Opposition sinks right-of-way policy at planning commission

Jill Schramm/MDN Leo Bruins speaks to the Ward County Planning Commission on the right-of-way issue Thursday. Some of the commissioners, shown from left, are Michael Carswell, Kenton Kossan, Shelly Weppler and Chairman Wayne Tuttle.

Opponents described a Ward County policy on donated road right of way as extortion and theft in arguing to scrap that section of county zoning ordinance Thursday.

The Ward County Planning Commission found enough strength in the arguments of a roomful of rural residents to vote 8-1 to recommend the county commission remove the ordinance language. The ordinance change will need to be advertised and a date selected for a public hearing. An ordinance requires two readings by the county commission.

The lone vote against the change on the planning commission came from Ward County Commissioner Shelly Weppler, who became the target for some of the hostility toward the policy.

Weppler said she could support a change in the policy.

“I think it’s gone too far,” she said. “I agree with you on some of the issues.”

She indicated a willingness to revise the ordinance to exclude situations in which development isn’t likely to occur, such as outlots to build a home or get a loan.

“I do not agree with going backward to what was done in 1961, the first change that we made,” she said. “This is being asked carte blanche to change absolutely the whole right-of-way rules for our county, and I don’t agree that that’s right for our county. And I know you don’t agree with me. I respect what you say.”

The policy states that when landowners create plats of 40 acres or fewer, they must dedicate and donate 75 feet of right of way for county roads and 40 feet for township roads. By law, a statutory easement of 33 feet exists from the center of township and county roads, but easements differ from dedications in that the landowner retains ownership. With the dedication, the landowner donates the 33 feet plus the additional footage and no longer owns the land.

The Ward County Farm Bureau, Ward County Farmers Union and Northwest Landowners Association lined up to oppose the policy, as did several landowners.

“It’s simple and plain theft of property by the county,” said Leo Bruins, Minot.

“Anyone who divides land less than 40 acres, the county seems to believe it’s right to come and steal 75 feet off the front of their property,” he said. “If and when they somehow need more road, they will buy it from larger landowners at the current market value. How can anyone justify stealing land from a small landowner and buying it from a larger landowner adjacent to him?”

“There’s no reason to take somebody’s land when there’s nothing planned,” said Jim Lee of Max, a former county commissioner. “It’s nothing more than extortion.”

To support the extortion argument, opponents noted two cases that came before the planning commission prior to the hearing on the policy change. In both cases, the landowners pulled their requests for variances to the policy to avoid the potential of having their plats denied by the planning commission or later by the county commission.

“This is a constitutional issue,” said Tom Hallamyer, Minot. “The fact that this has been going on is shameful. The fact that it has support to continue is a disgrace.”

John Pietsch, Minot, who had unsuccessfully requested a variance to the policy in a plat application to the county commission this week, spoke for the ordinance change.

“I maybe did get a bloody nose at the county commission meeting last Tuesday, but I will let you this, hell will freeze over before you wind up with my property,” he said.

“This present practice of taking makes the county the greedy party and creates unfairness in the way roads are funded,” he said. “For all intents and purposes, the road belongs to the public and should be financed that way and not by fooling people into thinking it’s their road and having them give up land to accommodate that.”

Weppler cited the history of the policy creating a right-of-way requirement on plats.

“Never in my imagination did I feel that I would have to rule on something that Commissioner Lee voted in back in 1996, and it says at that time they didn’t do anything with frontage roads and with subdivision roads, but they certainly did do the county roads and farm-to-market roads,” she said.

In 2010, the commission voted to move the frontage roads and rural subdivision roads to 80 feet of right of way. John Fjeldahl was among commissioners voting for the change at that time, said Weppler, who reviewed tapes of those meetings.

Fjeldahl and Lee both spoke to say their votes were a mistake, or at least an ignorance of the consequences. Fjeldahl added that after listening to the 2010 meeting tape, he believes the policy was portrayed as affecting only the Minot two-mile extra-territorial area.

Any future policy change by Ward County would not affect Minot’s zoning and right-of-way rules, which will continue to apply in the extra-territorial area. Elimination of the right-of-way donation also would still leave in place the 33-foot easement.