concentrated feeding operation" means any livestock feeding, handling, or
holding operation, or feed yard, where animals are concentrated in an area that is
not normally used for pasture or for growing crops and in which animal wastes
may accumulate. The term does not include normal wintering operations for
cattle.
b. "Farming or ranching" means cultivating land for the production of agricultural
crops or livestock, or raising, feeding, or producing livestock, poultry, milk, or fruit.
The term does not include:
(1) The production of timber or forest products; or
(2) The provision of grain harvesting or other farm services by a processor or
distributor of farm products or supplies in accordance with the terms of a
contract.
c. "Livestock" includes beef cattle, dairy cattle, sheep, swine, poultry, horses, bison,
elk, fur animals raised for their pelts, and any other animals that are raised, fed,
or produced as a part of farming or ranching activities.
d. "Location" means the setback distance between a structure, fence, or other
boundary enclosing a concentrated feeding operation, including its animal waste
collection system, and the nearest occupied residence, the nearest buildings
used for nonfarm or nonranch purposes, or the nearest land zoned for residential,
recreational, or commercial purposes. The term does not include the setback
distance for the application of manure or for the application of other recycled
agricultural material under a nutrient management plan approved by the
department of health.
2. For purposes of this section, animal units are determined as follows:
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a.
b.
3.
4.
5.
6.
7.
8.
One mature dairy cow, whether milking or dry, equals 1.33 animal units;
One dairy cow, heifer, or bull, other than an animal described in paragraph 1
equals 1.0 animal unit;
c. One weaned beef animal, whether a calf, heifer, steer, or bull, equals 0.75 animal
unit;
d. One cow-calf pair equals 1.0 animal unit;
e. One swine weighing fifty-five pounds [24.948 kilograms] or more equals 0.4
animal unit;
f. One swine weighing less than fifty-five pounds [24.948 kilograms] equals 0.1
animal unit;
g. One horse equals 2.0 animal units;
h. One sheep or lamb equals 0.1 animal unit;
i. One turkey equals 0.0182 animal unit;
j. One chicken, other than a laying hen, equals 0.008 animal unit;
k. One laying hen equals 0.012 animal unit;
l. One duck equals 0.033 animal unit; and
m. Any livestock not listed in subdivisions a through l equals 1.0 animal unit per each
one thousand pounds [453.59 kilograms] whether single or combined animal
weight.
A board of county commissioners may not prohibit or prevent the use of land or
buildings for farming or ranching and may not prohibit or prevent any of the normal
incidents of farming or ranching.
A board of county commissioners may not preclude the development of a concentrated
feeding operation in the county.
A board of county commissioners may not prohibit the reasonable diversification or
expansion of a farming or ranching operation.
A board of county commissioners may adopt regulations that establish different
standards for the location of concentrated feeding operations based on the size of the
operation and the species and type being fed.
If a regulation would impose a substantial economic burden on a concentrated feeding
operation in existence before the effective date of the regulation, the board of county
commissioners shall declare that the regulation is ineffective with respect to any
concentrated feeding operation in existence before the effective date of the regulation.
a. A board of county commissioners may establish high-density agricultural
production districts in which setback distances for concentrated feeding
operations and related agricultural operations are less than those in other
districts.
b. A board of county commissioners may establish, around areas zoned for
residential, recreational, or nonagricultural commercial uses, low-density
agricultural production districts in which setback distances for concentrated
feeding operations and related agricultural operations are greater than those in
other districts; provided, the low-density agricultural production districts may not
extend more than one and one-half miles [2.40 kilometers] from the edge of the
area zoned for residential, recreational, or nonagricultural commercial uses.
c. The setbacks provided for in this subsection may not vary by more than fifty
percent from those established in subdivision a of subsection 7 of section
23-25-11.
d. For purposes of this subsection, a "related agricultural operation" means a facility
that produces a product or byproduct used by a concentrated feeding operation.
11-33-03. Object of regulations.
These regulations shall be made in accordance with a comprehensive plan and designed
for any or all of the following purposes:
1. To protect and guide the development of nonurban areas.
2. To provide for emergency management. "Emergency management" means a
comprehensive integrated system at all levels of government and in the private sector
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which provides for the development and maintenance of an effective capability to
mitigate, prepare for, respond to, and recover from known and unforeseen hazards or
situations, caused by an act of nature or man, which may threaten, injure, damage, or
destroy lives, property, or our environment.
3. To regulate and restrict the erection, construction, reconstruction, alteration, repair, or
use of buildings and structures, the height, number of stories, and size of buildings and
structures, the percentage of lot that may be occupied, the size of courts, yards, and
other open spaces, the density of population, and the location and use of buildings,
structures, and land for trade, industry, residence, or other purposes.
4. To lessen governmental expenditures.
5. To conserve and develop natural resources.
These regulations shall be made with a reasonable consideration, among other things, to the
character of the district and its peculiar suitability for particular uses. The comprehensive plan
shall be a statement in documented text setting forth explicit goals, objectives, policies, and
standards of the jurisdiction to guide public and private development within its control.
11-33-04. County planning commissions authorized - Membership.
