ZONING ORDINANCE FOR PORT EMMA TOWNSHIP DICKEY COUNTY, NORTH DAKOTA

ADOPTED - APRIL 1998 REVISED APRIL 2008

This zoning ordinance was prepared in April, 1998 by the Port Emma Township Board of Supervisors with assistance from Ada and Hudson Townships, Dickey County, North Dakota along with the staff of the South Central Dakota Regional Council through its local assistance program of planning services to local governments within the South Central Region of North Dakota. This zoning ordinance was revised in April, 2008 by the Port Emma Township Board of Supervisors to reflect current state and county rules and recommendations concerning animal feeding operations. Applicable portions of the North Dakota State Department of Healths Model Zoning Ordinance for Animal Feeding Operations have been incorporated into this zoning ordinance.

Port Emma Township Officials - 1998 Larry Thorpe - Chairman Marshall Visto - Supervisor Terry Anderson - Supervisor Tom Pahl - Treasurer Marty Visto - Clerk

Port Emma Township Officials - 2008 Larry Thorpe - Chairman Marshall Visto - Supervisor Terry Anderson - Supervisor Marty Visto - Clerk / Treasurer Jim Buro - Assessor

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ZONING ORDINANCE FOR PORT EMMA TOWNSHIP DICKEY COUNTY, NORTH DAKOTA
A. Authority This ordinance is adopted under the authority granted by Chapter 58-03-11 to 58-03-15 of North Dakota Century Code. B. Title This ordinance shall be known as the Zoning Ordinance of Port Emma Township, Dickey County, North Dakota. C. Purpose and Intent The purpose of this ordinance is to promote the public health, safety or general welfare; or to secure the orderly development of the township; or to protect the natural resources of the township. D. Severability If any paragraph, sentence, clause or phrase of this ordinance is for any reason held to be invalid or unconstitutional by a court of competent jurisdiction, such decision shall not affect the validity of the remaining portion of this ordinance. E. Effective Date This ordinance shall be effective after a public hearing and adoption by the Board of Supervisors of Port Emma Township.

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SECTION II GENERAL PROVISIONS

A. Jurisdiction The jurisdiction of this ordinance shall include all lands within Port Emma Township, Dickey County, North Dakota. B. Amendments The Board of Supervisors may from time to time on their own motion, or on petition, or on recommendation of the township residents, amend, supplement or repeal provisions of this ordinance after a public hearing. C. Non-Conforming Uses The lawful use of a building, structure or premises existing at the time of the adoption or amendment of this ordinance may be continued although such use does not conform with the provisions of this ordinance. The total structural repairs or alterations in such a nonconforming use shall not, during its life, exceed 100% of the assessed value of the building or structure unless permanently changed to a conforming use. If a non-conforming use is discontinued for a period of 24 months, any future use of the building, structures or premises shall conform to the provisions of this ordinance. D. Land Suitability 1. No land shall be used for seasonal or permanent uses because of inadequate drainage, soil limitations, or any other condition likely to be harmful to the health and safety of the users of the area or harmful to the township. 2. Where uncertainty exists as to the suitability of the land for on-site sewage disposal, the board of supervisors may request a study of the soil conditions, or other pertinent conditions. E. Conditionally Permitted Uses 1. No application for a conditional use permit shall be granted by the Board of Supervisors unless all of the following conditions are present: a. that the uses, values and enjoyment of other property in the vicinity shall in no foreseeable manner be impaired or diminished by the conditional use; b. that the conditional use will not be detrimental to or endanger the public health, safety, comfort or general welfare of the residents of the township; c. that the conditional use will not impede the normal and orderly development and improvement of surrounding property for those uses permitted in the district; d. that adequate utilities, access roads, drainage, and other necessary site improvements have been or will be provided; e. that the conditional use will conform to all applicable regulations of the district in which the conditional use is located. 4 of 14

