City Of Bismarck Should Take Up ETA Reform Discussion

In public policy and politics, some issues come up over and over for years without solutions being implemented. The issue of extra-territorial zoning is one such issue.

Extra-Territorial Zoning authority (ETA for short) is a power the state grants cities to regulate zoning and building code in areas outside of that city’s limits.

The premise is that cities should control how development should happen outside city limits because that area may someday be annexed into the city.

It’s an issue I have been exposed to and have worked on since 2009 when the issue came up in Senate Bill 2027 which was introduced by the “Advisory Commission on Intergovernmental Relations” as a solution to address the conflict between cities, townships, and counties on the issue.

The bill stated: “Any zoning change or subdivision plat approved or any change in zoning or subdivision regulation in the area of joint jurisdiction must be approved by both governing bodies before the change becomes effective".

It went on establish a mediation process.

While some aspects of this bill have become law since then, it has never really solved the problems at the local level.

Recurring Fights Over ETA Never Resolve The Issue

In 2017, the issue last hit a peak of discussion both at the legislative level and at the local level when I helped float the idea of a citizen-initiated City Home Rule Charter Amendment petition to address the issue:

That effort never got off the ground, but it did represent a “nuclear option” approach to tackling the issue.

Issue Re-Emerges This Week

The issue of the ETA when it comes to the City of Bismarck re-emerged this week when City Commissioner Mike Connelly asked for a discussion to consider requesting a joint meeting of the Bismarck City Commission and the Burleigh County Commission to discuss the issue of the ETA.

What happened was an hour of citizen testimony by residents living in the ETA who are regulated by the city but are not allowed to vote in city elections.

The discussion at the commission table was a little disjointed because it is obvious that not all of the commissioner are fully up to speed on the long decades long fight over this issue - both locally and legislatively.

Ultimately, they voted 3-2 against requesting the joint meeting with the county commission - but I think that is a mistake that should be reconsidered.

Commissioner Mike Connelly on Tuesday raised the idea of calling a joint meeting with the Burleigh County Commission, but after more than 30 minutes of discussion and several ETA residents speaking in support of the meeting, the idea was narrowly defeated in a 3-2 vote, with Mayor Mike Schmitz casting the deciding 'no' vote.

"My only concern is putting 10 of us in the room, I'm not sure what we get done," Schmitz said.

Commissioners Anne Cleary and John Risch joined the mayor in voting against the proposal.

[…]

To address concerns, Connelly suggested hosting a public input meeting with the Burleigh County Commission to have a conversation about ways the ETA could improve. He outlined several possible options for the future, including allowing voters to decide whether the ETA should continue, eliminating the zone entirely, reducing its size and potentially doing away with look-back assessments.

[…]

"What's the harm in getting all 10 of us in the room to have such discussions in the public view when we're representing people," Connelly said. "There's a lot of different opinions. We ran to represent."

Connelly said city leaders have been “kicking the can down the road” when it comes to addressing the ETA. He noted that while the Bismarck-Burleigh Commissions Committee has previously discussed the ETA, those conversations have not included all members of both commissions.

Bringing everyone to the table could end the finger-pointing that currently occurs between the two boards regarding the ETA, he said.

"When you get a lot of that finger-pointing, get everybody in the room to talk and it takes away a lot of those challenges," Connelly said.

Cleary said that while she is not opposed to a joint meeting, she does not believe it will offer a “magical solution” that satisfies everyone. She said eliminating the ETA would make development more difficult for the city.

[…]

"I think you're going to get a city and a county perspective, and it's going to be different," she said of a potential joint meeting. "It all comes down to how we want to approach growth but then also who we represent."

Following the discussion, Connelly made a motion to ask the Burleigh County Commission to join them in a public input meeting, contingent on a majority vote of the County Commission requesting all of its members join as well. After city commissioners voted 2-2, Schmitz briefly and silently pondered his tie-breaking vote before killing the motion.

Yesterday, on KFYR-Radio, we had an hour long discussion on this topic (listen to the audio at the top of this page). We got into the nuts and bolts of the policy around this issue.