The board of county commissioners of any county desiring to avail itself of the powers
conferred by this chapter shall establish, by resolution, a county planning commission to
recommend the boundaries of the various county zoning districts and appropriate regulations
and restrictions to be established therein. In counties with three-member boards of county
commissioners, the planning commission consists of seven members, of whom at least one
must be appointed from the governing body of the city that is the county seat, and of whom at
most one may be appointed from the board of county commissioners. In counties with
five-member boards of county commissioners the planning commission consists of nine
members, of whom at least two must be appointed from the governing body of the city that is
the county seat, and of whom at most two may be appointed from the board of county
commissioners. The term of an ex officio member is coterminous with the member's term in the
underlying office. The remaining members shall be appointed from the county at large. In
counties that elect county commissioners from districts, at least one at large member of the
planning commission must be appointed from each district. When appointments to said
commission are first made, three members at large shall be appointed for a two-year term and
two members at large for a four-year term, after which all subsequent appointments for
members at large shall be for a four-year term. Appointments to fill vacancies shall be for the
unexpired portion of the term. All appointments to the county planning commission shall be
made by the board of county commissioners.
11-33-05. Meetings - Officers.
The commission shall meet within thirty days after its appointment and elect a chairman and
other necessary officers from its membership. The commission may adopt rules and bylaws not
inconsistent with the provisions of this chapter. A majority of the members of the commission
constitutes a quorum. The appointing authority shall establish the rate of compensation for
commissioners and actual expenses incurred by commissioners may be reimbursed at the
official reimbursement rates of the appointing authority. The county auditor shall serve as
secretary to the commission and shall keep all of the records and accounts of the commission.
11-33-06. Investigations.
The county planning commission in conjunction with the township boards of the affected
areas shall investigate and determine the necessity of establishing districts and prescribing
regulations therefor, as herein provided; and, for that purpose, shall consult with residents of
affected areas, and with federal, state, and other agencies concerned. State, county, township,
and city officials, departments, or agencies are hereby required to make available, upon request
of the county planning commission, such pertinent information as they may possess, to render
technical assistance, and to cooperate in assembling and compiling pertinent information.
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11-33-07. County planning commission to prepare plan.
After investigation, as herein provided, the county planning commission shall prepare a
proposed resolution to be submitted to the board of county commissioners establishing districts
and prescribing regulations therefor, as herein provided, which shall be filed in the office of the
county auditor.
11-33-08. Hearings.
After the filing of the proposed resolution, the county planning commission shall hold a
public hearing thereon, at which the proposed resolution shall be submitted for discussion, and
parties in interest and citizens shall have an opportunity to be heard. Notice of the time, place,
and purpose of the hearing shall be published once each week for two consecutive weeks in the
official newspaper of the county, and in such other newspapers published in the county as the
county planning commission may deem necessary. Said notice shall describe the nature, scope,
and purpose of the proposed resolution, and shall state the times at which it will be available to
the public for inspection and copying at the office of the county auditor.
11-33-09. Publication of resolutions - Effective date.
Following the public hearing, the board of county commissioners may adopt the proposed
resolutions or any amendments thereto, with such changes as it may deem advisable. Upon
adoption of any resolution or any amendment thereto, the county auditor shall file a certified
copy thereof with the recorder. Immediately after the adoption of any such resolution or any
amendment thereto, the county auditor shall cause notice of the same to be published for two
successive weeks in the official newspaper of the county and in such other newspapers
published in the county as the board of county commissioners may deem necessary. Said
notice shall describe the nature, scope, and purpose of the adopted resolution, and shall state
the times at which it will be available to the public for inspection and copying at the office of the
recorder. Proof of such publication shall be filed in the office of the county auditor. If no petition
for a separate hearing is filed pursuant to section 11-33-10, the resolution or amendment thereto
shall take effect upon the expiration of the time for filing said petition. If a petition for a separate
hearing is filed pursuant to section 11-33-10, the resolution shall not take effect until the board of
county commissioners has affirmed such resolution or amendment in accordance with the
procedures of section 11-33-10. Any such resolution may, from time to time, be amended or
repealed by the board of county commissioners upon like proceedings as in case of the
adoption of a resolution.
11-33-10. Separate hearings.
Any person aggrieved by any provision of a resolution adopted hereunder, or any
amendment thereto may, within thirty days after the first publication of such resolution or
amendment, petition for a separate hearing thereon before the board of county commissioners.
The petition shall be in writing and shall specify in detail the ground of the objections. The
petition shall be filed with the county auditor. A hearing thereon shall be held by the board no
sooner than seven days, nor later than thirty days after the filing of the petition with the county
auditor, who shall notify the petitioner of the time and place of the hearing. At this hearing, the
board of county commissioners shall consider the matter complained of and shall notify the
petitioner, by registered or certified mail, what action, if any, it proposes to take thereon. The
board of county commissioners, at its next regular meeting, shall either rescind or affirm such
resolution or amendment. The provisions of this section shall not operate to curtail or exclude
the exercise of any other rights or powers of the board of county commissioners or any citizen.
11-33-11. May adjust enforcement.