2. Animal Feeding Operations a. Application Requirements - The application for a conditional use permit to operate a facility for an animal feeding operation shall include a scaled site plan. If the facility will handle more than 1,000 animal units, the scaled site plan shall be prepared by a registered land surveyor, a civil engineer or other person having comparable experience or qualifications. The local unit of government may require any or all of the following elements, or require additional elements, in its site plan review process when needed to determine the nature and scope of the animal feeding operation. 1. Proposed number of animal units. 2. Total acreage of the site of the facility. 3. Existing and proposed roads and access ways within and adjacent to the site of the facility. 4. Surrounding land uses and ownership, if the operation will have the capacity to handle more than 1,000 animal units. 5. A copy of the permit application submitted by the applicant to the North Dakota Department of Health. b. Permit Procedure The local unit of government may practice any or all of the provisions in the following subparagraphs in harmony with the permitting process of its general zoning regulations. 1. Application for a conditional use permit shall be submitted to the local unit of government for tentative approval. The local unit of government shall notify the North Dakota Department of Health that it has received such application. 2. The local unit of government shall notify by certified mail all property owners having property within the corresponding odor setback distance of a proposed new animal feeding operation. This notification must occur within 21 days of receiving the application. The approval process utilized by the local unit of government may include at least one advertised public hearing. 3. Following tentative approval or denial of the application by the local unit of government, the applicant shall be notified by letter of the decision, including conditions imposed, if any. 4. The applicant shall then forward its application for a conditional use permit, together with the tentative approval by the local government, to the North Dakota Department of Health. 5. Following a review by the Department of Health of the operators application for a state permit, the Department of Health will notify the local unit of government of its decision. 6. The conditional use permit will become final following a granting of a permit by the Department of Health. 7. A conditional use permit granted to the operator of a new animal feeding operation shall be put into use within twenty-four (24) months, or the permit shall lapse and the operator may re-apply.

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SECTION III ZONING DISTRICTS

For the purposes of this ordinance, Port Emma Township is divided into the following zoning districts: (A) Agricultural District (R) Residential District (C) Commercial/Industrial District

A. Zoning District Map The location and boundaries of the zoning districts are hereby established as shown on the Zoning District Map of Port Emma Township, on file at the office of the Zoning Administrator. The Zoning Administrator shall regularly update the Zoning District Map to show any changes in the zoning district boundaries resulting from amendments to the zoning ordinance. 1. Location of District Boundaries The following rules shall apply with respect to the boundaries of the zoning districts as shown on the Zoning District Map: a. where the zoning district boundary lines are indicated as following highway, road, or railroad right-of-way unless clearly shown to the contrary on the Zoning District Map. b. where uncertainty exists as to the exact location of the zoning district boundary lines, the Board of Supervisors shall determine the location of such boundary lines. B. (A) Agricultural District 1. Permitted Uses a. Farming and the activities normally associated with farming including agricultural dwellings b. If the primary activity is farming, then a commercial activity, including those requiring a sales tax permit, is a permitted use c. Home occupations d. Animal Feeding Operations less than 300 animal units 2. Conditionally Permitted Uses (the below listed uses in the Agricultural District require approval of the Board of Supervisors - see Section II,E.,1.,(a)(b)(c)(d)(e); Section II,E.,2.,(a)(b) of ordinance) a. Single family dwellings b. Churches c. Golf Courses

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d. e. f. g. h. i. j. k. l. m. n. o. p. q.

Public Parks and playgrounds Schools Airports Cemeteries Radio and television towers Sanitary landfills Grain elevators Mineral extraction including sand and gravel Utility and transmission lines Wind Generator Towers Animal Feeding Operation equal to/exceeding 300 animal units Animal Feeding Operation equal to/exceeding 1,000 animal units Animal Feeding Operation equal to/exceeding 2,000 animal units Animal Feeding Operation equal to/exceeding 5,000 animal units

3. Animal Feeding Operations a. Equivalent Animal Numbers - The animal unit equivalents for types of livestock and the numbers of livestock for facility size thresholds of 300 animal units (a.u.), and so forth, are listed in the following table. Equivalent Numbers of the Livestock (hd) for Four Sizes (a.u.) of Animal Feeding Operations Livestock Type 1 horse 1 dairy cow 1 mature beef 1 beef feeder finishing 1 beef feeder backgrounding 1 mature bison 1 bison feeder 1 swine, >55 lbs 1 goose or duck 1 sheep 1 swine, nursery 1 turkey 1 chicken Animal Unit Equivalent 2.0 1.33 1.0 1.0 0.75 1.0 1.0 0.4 0.2 0.1 0.1 0.0182 0.01 300 a.u. 150 hd 225 300 300 400 300 300 750 1,500 3,000 3,000 16,500 30,000 1,000 a.u. 500 hd 750 1,000 1,000 1,333 1,000 1,000 2,500 5,000 10,000 10,000 55,000 100,000 2,000 a.u. 1,000 hd 1,500 2,000 2,000 2,667 2,000 2,000 5,000 10,000 20,000 20,000 110,000 200,000 5,000 a.u. 2,500 hd 3,750 5,000 5,000 6,667 5,000 5,000 12,500 25,000 50,000 50,000 275,000 500,000