I would encourage city and county commissioners to listen to this audio.

Friction Between The City And County Serve As Backdrop For The ETA Issue

What do you do when two entities are funded by essentially the same group of taxpayers but can’t get along? That is the dilemma facing the Bismarck City Commission and the Burleigh County Commission on many issues such as the Renaissance Zone, Public Health, Extra-Territorial Zone, and many other issues.

Back in 2022, this became a major issue on the topic of funding “public health”.

The City of Bismarck represents 77% of the total population of Burleigh County. It also generates 73% of the property tax revenue for Burleigh County. The City of Bismarck has been operating the public health department and Burleigh County has been kicking in 5% - which is far below proportional. The city requested Burleigh County’s contribution be increased to 20%.

The Burleigh County Commission did not (and still does not) believe that they should pay for 2/9ths (23%) of the operating cost. According to the city officials, state law says the county should be paying 100%, then charging the city back for its share.

Technically, the way the city has been operating the existing Public Health agency on-behalf of the county is not following the law, regardless of the cost-share split.

This is just one of the many disagreements the county and city have which have been getting in the way of inter-governmental cooperation.

Back in 2022, I personally ran for the Burleigh County Commission (unsuccessfully), and addressing the ETA was one of my top priorities:

At that time I wrote of the need to create a joint committee between the city and county to address these issues.

I have long been a critic of many of the city's policies. Examples of this include: the way the city sold the existing Public Health building at a loss of over a million dollars to the University of Mary, buying the Bowen Ave. strip-mall in the first place, then selling it at a loss, and the fight that had to be waged to convince the city to shut down the old TIF District.

However, there must be a distinction between those who made what some of us consider the mistakes of the past, and those empowered NOW to fix said mistakes.

When it comes to issues of over-reach, such as the “regulation without representation” we see the City of Bismarck exert via their Extra-Territorial Authority (ETA), I fully support the county commission’s efforts to give their constituents more of a say in how they are governed by city officials they cannot vote for or against.

But when it comes to matters of cost-sharing, I do believe that a comprehensive across-the-board examination of how the City of Bismarck and Burleigh County tax their overlapping jurisdictions, and how those tax dollars are split by function. This requires more than just arguing about how much of the Public Health budget each one pays to fund. It involves looking at the entire picture: every joint-powers agreement, every service contract, every cost-share, and even every special-assessment levy. Let’s open the books, and figure out if various formulas created years or decades ago make sense today.

So what should the city and county do to fix these problems and come to a solution? The existing Inter-Governmental Relations Committee model is clearly not working the way it should, or else the city and county would not have these problems.

I propose that the city commission and county commission resolve to come together as complete boards for at least one meeting per month to fully brief each other on what the other is doing and to hash out differences where there is overlap on a multitude of issues. The current approach to simply send a messenger one way or the other is not working.

The Bismarck City Commission and the Burleigh County Commission need to be in the same room and talk to each other – not act as adversaries. The taxpayers elected these representatives to do what is best for everyone. The point of having two levels of government is not to duplicate roles or act as rivals – it is to divide labor, let the level of government best suited to certain roles perform those functions, and agree on how much the other should chip in based on some sort of math calculation.

This should be the expectation and normal course of business!

When current Bismarck Mayor Mike Schmitz was elected in 2022, he proposed his own version of this concept:

The Burleigh County Commission passed the proposal to create a joint committee with the city of Bismarck. The Commission initially rejected the proposal.

The two commissions hope to create a better communication network since some expenses and responsibilities are shared between the entities. Last fall, the groups had some miscommunication about funding for the new, shared Public Health building being constructed.

“We have some very critical services we need to work together on. We need to create transparency between both commissions, that’s why I proposed it to my board,” said Mayor Mike Schmitz.

The proposal for the joint committee now has passed unanimously by both commissions.

I would respectfully suggest to Mayor Schmitz that a more structured plan for joint meetings between the city and county take place on this issue.

It is one of the long-standing and long-festering issues that has been causing friction between the city and county for decades.

It’s time to tackle these issues, head-on.