Ward County commissioners have begun the process of amending a controversial road right-of-way donation policy and creating a new policy to return right of way that landowners had donated over more than two decades.

The policy decisions followed a testy discussion about past and present handling of the right-of-way issue, which eventually concluded with legal clarity offered by State’s Attorney Roza Larson.

Commission Chairman Jim Rostad said the board needs to arrive at a compromise that allows for good roads without creating a hardship for landowners.

“Let’s find a way to pay these landowners for whatever they’re sacrificing, but in the end, I want Ward County to have safe roads,” he said.

The right-of-way ordinance has been a matter of contention since 2016, when landowners began formally objecting. When the commission failed to change the ordinance, the Ward County Farm Bureau and Farmers Union coordinated a lawsuit in February 2018.

The ordinance requires landowners platting parcels of 40 acres or smaller to dedicate and donate 75 feet of right of way each side of the county road. Commissioners in 2019 amended the ordinance to remove most township roads, which had been subject to dedication of 40 feet on each side. 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.

A majority of commissioners voted last July to not enforce the existing ordinance rather than move to amend or eliminate it.

Questions surrounding the lawsuit and whether an ordinance can remain unenforced had commissioners at odds Tuesday.

Larson addressed both those issues. She explained the commission has authority to adjust enforcement in cases where literal enforcement would result in grave and practical difficulties, unnecessary hardship or injustice. However, she also advised changing the ordinance rather than continuing to avoid enforcement.

She said farm groups pursued the federal lawsuit under the due process clause because there was no avenue at the time to seek redress on the grounds of unconstitutional taking. That avenue later did open, and the federal judge indicated that while he must rule against the plaintiffs because the county followed due process, he would have decided differently had the case been filed as an unconstitutional taking.

“The federal district judge’s words should be heeded, in that the county needs to stop that practice,” Larson said. “I think it’s best to behoove everybody to amend our ordinances.”

Commissioner Howard “Bucky” Anderson said he doesn’t know how the commission can comply with an ordinance that a federal judge has said needs to go away. Eliminating the ordinance is the best way to end disputes over whether the county should follow it, he said.

Prior to Larson’s explanations, Commissioners Shelly Weppler and John Fjeldahl argued Tuesday, as they have in the past, over the need to change the ordinance. Weppler advocated for changing the ordinance rather than operating out of compliance, while Fjeldahl questioned the sense of urgency, particularly given Weppler’s initial support for the ordinance.

“I apologize for my frustrations,” Fjeldahl later said. “I’ve been at this a while and am totally frustrated by some of the irrational thoughts here. I’m glad to hear something refreshing today from our state’s attorney that says, ‘We can stop this if it’s a bad practice.’ It’s unfortunate it took a federal judge’s opinion to get here. We could have done this years ago.”

Fjeldahl moved to set up a committee of the commissioners to draft language to amend the right-of-way ordinance. The motion passed unanimously.

Doug Diedrichsen, the county’s planning and zoning administrator, had advocated for a change to ease the uncertainty he faces as the person tasked with administering the ordinances.

“I’m winging it here. We have an ordinance that says one thing and a motion that says another,” Diedrichsen said.

He noted he has no directive from commissioners for instances in which landowners choose to donate land despite the suspension of the policy because their federal financing requires compliance with the actual ordinance.

Commissioner John Pietsch proposed to implement a process to return properties taken under the ordinance. The Register of Deeds Office previously was alerted to look at its files and has been reviewing documents back to 1998. Kristin Kowalczyk, register of deeds, said she will need clarification on some matters to aid in the search, but her office does have steps in place to identify properties.

Commissioners Rostad and Weppler did not join Pietsch, Anderson and Fjeldahl in voting for the motion because of a desire to have more information about the process before agreeing to give land back.