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b. Environmental Protection - The operator of a new facility for animal feeding is expected to locate, construct, operate, and maintain the facility so as to minimize, reduce or abate effects of pollution on environmental resources and on public safety and health. The operator of an existing facility is expected to operate and maintain the facility so as to minimize, reduce or abate effects of pollution on environmental resources and on public safety and health. Each operator shall comply with applicable state laws and rules, including the laws and rules administered by the North Dakota Department of Health and with any permits granted by that department. c. Ownership Change - An operator of a facility that includes an animal feeding operation having a permit granted by this ordinance shall notify the local unit of government of the sale, or the transfer of the ownership of that operation. d. Operation Change - An operator of a facility that includes an animal feeding operation having a permit granted by this ordinance shall notify the local unit of government of intent to include an alternate livestock type. The notice shall be given at least 120 days prior to the anticipated date of the change. 4. Area and Density Regulations a. The minimum buildable lot in the Agriculture District shall be two (2) acres with a minimum width of 200 feet. 5. Building Height Limits a. Structures intended for residential use within the Agriculture District shall be limited to a height of 2 stories or 40 feet. 6. Setback Regulations a. For structures erected in the Agriculture District the minimum building setback shall be 75 feet from township road and highway right-of-ways. b. All tree plantings shall maintain a minimum of 200 feet setback from township road and highway right-of-ways. c. There shall be a minimum side yard and rear yard of 20 feet. d. Animal Feeding Operation Water Resource Setbacks The operator of a new animal feeding operation that has more than 1,000 animal units shall not locate or establish that operation within a delineated source water protection area for a public water system. The source water protection areas for water supply wells include the entire wellhead protection area. For the surface-water intakes of public water systems, source water protection areas include all or portions of the surface water that supplies the water for the public water system, including all or portions of the surface-waters shoreline. The operator of a new facility for an animal feeding operation shall not locate that operation within the extra territorial zoning jurisdiction of an incorporated city. 8 of 14

e. Animal Feeding Operation Feedlot Odor Setbacks

An owner of property shall locate and establish a residence, business, church, school, public park, or zone for residential use so as to provide a separation distance from any existing animal feeding operation. The separation distances, or setbacks, are listed in the following table. An owner of property who is an operator may locate the owners residence or business within the setbacks. The operator of a new animal feeding operation shall locate the site of that operation from existing residences, businesses, churches, schools, public parks and areas of property that are zoned residential so as to exceed the corresponding listed setback from these places. Setback Distances for Animal Feeding Operations Number of Animal Units Fewer than 300 300-1000 1001-2000 2001-5000 5001 or more Hog Operations None 0.50 mi 0.75 mi 1.00 mi 1.50 mi Other Animal Operations None 0.50 mi 0.50 mi 0.75 mi 1.00 mi

If notified in writing by an operator of a planned future expansion of an animal feeding operation, the local unit of government may implement the corresponding odor setback for a temporary time period not to exceed two years, after which time the setback will remain in effect only if the expansion was completed. A local unit of government may increase or decrease a setback distance for a new animal feeding operation after consideration of the proposed operations plans, if it determines that a greater or lesser setback distance is necessary or acceptable, respectively, based upon site conditions or demonstrable safety, health, environmental or public welfare concerns.

C. (R) Residential District 1. Permitted Uses a. Farms and the activities normally associated with farming including agricultural dwellings b. Single family dwellings c. Churches d. Schools e. Public parks and playgrounds f. Home occupations 2. Conditionally Permitted Uses (the below listed uses in the Residential District require approval of the Board Supervisors - see Section II, E., 1., (a) (b) (c ) (d) (e) of ordinance) of

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a. b. c. d.

