The Burleigh County Commission's decision to grant appeals of county planning commission recommendations may lead to a revision of the county's comprehensive plan and, depending on the planning commission's reaction, an unprecedented legal decision by the state's attorney.

The planning commission recommended denial of two proposed plats for Midwest Country Estates and Sundown Acres 2nd subdivisions at Monday's meeting. In both cases, the planners said they were following the county's comprehensive plan, which discourages subdivision of land "that is far in advance of needs of the county" and "which cannot be efficiently served by fire and police protection and other services."

But while the commission affirmed the appeals, the vote did not have the effect the commission was looking for - approval of the plats ;- but created a complex and confusing situation that potentially will need a state's attorney's opinion.

In recommending denial of the plats, the planning commission did not hold a public hearing and was not required to. But in recommending approval of plats, a public hearing is required. With the county commission having granted the appeals, the planning commission must now decide whether to hold the hearings or reaffirm their recommendation to deny the plats, planning commission Chairman Chuck Peterson said.

"I suspect, out of courtesy to the commission, we will decide to hold a public hearing," Peterson said. "But if the commission stays with its decision to deny the plats, it's quite likely this will end up in the state's attorney's office for an opinion."

Planning Director Carl Hokenstad isn't sure what will happen next because this has never happened before, to his recollection. Next Wednesday, the planning commission meets and will determine whether to hold a hearing. If a hearing is called, it likely will be held Sept. 14.

"We're in unknown territory,"Hokenstad said. "The planning commission denied the plats using precedents set in three similar cases. They followed the county's comprehensive plan and the language in the county zoning ordinance."

If the planning commission holds the hearings, it will again be left with the decision to recommend either approval or denial of the plats. Hokenstad said the plats cannot be recorded without the signature of the planning commission chairman. The decision on whether to sign off on the plats is in the hands of the members of the planning commission, and he will respect their wishes, Peterson said.

Peterson said the planning commission has been "pristine" in its following of the comprehensive plan. "We have to treat everybody exactly the same," Peterson said. "If we change how we do things now, how will it affect those we dealt with previously? Obviously, they'll be hurt. It should be an affront to them."

Peterson worries that, should county commissioners continue to overrule the planning commission, there's little reason to have a planning commission.

"It wouldn't be much of a job if we can be reversed at any time,"Peterson said. "It's important to look at the future. Potential growth seems to be great. Are we going to be a county of rules and plan for the future, or let everyone do as they want? Fire protection, rural water and road maintenance all have to be considered. What's best for the county? The common good is the overarching issue the county commission must deal with. Is it better to have these subdivisions spread out all over, or keep them closer together so services can more easily be provided?"

Should the planning commission hold a hearing, they will again be left with a decision to either recommend approval or denial of the plats. If the planners reverse themselves, the county commission likely will have to hold another vote on the issue. If the planning commission stays with its recommendation and the chairman refuses to sign the plats, the state's attorney likely will have to be involved.

There are some circumstances related to the subdivisions' requests that lean toward their approval. Midwest Country Estates lies within Ecklund Township, which has retained its zoning authority. While Ecklund supports the plat, it does not have subdivision authority; only the county does. Sundowners 2nd is an extension of an existing subdivision, created before the comprehensive plan was written.

County commission Chairman Jerry Woodcox cast the deciding vote on the appeal, pointing to the importance of property rights. "If I own land and I want to subdivide it and do all the proper things, I'd be offended by the taking of my property rights,"he said. "That's why Ihave a hard time turning down any plats. Sundown is already next to an existing subdivision, and Midwest has the approval of the township."

Commissioner Doug Schonert, who works in real estate, also defended the creation of the subdivisions, saying there is a need for rural lots and bigger lots. He admitted he did see the logic in keeping development close to the city, but also feels subdivisions that are spread out are less likely to be heavily impacted by natural disasters. "Such as the hail storm we recently had. If residences are spread out over a bigger area, we'll see less losses."

Planning commission member Gary Maher said the recommendation to deny the plats was "a very tough decision."

"But I think we made a good decision. There's a lot of problems with subdivisions out there, including the costs of providing services and infrastructure,"Maher said. There's also a conflict with the farming and ranching operations. The chemicals used by producers are hazardous. And there are also the cattle to consider and the difficulties of having homes nearby."

Commissioners Marlan Haakenson and Claus Lembke felt it is perhaps time the comprehensive plan is revisited and revised.

"Apparently we're out of date with the comprehensive plan,"Lembke said. Haakenson asked that the plan be redone.

If the plan is to be revised, the first time since it was created, it likely will have to be done by the planning commission, Hokenstad and Peterson said. It will be a lot of work and take quite a bit of time and resources, Peterson added.

(Reach reporter Gordon Weixel at 250-8255 or gordon.weixel@;bismarcktribune.com.)