Summary of a Recent
Judicial Development in
Urbanization & Agriculture

Safety Concerns Prohibit Residential Development
of Land Near a Firing Range

Walt McCarter
National AgLaw Center Research Associate

Summary of Decision

In Gowan v. Ward County Commission, 764 N.W.2d 425 (N.D. 2009), the Supreme Court of North Dakota held that a county commission had provided a sufficiently rational basis for denying a landowner's rezoning request for the purpose of residentially developing land near a firing range, citing various safety concerns and public policy considerations.

Background

A landowner requested a change of zoning of his land from agricultural to residential in order to support his plans for development. Id. at 426. The county planning commission denied his request due to safety concerns; the land was near a law enforcement and public firing range, so the safety of the residents would have been at risk. Id. There was also concern that residential development would hamper the recreational activities and harm wildlife, and that the firing range would ultimately have to be closed due to the development. Id. The county commission affirmed the denial of his request, as did the district court, and the landowner appealed to the Supreme Court of North Dakota. Id. at 426-27.

Arguments

The landowner argued that the county's decision was arbitrary and capricious because: others had been allowed to build residences in the area; he offered to create a buffer between the shooting area and the development and use covenants to notify purchasers of the firing range; the cost of moving the law enforcement firing range to another location would be offset by taxes generated by the development; if the area was unsafe for potential residents, it was also unsafe for travelers on a county road that ran through the area; and any safety issues were created by people other than himself. Id. at 429.

Analysis and Holdings

The court observed that the commission had prepared extensive and detailed findings explaining its reasons for denying the rezoning request, in which it identified several legitimate safety issues and cited to specific incidents supporting its concerns. Id. at 427-29. The court found that the landowner's arguments that had merit did not outweigh the countervailing considerations, noting that no one currently lived downrange from the firing range and that a buffer would not alleviate concerns about hampered recreational activities, harm to wildlife, or noise caused by the firing range. Id. at 429. Also, the commission had not been convinced that the potential tax benefits would outweigh the cost of relocating the firing range and other negative aspects of residential development. Id. The court further reasoned that the fact that a county road ran through the area did not mean that the commission was obligated to place more people in danger by allowing the development. Id. The court concluded that so long as the commission's decision was rational, it would "not substitute its judgment for that of the local governing body," and therefore upheld the denial of the landowner's rezoning request. Id. at 429-30.

The case was decided on April 30, 2009.