Two or more family dwellings (apartments) Hospitals and nursing homes Public buildings and facilities Mobile home courts

3. Area and Density Regulations a. The minimum buildable lot in the Residential District shall be 12,000 square feet in area with a minimum width of 100 feet and a minimum depth of 120 feet. b. No principal and/or accessory building shall occupy more than 30% of the lot area. 4. Setback Regulations a. For structures erected in the Residential District the minimum setback shall be 75 feet from township road and highway right-of-ways. b. There shall be a minimum side yard and rear yard of 20 feet. 5. Building Height Limits a. Structures intended for residential use within the Residential District shall be limited to height of 2 stories or 40 feet. 6. Mobile Home Courts a. All mobile home courts shall provide for a community sewer and water system and shall meet the regulations of the North Dakota State Health Department for health and safety of such systems. D. (C) Commercial/Industrial District 1. Permitted Uses a. Farms and the activities normally associated with farming including agricultural dwellings b. Commercial activities requiring a sales tax permit c. Manufacturing activities 2. Conditional Permitted Uses a. (none) 3. Area and Density Regulations a. The minimum buildable lot in the Commercial/Industrial District shall be 12,000 square feet in area with a minimum width of 100 feet and a minimum depth of 120 feet. b. No principal and /or accessory building shall occupy more than 30% of the lot area. 4. Setback Regulations a. For structures erected in the Commercial/Industrial District the minimum building setback shall be 75 feet from township roads and highway right-of-ways. b. There shall be a minimum side yard and rear yard of 20 feet. 10 of 14

SECTION IV ADMINISTRATION AND ENFORCEMENT

The Board of Supervisors of Port Emma Township shall assume the following responsibilities and duties in the administration of this zoning ordinance and in accordance with Chapter 58-03-11 through 58-03-15 or the North Dakota Century Code: A. Duties 1. Establish and administer rules and procedures for conducting the zoning affairs of the township; 2. Approve or deny applications and permits; 3. Conduct hearings on conditional use permits; 4. Establish requirements and procedures for submission of applications; 5. Publish notice of zoning hearings and posting of notice of zoning amendment of the affected site; 6. Establish fees, bonding and accounting thereof; 7. Conduct hearings on zoning amendments; 8. Issue building permits; a. A building permit shall be required for all new and/or structurally altered uses within any zoning district. 9. Hear appeals from any person, party, firm or organization aggrieved by the actions or decision of the zoning administrator; 10. Authorize variance from the terms of this ordinance when the literal enforcement of the provisions of this ordinance would result in undue and unnecessary hardship to a property owner. Variance shall be limited to the size of buildable lots, setbacks, density regulations, and side yard/rear yard regulations.

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B. Zoning Administrator The Township Supervisors may appoint an administrator to carry out the directives and duties as assigned by the Supervisors. Said administrator will be directly responsible to the Board of Supervisors. 1. The administrator shall: a. attend all hearings; b. maintain updated copies of the zoning ordinance and Zoning District Map; c. keep copies of all records and take applications for permits, conditional uses, and zoning changes; d. post notice of amendments on affected sites and post notice of hearings in the official paper; e. carry out all other duties as assigned by the Board of Supervisors. C. Building Permit 1. It shall be unlawful for any person or party to commence excavation for or construction of any new building or structure without first obtaining a building permit. Structural changes to an existing building or structure do not require a building permit as long as additional square footage is not added to. 2. Fees for building permits shall be set by the Board of Supervisors. 3. Any permit issued pursuant to these provisions shall expire 24 month from the date of issuance. D. Violations and Penalties 1. A violation of this ordinance is offense punishable by a fine not to exceed $50.00. Each day the violation exists shall constitute a separate offense. Whenever a violation of this ordinance occurs, any person may file a complaint in regard thereto at the office of the zoning administrator or with the Board of Supervisors. 2. Animal Feeding Operations Enforcement - In the event of a violation of this ordinance or a judgment on a civil action by the North Dakota Department of Health, the local unit of government, after due process, can order cessation of a facility for animal feeding within a reasonable period of time and until such time as the operator corrects or abates the cause(s) of the violation. If the cause(s) of the violation are not remedied within a reasonable period of time as set by the local unit of government, the permit may be revoked.

