Comments opposing House Bill 1554
February 5, 2009
Comments on extraterritorial zoning authority
Richard Hammond - Burleigh County resident
House Bill 1554 is very similar to Senate Bill 2027 which was produced by the Advisory Commission on Intergovernmental Relations (ACIR) as a result of extensive public hearings held over many months. These two bills have the same flaws. Extraterritorial zoning authority should be removed from the cities and any zoning done in the rural areas should be done only by the elected boards of the political subdivision that represent the voters of those rural areas.
The interim committee spent many hours, and days, holding public hearings only to ignore the concerns of the majority of the citizens, many of who took time from work and drove many miles to present their testimony. The testimony is in the committee's record. Problems with the cities application of their Extraterritorial zoning authority have been an issue with rural residents for the past 30+ years. We have yet to have the legislature seriously consider the matter.
The granting of extraterritorial zoning authority to the cities in the state was a bad idea. In the early 70's, the cities fought hard in three legislative sessions before they got their way. The legislature granted the power to zone beyond the city borders based only upon the theoretical projections of the cities and their lobbyists as to how well ETA would work. After giving this power and authority to the cities, the legislature has failed in its responsibility over the years to go back and review how this power was being applied in practice. Although rural residents have continually expressed disapproval over how the system works, or rather has not worked, over the past 30+ years, it has taken until the last legislative session for the legislature to even consider "studying" the subject. Over the years, when citizens would get an elected representative to even ask about problems with ETA, the representative would consult the cities planners and ask if there were any problems. The city representatives would always lie and say they had no problems in the rural area with ETA("nothing to see here") even though that was untrue. Even this last interim "study" was a failure. The ACIR would not consider the volume of testimony from citizens. The committee simply gravitated to the cities special interest lobbyists. Unfortunately, in considering testimony, the concerns of the citizens expressed at the many hearings were ignored and the private testimony made by the cities lobbyists and planners in the halls and cloak rooms, was given the most weight and credibility. This is not how a representative democracy is supposed to work. Extraterritorial zoning has not worked as the proponents had suggested. The legislature originally must have assumed that the cities would exercise their new authority in a reasonable manner, with restraint, and with due respect to the rural residents rights. That is not what happened. The cities have been heavy handed, arrogant, self serving, and dishonest in their use of this authority. Although the city lobbyists have testified how they work with the other local governmental units, that is untrue. Cities only "work with" the other entities when there is no disagreement as to what needs to be done. If there is any disagreement between the city and the county or townships, then the city will ignore the county or township and simply proceed in spite any local governmental entity's wishes.
The original laws allowing cities to control beyond their borders were written only for situations wherein there was unincorporated territory, which had no governing body at all, adjoining the city. This has never been the case here. The ETA scheme ignores the fact that there are viable, working, elected, county commission governmental bodies for every county in the state. Soon after the passage of ETA for the cities, Apple Creek Township made a court challenge to the law. The challenge failed because it was poorly prosecuted and flawed. The challenge was based on legislative intent rather than the real constitutional issues. I believe that a proper challenge based upon the constitutional issues would have succeeded and we would not be here today.
After ETA was authorized for the cities, there was a rash if incorporations of new cities within the state. This was happening because forming a new municipal corporation was the only way for rural citizens to protect themselves from the heavy-handed, unrestrained power of the cities. The legislature failed again. At the time, I tried to get the legislature to investigate the underlying problem as to why these new cities were seeking to incorporate. Rather than investigating why these new cities were being formed, the legislature just stopped any new cities from incorporating. When I brought this up at a previous hearing, the League of Cities representative told the committee that incorporations had not been stopped. This is untrue. Incorporations have been effectively stopped. North Dakota could not stop incorporations in the same manner as Minnesota did, because the North Dakota Constitution would not allow it. So in order to circumvent the State Constitution, the legislature made the cost and requirements to incorporate a new city prohibitive. Presently, in State law, even if a group were to meet all of the requirements for incorporation, the County Commission could arbitrarily deny the incorporation without cause (i.e. if they thought it was not in the best interests of all concerned). The answer is, yes, incorporations have been stopped within the state and the League of Cities representative will mislead you about that. There have been no new cities incorporated in the State since the last law on municipal incorporations was passed. The legislature failed in it's duty to investigate why these new cities were forming. They were forming because the legislature had given the cities an unreasonable degree of power over non-voting rural residents.
