EDITED & EXCERPTED TRANSCRIPT OF THE SYMPOSIUM ON THE LAW & ENERGY I. COUNTY ZONING AND LOCAL LAND USE REGULATIONS ............................................................................ 621 II. NORTH DAKOTA INDUSTRIAL COMMISSION UPDATE .... 642 III. CARBON CAPTURE AND SEQUESTRATION: PROJECT TUNDRA ....................................................................................... 650 IV. ENERGY DEVELOPMENT ON TRIBAL LANDS ..................... 660 V. OIL AND GAS TRANSPORTATION ISSUES ............................ 680 VI. MISSOURI RIVER AND LAKE SAKAKAWEA MINERAL OWNERSHIP ................................................................................. 690 VII. ENERGY INDUSTRY WORKFORCE DEVELOPMENT .......... 701 VIII. FUTURE OF THE NORTH DAKOTA ENERGY INDUSTRY .. 722 I. COUNTY ZONING AND LOCAL LAND USE REGULATIONS TREVOR HUNTER* Well, good morning. One of my kids was kind enough to share some sort of head cold with me, so I apologize in advance for the sound of my voice. I’m also not sure whose idea it was to set county zoning at 8:15 a.m., but I actually do find it to be a very interesting topic, it’s actually one of the most rewarding areas that I practice in, and I hope to share some of that with you, but I know not everybody might feel that way. So, what I want to focus on today is for the most part, my practice in this area is contained to the western counties of North Dakota and shrinking that a little further, mostly Mountrail, Williams, and McKenzie Counties. I want to try to make this a primer, if you will on zoning and land use regulations, and also talk about some trends that I’ve been seeing over the last several years, because this area really has *Trevor Hunter is an associate in the Oil and Gas Practice Group in the Williston office of Crowley Fleck PLLP. His practice focuses on commercial transactions and litigation. Trevor graduated with Bachelors of Arts in History and in Political Science from the Davidson Honors College at the University of Montana with University Scholar distinction. Trevor received his Juris Doctor from Southwestern Law School in Los Angeles, California. 622 NORTH DAKOTA LAW REVIEW [VOL. 94:3 changed over the last couple of years, and I hope you’ll join in my conclusion, at the end, that I think it’s changed for the better. So, with that, here’s a couple of topics that we’ll talk about today. So, the first thing I want to talk about is just general authority granted to counties for zoning. So, we’re going to talk about a couple state statutes. Secondly, general overview of land use planning processes and considerations that you want to think about if you’re practicing in this area. Third, enforcement of zoning violations, what powers to the counties, the townships, local govern- ing bodies have to enforce violations of the zoning ordinances. For the appli- cants themselves, what does the appeals process for an adverse zoning deci- sion look like? Talk about trends that I’ve seen in the last couple of years, and then conclude with some tips if you do practice in this area. So, I’ll do my lawyerly disclaimer right now, these are general comments about general concepts, so again, I practice in those three counties. I’m not necessarily going to highlight specific provisions, if you will, of the zoning ordinances in those counties. In some instances, I will, but this area really, really is county specific, and as we’ll talk about it, it even shrinks further, it can be dependent on city by city, township by township, so these are general concepts on the general areas, but we’ll talk about some specifics as we move through. So, general authority grants to counties for zoning. The authority for that comes from the legislature, and it set forth in century code 11-33-01. I’m trying to find the best way to read this. So, it’s pretty broad language. I mean, this is the directive from the legislature as to counties, granting them the abil- ity to adopt zoning ordinances, and the directive that the legislature has given counties is as follows that, “The county can adopt zoning ordinances for “the purpose of promoting health, safety, morals, public convenience, general pro- priety, and public welfare.” Well, those are pretty broad topics and that’s where the rub in zoning comes from, but that’s the general state statute which grants powers to the counties who adopt zoning ordinances, and then from that directive, counties adopt individual zoning ordinances that apply to their counties. So, this should be a statement of the obvious, but I want to talk a little bit about what’s the relationship between local laws, county laws, state laws, and federal laws. So, we know from this Mountrail County case that a local governing body cannot validly enact a zoning ordinance that contravenes fed- eral or state law. So, really, what that is, it’s a statement of what we call preemption. So, if there’s an explicit state statue or an explicit federal statute on something, it can’t be contravened by a zoning ordinance that would dif- ferent than that state ordinance. 2019] TRANSCRIPT OF THE SYMPOSIUM ON THE LAW & ENERGY 623 So, the best way to state this doctrine is that it’s that which is allowed by the general laws of the state cannot be prohibited by a local ordinance without an express grant on the part of the state. And I’ll take you through some ex- amples in a bit. There are several statutes where the state has expressly granted that power and that discretion to these counties. Local municipal ordinances are inferior in status and subordinate to the laws of the state; again, it’s a statement of the obvious, but it’s something to keep in mind. Just because there might be concurrent regulations from a state on one area and a county on another area, it doesn’t mean that the county can’t regulate that area. So, local laws can touch on areas addressed by state law, and courts have a duty to try to reconcile each and give effect of both to the extent possible. So, courts are consistently wrestling with this. They don’t like to use preemption of they don’t have to, but they have, in some instances, and we’ll talk about that. So, if there is a way to harmonize the two between state law and local laws, the courts will try and do that. One thing to keep in mind is, zoning ordinances, by and large, are always changing. So, these counties are adopting amendments to them, they’re adopting resolutions, so keep in mind that those amendments are only going to apply to projects put forth after the adoption of amendments, right? They don’t work in reverse. So, one area that I think is important to think about . well, I think this is just fascinating, McKenzie County didn’t have a zoning ordinance at all until March of 2013. Well, you can imagine what kind of development and how many projects went in to McKenzie County prior to March of 2013. So, to the county’s credit, they had a lot to deal with, and when they first adopted the zoning ordinance, they were trying to wrestle with themselves, “How do we apply this to these projects,” and there was so much development in their county that I am sympathetic to the struggles that they had, but trying to practice in this area, in McKenzie county right after that adoption was very, very tough. But again, I think you can understand the amount of activity that hap- pened in that county, with no zoning ordinance at all, created a mess for them, and over the last several years, they’ve really done pretty well and trying to tweak that to make it a little more industry friendly or at least a little bit more reasonable and balanced. So, again, zoning ordinances only apply looking forward, so in the case of McKenzie County or in the case of any project you might have where the zoning ordinance changes, it changes the use of the project that you’re look- ing at, is that use, is your project, in violation of the ordinance? And the short answer as a general concept is no. That’s called lawful nonconforming use. So, if you have some project on ag land . again, let’s look at the McKenzie County example. No zoning ordinance prior to March of 2013. So, if you 624 NORTH DAKOTA LAW REVIEW [VOL. 94:3 were to develop a project, let’s say on ag land and using for some type of oil storage facility, McKenzie County adopts its ordinance in March of 2013 that says, “No oil storage facilities on ag land.” Well, the owner of the project is not going to have to tear out that facility, it’s going to be considered a lawful nonconforming use, and that classification will continue until one of several circumstances is met. So, as a general comment, if the use changes, so if you try to add some- thing to that particular project, it will then need to be brought in conforming with the zoning ordinance. If it burns down or something happens, as a gen- eral rule of thumb, if it loses more than 50% of its footprint, it needs to be rebuilt. You’re not going to be able to rebuild it and still claim that noncon- forming use status, or if the physical footprint of this project expands, that’s going to remove that lawful nonconforming use status. It’s also called grand- fathering. So, it’s something to keep in mind.