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SECTION V DEFINITIONS
Terms used in this ordinance have the same meaning as given by the laws and rules of the state of North Dakota, specifically chapter 33-16-03 of the North Dakota Administrative Code. The definitions for these terms and for additional terms or phrases used herein are defined as follows: 1. Accessory Building - a subordinate building, the use of which is customarily incidental to the principal building or the main use of the premises such as a garage or shed. 2. Animal Feeding Operation - a place where: livestock have been, are, or will be confined, concentrated, and fed for 45 or more days in any 12 month period; pasture, crops, or other vegetation are not normally managed or sustained for grazing during the normal growing season; and, animal waste or manure accumulates. This term does not include an animal wintering operation. Adjoining animal feeding operations under common ownership are considered to be one animal feeding operation, if they use common areas or systems for manure handling. 3. Animal Unit Equivalent - a unitless number developed from the nutrient and volume characteristics of manure for a specified livestock type. The term animal units is used to normalize the number of animals (e.g. head) for each specific livestock type which produce comparable bulk quantities of manure. 4. Animal Wintering Operation - the confinement of cattle or sheep used or kept for breeding purposes in a feedlot or sheltered area at any time between October 15 and May 15 of each production cycle under circumstances in which these animals do not obtain a majority of their feed and nutrients from grazing. The term includes the weaned offspring of cattle and sheep, but it does not include (1) breeding operations of more than 1000 animal units or (2) weaned offspring which are kept longer than 120 days and that are not retained for breeding purposes. 5. Board of Supervisors - the body authorized to hear appeals on the enforcement of this ordinance and its provisions and to grant variances. For the purposes of this ordinance, it shall be the Board of Township Supervisors of Port Emma Township. 6. Buildable Lot - any tract or land of at least sufficient size to meet the regulations of this ordinance for square footage area and width. 7. Building Permit - a certificate stating construction may take place in accordance with this ordinance. 8. Certificate of Compliance - a certificate stating compliance has been made with the regulations and requirements of this ordinance. Issued after the completion of construction or alteration of a premise. 9. Conditional Use - an exception from permitted uses within a zoning district provided such exception is stated in the ordinance and will not be detrimental to the district and will serve the public welfare.

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10. Due Process - involves two essential elements; (1) notice and (2) an opportunity for a hearing. The notice must adequately describe the potential action that might affect the person(s) being notified and it must provide the person(s) a reasonable time to respond. If the person(s) request(s) a hearing, the hearing must be fair and allow the person(s) to present relevant evidence and arguments. 11. Dwelling, Agricultural - the single and/or multi-family dwelling(s) necessary to operate the farm including dwelling(s) for the owner/operator and for any additional labor personnel required. 12. Dwelling, Single Family - a detached residential unit designed for and occupied by a single family. 13. Dwelling, Multi-Family - a residential unit designed for occupancy of two or more families. 14. Existing - in place and operating on the date this ordinance is deemed effective. 15. Home Occupation - a gainful occupation conducted by members of the family within the residence or accessory buildings on the lot. 16. Livestock - any animal raised for food, raw materials or pleasure, including, but not limited to, beef and dairy cattle, bison, sheep, swine, poultry, and horses. Livestock also includes fur animals raised for pelts. 17. Manure - fecal material and urine from livestock, as well as animal-housing wash water, bedding material, rainwater or snow melt that comes in contact with fecal material or urine. 18. Mobile Home Court - a tract of land occupied by three or more mobile homes. 19. Operator - an individual or group of individuals, a partnership, a corporation, a joint venture, or any other entity owning or controlling one or more animal feeding operations or animal wintering operations. 20. Setback - the distance within a property which is required between any structure or use and the adjacent right-of-way or property line of an adjoining lot. 21. Shall - means that the requirement is mandatory, rather than optional. 22. Surface Water - waters of the state located on the ground surface such as lakes, reservoirs, rivers, and creeks. 23. Variance - a relaxation of the terms of this ordinance to provide relief for a property owner when an undue and unnecessary hardship or some peculiar difficulty is imposed by the terms of this ordinance. Variance is limited to height, bulk, density and yard regulations. An applicant for variance must show that hardship is not the result of the property owner or other persons or parties currently having an interest in the property. 24. Waters of the State - all waters within the jurisdiction of this state, including all streams, lakes, ponds, impounding reservoirs, marshes, watercourses, waterways, and all other bodies or accumulations of water on or under the surface of the earth, natural or artificial, public or private, situated wholly or partly within or bordering upon the state, except those private waters that do not combine or effect a junction with natural surface or underground waters just defined.

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