There is considerable language in 1554 addressing mediation before an administrative law judge. It is the legislatures' duty to clearly define both issues and intent so that citizens do not have to go to a court, or to a mediator, to determine what the legislature really meant. On one hand, the cost of mediation will be a burden to a citizen. On the other hand, the cities have tax money and little or no restraint on spending that money. This system places the citizen at a disadvantage.
Exhibit 1 is a list of citizen concerns that were expressed at the ACIR interim committee hearings and were never addressed by that committee. Keep this Exhibit in front of you when you evaluate this bill or any other bill dealing with ETA of cities, and ask if the bill addresses each and every one of these concerns listed. Bill 1554 does not.
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What is so frustrating to other rural citizens and me is the absolute refusal by our elected representatives, to acknowledge and consider the underlying issues behind this flawed scheme of giving cities ETA. The voting, or representational issue, is being raised time and again, yet, the legislature refuses to address the issue. The constitutional issue with Section 21 of Article 1, has never been acknowledged, let alone addressed by the legislature. I specifically asked the ACIR committee to get some kind of response, or advice, from their staff attorney on these matters. A staff attorney is there as a legal advisor, not just to take minutes. A clerk-typist could take minutes. No legal advice was forthcoming. The concept of granting power with no corresponding responsibility or accountability, no check or balance, or no citizen protections against the possible abuse of this power, is irresponsible. Again, no committee will even address these issues.
The cities have testified numerous times that they need this power and authority to plan roads and streets. Attached are a couple of exhibits that are examples of Bismarck's planning for roads and streets.
The first exhibit is a map showing where Divide Avenue intersects with North Bismarck Expressway near the I-94 Exit 161. Divide Avenue is the arterial street that runs east and west just north of the capitol. For some unexplained reason, Divide Avenue angles northeast around a couple of corners and intersects with Bismarck expressway several hundred feet south of I-94 Exit 161. Divide Avenue is a major arterial street and should have gone straight east to intersect with Bismarck expressway at the corner of Revere Drive. The present intersection of Divide Avenue and North Bismarck Expressway is so close to the entrance ramp of I-94 Exit 161 that traffic will back up through both lights at rush hour. This is not responsible traffic planning to have the intersection of a major arterial street come out this close to an interstate interchange. It is not proper street planning to have so many corners in a major arterial street. Divide Avenue should have been extended straight to Bismarck expressway at Revere drive. Remember that the City of Bismarck had a planning office when this was done.
The next exhibit shows the street planning around Bismarck's new Northern Plains Commerce Center. This is located in the Morrison Avenue area in southeast Bismarck, near the Wal-Mart store. The center includes an area of rail served industrial lots and a container shipping hub wherein trucks and freight trains will be able to exchange cargo loads. The BNSF train frequently blocks Yegen Road. The train will stop and wait for another train to pass. This can take much time, as schedules are not always followed. Trucks and cars frequently have to turn around and find an alternate route. In this case, the alternative route wherein Morrison Avenue intersects Burlington Drive is blocked. There is only a short section of Morrison Avenue that could easily be opened to allow traffic to use the overpass when Yegen road is blocked by a train. I believe that this road was blocked, in part, to spite the residents of the City of Lincoln and make it as difficult as possible to commute to Lincoln. It is no secret that the City of Bismarck was furious when Lincoln incorporated. How dare they obtain the same status and power as Bismarck? Incorporation was the only way the citizens of Lincoln could protect themselves from the ongoing tyranny of the City of Bismarck. For the City of Bismarck to plan and develop a major shipping hub and industrial area and then not plan for the roads to serve the industrial area is simply irresponsible.
In order to view the real world results of Bismarck's planning efforts, I challenge each of you to go downtown to Bismarck's inner city and look for a parking place. Then remember that Bismarck has had a planning office for over 30 years and this is all they have to show for it. Bismarck has shown that it is not capable of responsibly planning within the city. Why would anyone believe that the city is capable of doing responsible planning in the rural areas? The city has not earned the right to extend its unwelcome influence into the rural areas.
Again, I must question why is it so difficult for the majority in the legislature to understand that we have an existing, functioning county government. The citizens of all major cities have elected representation on their respective county commissions. Therefore, the city's interests are represented on the county commission. On the other hand, county residents are not represented on the city commission. This is not a complicated concept. Anyone who has taken an 8th grade Civics class or a high school Government class will understand this. There are no substantive qualification requirements for being elected to a city commission. There is no rational explanation for the theory that the city commission is capable of making responsible planning and zoning decisions and the county commission is not. The cities will never respect the rights of the non-voting rural residents. Cities will never be accountable unless they are required to do so.
