Ward County commissioners took issue with the scheduling of a public hearing in refusing to take up an amended road right-of-way ordinance Tuesday.

There have been objections from commissioners to the existing right-of-way ordinance — enough that the board voted 3-2 in July to halt its enforcement. The ordinance requires landowners to donate right-of-way beyond the amount spelled out in state law when they plat property along a county road.

On Tuesday, the commission declined to open a public hearing as requested by Doug Diedrichsen, county planning and zoning administrator, as the next step in the process of changing the ordinance. The Ward County Planning Commission held a public hearing on the ordinance amendment last month. It recommended the county commission approve the new language, which eliminates the extra right-of-way dedication for plats of one or two lots.

Diedrichsen said the county is out of compliance with state law by not enforcing an ordinance on its books. An amendment making the ordinance workable would enable enforcement and bring the county back into compliance.

Commissioner John Pietsch protested that the planning commission’s public hearing had been scheduled by staff rather than by the planning commission, making it an unauthorized hearing.

“Wouldn’t it have been wise to bring it to the commission at the zoning meeting prior to that and say, ‘We’re out of compliance here. What should we do?’ and allow that board to make a decision by motion as to whether or not it wants to hold a public hearing?” Pietsch said.

“I can’t authorize a public meeting,” Diedrichsen responded. “I can schedule it, which is essentially a request. It’s opened by motion of the commission. You can choose to vote no to open.”

Diedrichsen noted the urgency of coming back into compliance with state law in deciding to schedule the hearing during a regular planning commission meeting.

Commission Chairman John Fjeldahl said it is not the purview of department heads to schedule hearings.

The county commission voted 2-3 against opening its own public hearing on the planning commission’s recommended ordinance because it had not been scheduled by the commission. Voting to open were Commissioners Shelly Weppler and Jim Rostad. Voting against were Fjeldahl, Pietsch and Howard “Bucky” Anderson.

Last July, Fjeldahl, Pietsch and Anderson voted to discontinue ordinance enforcement, while Weppler and Rostad voted against.

At that time, Ward County State’s Attorney Roza Larson told commissioners that declining to enforce the ordinance raises the risk of a lawsuit. She had asked for the ordinance to be changed as quickly as possible. Although she did not weigh in at Tuesday’s meeting, she said afterwards that her stance has not changed.

The planning commission has been in a lengthy process of rewriting the county zoning code. A change to the right-of-way ordinance will be among the revisions. Recently, the county commission had shown support for expediting matters by acting on that particular ordinance change separately, rather than waiting to finish the entire code revision. The public hearing and recommendation by the planning commission was the first step in that process.

Pietsch also is part of a Ward County Farm Bureau and Farmers Union lawsuit, filed in February 2018 against the county over the existing right-of-way requirement. A U.S. district judge upheld the county’s policy, determining it is constitutional but not necessarily a good idea. The county commission, minus Pietsch, met in executive session Tuesday to discuss the case as the matter remains alive in a filing before the North Dakota Supreme Court.