40-47-01.1. Extraterritorial zoning - Mediation - Determination by administrative law
judge - Definition.
1. a. A city may, by ordinance, extend the application of a city's zoning regulations to
any quarter quarter section of unincorporated territory if a majority of the quarter
quarter section is located within the following distance of the corporate limits of
the city:
(1) One mile [1.61 kilometers] if the city has a population of fewer than five
thousand. A city that has exercised its authority under this subdivision has
joint zoning and subdivision regulation jurisdiction from one-half mile [.80
kilometer] to one mile [1.61 kilometers] with the other political subdivision.
(2) Two miles [3.22 kilometers] if the city has a population of five thousand or
more, but fewer than twenty-five thousand. A city that has exercised its
authority under this subdivision has joint zoning and subdivision regulation
jurisdiction from one mile [1.61 kilometers] to two miles [3.22 kilometers]
with the other political subdivision.
(3) Four miles [6.44 kilometers] if the city has a population of twenty-five
thousand or more. A city that has exercised its authority under this
subdivision has joint zoning and subdivision regulation jurisdiction from two
miles [3.22 kilometers] to four miles [6.44 kilometers] with the other political
subdivision.
b. Any section or portion of a section of unincorporated territory within the area of
joint zoning and subdivision regulation jurisdiction in which a plat or site plan has
been presented before May 1, 2009, remains subject to the zoning designations
and the regulations in place on May 1, 2009, unless changed as allowed under
this section.
c. The extraterritorial zoning jurisdiction and authority to receive applications and
issue permits under this section may be changed by written agreement between
the city and the other political subdivision.
2. Joint jurisdiction is jurisdiction in which the other political subdivision has jurisdiction to
receive applications and issue permits and impose administrative fees for applications
and permits. In addition, under this jurisdiction the other political subdivision may
adopt, modify, and enforce any zoning designation or regulation and approve any
subdivision plat or regulation. For a decision to be final, the other political subdivision
shall give written notice to the city. The city may request negotiation as to any decision
made by the other political subdivision under the other political subdivision's
jurisdiction within thirty days of notice. If negotiation is not requested, the decision of
the other political subdivision is final. If the governing body of the other political
subdivision and the city do not come to an agreement as to the disputed zone or
subdivision regulation within thirty days of request for negotiation, the dispute must be
submitted to a committee for mediation. The committee must be comprised of one
member appointed by the governor and two members of the governing body of the
other political subdivision and two members of the governing body of the city. The
governor's appointee shall arrange and preside over the meeting and act as mediator
at the meeting. A meeting may be continued until the dispute has been resolved or
until the mediator determines that continued mediation is no longer worthwhile. If the
mediation committee is unable to resolve the dispute to the satisfaction of the
governing bodies, the dispute must be resolved by the board of county commissioners.
3. Notwithstanding subsection 2, in any section or portion of a section of unincorporated
territory in which there would otherwise be joint jurisdiction and in which a plat or site
plan has been presented before May 1, 2009, the city has jurisdiction to receive
applications and issue permits and impose administrative fees for applications and
permits relating to zoning and subdivision regulation. In addition, under this jurisdiction
the city may adopt, modify, and enforce any zoning designation or regulation and
approve any subdivision plat or regulation. For a decision of the city made after May 1,
2009, to be final, the city shall give written notice of the decision of the governing body
of the political subdivision that would otherwise have jurisdiction. The governing body
may request negotiation as to any decision made by the city under the city's
jurisdiction within thirty days of notice. If negotiation is not requested, the decision of
the city is final. If the city and governing body of the political subdivision that would
otherwise have jurisdiction do not come to an agreement as to the disputed zoning or
subdivision regulation within thirty days of the request for negotiation, the dispute must
be submitted to a committee for mediation. The committee must be comprised of one
member appointed by the governor and two members of the governing body of the
other political subdivision and two members of the governing body of the city. The
governor's appointee shall arrange and preside over the meeting and act as mediator
at the meeting. A meeting may be continued until the dispute has been resolved or
until the mediator determines that continued mediation is no longer worthwhile. If the
mediation committee is unable to resolve the dispute to the satisfaction of the
governing bodies, the dispute must be resolved by the board of county commissioners.