The only excuse that I heard for the taking away the right to vote was the flimsy excuse that the State had the right to zone and that the legislature delegated that right to the cities. Who authorized the legislature to give away anybody's constitutional right to vote?
One of the issues repeatedly brought up by the cities lobbyists is the allegation that these rural residents are wearing out the roads and somehow taking advantage of the city and not paying their share of taxes. Every major city has some sort of Convention and Visitors Bureau. They consider it a great success if they can get tourists to stay for a few days and spend some money. They have estimates as to how many tourists will visit and how much each will spend. On the other hand, the cities resent the neighboring rural residents who spend most of their entire income in the closest city. Rural residents spend far more in the city than any tourist will. If rural residents would quit shopping in Bismarck, the economy would dry up.
As a citizen, I am concerned about the functioning of our democratic process and I simply do not know where to go from here. Our representative form of government is failing and there is little citizens can do to prevent that. Citizens will come and testify before this, and other, committees. Some witnesses have driven great distances to be here. After we testify and when this hearing ends, we will have to go home, or go to work. My observation and experience has been that after citizens leave, the paid, full time, special interest lobbyists, who in this case are the city planners and city officials, will begin their full time arm twisting in the hallways and cloak rooms. I feel very much at a disadvantage in this system. It is difficult for a citizen to compete on what is not a level playing field. I urge you to listen to the citizens. Also please recognize that simply because a city official is from a city with a population of 50,000, that does not automatically mean that he or she represents the wishes of all 50,000 people who live in that city. In my discussions with people from Bismarck, most city residents are not even aware of what the city is doing in the rural areas and most do not support it. Who anticipated that the City of Fargo would annex a strip of land 60 feet wide and 6 miles long just to control more rural area? You need to judge the character of these people by what they do and not by what they say. The State is entering the first phase in the decline of our short-lived democracy. When Ben Franklin was asked by one of the colonists what kind of a government they were getting, he replied: "A republic, if you can keep it." Well, North Dakota is not doing a very good job of keeping its democratic republic.
The cities were given a serious public trust by the legislature. The cities have mishandled this power and authority. The only responsible solution is to take away the extraterritorial zoning authority entirely. The cities abused their authority as much as possible when they only had 2 miles. The abuses only became worse when they extended their power to 4 miles. The solution is not to just decrease the control area to 2 miles. Please consider eliminating extraterritorial zoning authority of cities entirely.
Exhibit 1
Issues raised by citizens with respect to
Extraterritorial zoning authority
of the state's municipal corporations
1. Numerous citizens raised the representational issue wherein citizens have no input into the decisions made by the various cities. The denial of citizens' right to vote for the representatives on the governing body that controls their property is the most obvious and objectionable flaw in this scheme. The accountability to the voters is fundamental to a democracy. Without that accountability, there is no democracy.
2. Article 1, Section 21. of the North Dakota State Constitution reads;
"No special privileges or immunities shall ever be granted which may not be altered, revoked or repealed by the legislative assembly; nor shall any citizen or class of citizens be granted privileges or immunities which upon the same terms shall not be granted to all citizens."
In this case, voting is more than a "privilege". Voting is a constitutional right.
Why, or how did, the legislature give the cities special privileges to simply run roughshod over the rural residents and fail to provide the rural residents with any remedy or protection against the cities abuse of that power?
This section is a clarification of the Equal Protection Clause of the 14th amendment of the U.S. Constitution that prohibits states from denying any person within its jurisdiction the equal protection of the laws. I believe that the authors of our North Dakota State Constitution included this language because they believed that it was necessary to clarify and strengthen the 14th amendment rights in the U.S. Constitution.
3. Various county and township governmental subdivisions have lost substantial amounts of revenue to the cities.
4. The manner in which the power and authority has been used compared to what was proposed and expected when the legislation was first proposed. Cities will always engage in irresponsible, heavy handed tactics when they are accountable to no one.
5. The cities have accomplished a gradual mission creep, adding to their authority over the years. The initial authorization was for zoning and planning only. Over the years the cities authority went from control over zoning and planning only, to all ordinances. Cities would simply add other regulations to the Zoning and Planning section of their code of ordinances and increase their power in that manner.
"Democracy is two wolves and a lamb voting on what to have for lunch." -
-- Benjamin Franklin
"Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There never was a democracy yet that did not commit suicide" (1814).
--John Adams
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