The board of county commissioners is authorized to adjust the application or enforcement of
any provision of a resolution hereunder in any specific case when a literal enforcement of such
provision would result in great practical difficulties, unnecessary hardship, or injustice, so as to
avoid such consequences, provided such action shall not be contrary to the public interest or
the general purposes hereof.
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11-33-12. Appeals to district court.
Any person, or persons, jointly or severally, aggrieved by a decision of the board of county
commissioners under this chapter, may appeal to the district court in the manner provided in
section 28-34-01.
11-33-13. Not to affect use.
The lawful use or occupation of land or premises existing at the time of the adoption of a
resolution hereunder may be continued, although such use or occupation does not conform to
the provisions thereof, but if such nonconforming use or occupancy is discontinued for a period
of more than two years, any subsequent use or occupancy of the land or premises shall be a
conforming use or occupancy. If the state acquires title to any land or premises, all further use
or occupancy thereof shall be a conforming use or occupancy.
11-33-14. Nonconforming uses regulated.
The board of county commissioners, may, by resolutions, as herein provided, prescribe
such reasonable regulations, not contrary to law, as it deems desirable or necessary to regulate
and control nonconforming uses and occupancies.
11-33-15. Board of county commissioners to make complete list.
Repealed by S.L. 1969, ch. 138, § 2.
11-33-16. Enforcement.
The board of county commissioners shall provide for the enforcement of this chapter and of
resolutions and regulations made thereunder and may impose enforcement duties on any
officer, department, agency, or employee of the county.
11-33-17. Violation of zoning regulations and restrictions - Remedies.
If any building or structure is erected, constructed, reconstructed, altered, repaired,
converted, or maintained, or if any building, structure, or land is used in violation of this chapter,
the proper county authorities or any affected citizen or property owner, in addition to other
remedies, may institute any appropriate action or proceedings:
1. To prevent such unlawful erection, construction, reconstruction, alteration, repair,
conversion, maintenance, or use.
2. To restrain, correct, or abate such violations.
3. To prevent the occupancy of the building, structure, or land.
4. To prevent any illegal act, conduct, business, or use in or about such premises.
11-33-18. Power of board of county commissioners to issue permits - Notification of
director of the department of transportation - Power of board to appropriate money.
1. The board of county commissioners may authorize and provide for the issuance of
permits as a prerequisite to construction, erection, reconstruction, alteration, repair, or
enlargement of any building or structure otherwise subject to this chapter.
2. If a board of county commissioners provides for the issuance of permits, the board
shall require the applicant to state whether the structure is reasonably anticipated to
have a significant impact on the transportation system. A structure is deemed to have
significant impact on the transportation system if, over a period of one year, it will have
an average daily usage of at least twenty-five motor vehicles whose gross weight
exceeds sixty thousand pounds [27215.54 kilograms]. The board shall require that, if
the structure will have a significant impact on the transportation system, the director of
the department of transportation be notified and be given an opportunity to comment
on the application. However, approval of the director of the department of
transportation of the proposed structure is not required.
3. The board may establish and collect reasonable fees for permits issued under this
section. The fees so collected must be credited to the general fund of the county.
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4.
The board of county commissioners may appropriate, out of the general funds of the
county, such moneys as may be necessary for the purposes of this chapter.
11-33-19. Joint planning commission may be established.
If the area to be regulated and restricted is situated in two or more counties, a joint planning
commission may be established. Membership of such a joint planning commission shall consist
of five members from each county planning commission to be appointed by the chairman of the
respective county planning commissions. Each joint commission shall make a preliminary report
and hold public hearings thereon as is provided in the case of county planning commissions
before submitting its final report and recommendations to the respective county planning
commissions of each county concerned.
11-33-20. Township zoning not affected - Township and city may relinquish powers Joint zoning authority over solid waste disposal facilities.
Repealed by S.L. 2015, ch. 422, § 2.
11-33-21. General penalties for violation of zoning regulations and restrictions.
A violation of any provision of this chapter or the regulations and restrictions made
thereunder shall constitute the maintenance of a public nuisance and shall be a class B
misdemeanor.
11-33-22. Regulation of concentrated animal feeding operations - Central repository.
1. Any zoning regulation that pertains to a concentrated animal feeding operation and
which is promulgated by a county after July 31, 2007, is not effective until filed with the
state department of health for inclusion in the central repository established under
section 23-01-30. Any zoning regulation that pertains to concentrated animal feeding
operations and which was promulgated by a county before August 1, 2007, may not be
enforced until the regulation is filed with the state department of health for inclusion in
the central repository.
2. For purposes of this section:
a. "Concentrated animal feeding operation" means any livestock feeding, handling,
or holding operation, or feed yard, where animals are concentrated in an area
that is not normally used for pasture or for growing crops and in which animal
wastes may accumulate, or in an area where the space per animal unit is less
than six hundred square feet [55.74 square meters]. The term does not include
normal wintering operations for cattle.
b. "Livestock" includes beef cattle, dairy cattle, sheep, swine, poultry, horses, and
fur animals raised for their pelts.
11-33-23. Highways - Roads.
This chapter does not include any power relating to the role of the board of county
commissioners in the establishment, repair, or maintenance of highways or roads.
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