4. If a quarter quarter section line divides a platted lot and the majority of that platted lot
lies within the quarter quarter section, a city may apply its extraterritorial zoning
authority to the remainder of that platted lot. If the majority of the platted lot lies outside
the quarter quarter section, the city may not apply its extraterritorial zoning authority to
any of that platted lot.
5. A city exercising its extraterritorial zoning authority shall hold a zoning transition
meeting if the territory to be extraterritorially zoned is currently zoned. The city's zoning
or planning commission shall provide at least fourteen days' notice of the meeting to
the zoning board or boards of all political subdivisions losing their partial zoning
authority. The purpose of the zoning transition meeting is to review existing zoning
rules, regulations, and restrictions currently in place in the territory to be
extraterritorially zoned and to plan for an orderly transition. The zoning transition
meeting must take place before the city's adoption of an ordinance exercising
extraterritorial zoning.
6. If two or more cities have boundaries at a distance where there is an overlap of
extraterritorial zoning authority under this section, the governing bodies of the cities
may enter into an agreement regarding the extraterritorial zoning authority of each city.
The agreement must be for a specific term and is binding upon the cities unless the
governing bodies of the cities agree to amend or rescind the agreement or unless
determined otherwise by an administrative law judge in accordance with this chapter. If
a dispute arises concerning the extraterritorial zoning authority of a city and the
governing bodies of the cities involved fail to resolve the dispute, the dispute must be
submitted to a committee for mediation. The committee must be comprised of one
member appointed by the governor, one member of the governing body of each city,
and one member of the planning commission of each city who resides outside the
corporate city limits. The governor's appointee shall arrange and preside over the
meeting and act as mediator at the meeting. A meeting may be continued until the
dispute has been resolved or until the mediator determines that continued mediation is
no longer worthwhile.
7. If the mediation committee is unable to resolve the dispute to the satisfaction of the
governing bodies of all the cities involved, the governing body of any of the cities may
petition the office of administrative hearings to appoint an administrative law judge to
determine the extraterritorial zoning authority of the cities in the disputed area. A
hearing may not be held until after at least two weeks' written notice has been given to
the governing bodies of the cities involved in the dispute. At the hearing, the governor's
appointee who mediated the meetings under subsection 6 shall provide information to
the administrative law judge on the dispute between the cities involved and any
proposed resolutions or recommendations made by a majority of the committee
members. Any resident of, or person owning property in, a city involved in the dispute
or the unincorporated territory that is the subject of the proposed extraterritorial zoning,
a representative of such a resident or property owner, and any representative of a city
involved, may appear at the hearing and present evidence on any matter to be
determined by the administrative law judge. A decision by the administrative law judge
is binding upon all the cities involved in the dispute and remains effective until the
governing bodies of the cities agree to a change in the zoning authority of the cities.
The governing body of a city may request a review of a decision of an administrative
law judge due to changed circumstances at any time ten years after the decision has
become final. An administrative law judge shall consider the following factors in
making a decision under this subsection:
a. The proportional extraterritorial zoning authority of the cities involved in the
dispute;
b. The proximity of the land in dispute to the corporate limits of each city involved;
c. The proximity of the land in dispute to developed property in the cities involved;
d. Whether any of the cities has exercised extraterritorial zoning authority over the
disputed land;
e. Whether natural boundaries such as rivers, lakes, highways, or other physical
characteristics affecting the land are present;
f. The growth pattern of the cities involved in the dispute; and
g. Any other factor determined to be relevant by the administrative law judge.
8. For purposes of this section, the population of a city must be determined by the last
official regular or special federal census. If a city has incorporated after a census, the
population of the city must be determined by a census taken in accordance with
9. When a portion of the city is attached to the bulk of the city by a strip of land less than
one hundred feet [30.48 meters] wide, that portion and strip of land must be
disregarded when determining the extraterritorial zoning limits of the city. This
subsection does not affect the ability of a city to zone land within its city limits.
10. For the purposes of this section, a section or a quarter quarter section is as
determined in the manner provided by 2 Stat. 313 [43 U.S.C. 752]. When appropriate,
the phrase "quarter quarter section" refers to the equivalent government lot.
11. As used in this section, "other political subdivision" means a political subdivision, not
including another city, which would otherwise have zoning or subdivision regulation
jurisdiction.
