Justia Zoning, Planning & Land Use Opinion Summaries

Landowners from the Buffalo area appealed a district court judgment affirming the Department of Health's decision to issue Rolling Green Family Farms an animal feeding operation (AFO) permit. The landowners argued the Department erred by issuing Rolling Green an AFO permit and by failing to reopen the public comment period after Rolling Green provided further information to supplement its permit application. Finding no reversible error, the North Dakota Supreme Court affirmed. View "Coon v. N.D. Dep't of Health" on Justia Law

Don Sorenson Investments owned residentially-zoned property. In 2015, Don Sorenson requested a zone change for the property from residential to commercial to "conduct small commercial business." A site inspection following Sorenson's request indicated the property was being used to store semi-trucks, gooseneck flatbed trailers, bulk fuel tanks, and shipping containers. A report prepared for the Williams County Board of County Commissioners stated Sorenson had been out of compliance since October 2014 for operating a trucking oilfield business on the property without the County's permission. The Board of County Commissioners denied Sorenson's request and ordered removal of all commercial items from the property. Sorenson appealed the Board's decision, and the district court affirmed. In October 2015, Williams County sued Sorenson for violating zoning ordinances and maintaining a public nuisance. In December 2015, the County moved for a preliminary injunction, alleging the Sorensons continued to use the property for commercial purposes. The Sorensons moved for summary judgment, arguing the County did not indicate which provisions of the zoning ordinances they violated and did not provide specific details regarding the commercial business alleged to have been operated on the property. The County opposed the Sorensons' motion and filed a cross-motion for summary judgment. The County argued administrative res judicata prevented the Sorensons from challenging the zoning violations on their property because the Board of County Commissioners had already determined they were in violation. The district court granted the Sorensons' motion for summary judgment and denied the County's cross-motion for summary judgment, concluding the zoning ordinances did not define "commercial," "commercial operation," or "commercial item" so as to give the Sorensons proper notice of what constituted a zoning violation. The court concluded res judicata did not apply, denied the County's request for sanctions for spoliation of evidence, denied its request for civil penalties, and dismissed the County's complaint. "Administrative res judicata is applied more cautiously than judicial res judicata," taking into consideration the subject matter decided by the administrative agency, the purpose of the administrative action, and the reasons for the later proceeding. On appeal, the party opposing a motion for summary judgment will be given all favorable inferences that may be reasonably drawn from the evidence. The North Dakota Supreme Court reversed that part of the judgment granting summary judgment in favor of the Sorensons, denying the County's cross-motion for summary judgment, and dismissing the County's complaint. View "Williams County v. Sorenson" on Justia Law

Paving District 476 Group; SPCM, LLC; Schuler Repair; Feland Brothers Properties, LLC; Hudye Group LP; and Northern Plains Apartments, LLC (collectively "landowners") appealed an order dismissing their complaint against the City of Minot. The City received a petition to make improvements to 36th Avenue Northeast. The City Council approved Resolution No. 3109, declaring work necessary for the improvements. At a July 2016, meeting, the City Council approved a special assessment commission report for the paving district. Several property owners attended the meeting and spoke before the council, raising concerns about a change in the area being improved and about paying for improvements to properties outside city limits. The landowners sued the City, seeking a judgment declaring the assessments invalid and the assessments be held in abeyance until they did not include the area between 10th and 13th Streets and enjoining the City from certifying future assessments. They claimed the assessments were invalid because they did not receive proper notice, the City violated their due process rights by expanding the improvements beyond the original parameters and failing to give notice the improvements included the expanded area, and they were assessed for improvements between 10th Street and 13th Street which did not benefit their properties and constituted a gift to third parties. After a hearing, the district court granted summary judgment and dismissed the complaint, concluding the landowners were barred from bringing the action because they failed to appeal or commence the action within the thirty-day time limit under N.D.C.C. 40-22-43 and any statutory irregularities did not deprive the landowners of their constitutional due process rights. The North Dakota Supreme Court affirmed, concluding the City's alleged failure to give the landowners notice of the full extent of the proposed improvements did not violate the landowners' constitutional due process rights and the landowners' action to invalidate the assessments for failure to follow statutory procedural requirements is barred by N.D.C.C. 40-22-43. View "Paving District 476 Group v. City of Minot" on Justia Law

Statoil Oil & Gas LP appealed judgments dismissing without prejudice its actions against numerous defendants, seeking a determination of the proper distribution of oil and gas revenues from Williams and McKenzie County wells on land adjacent to the Missouri River and under Lake Sakakawea. It was undisputed that the United States claimed an interest in the property and, although the United States waived sovereign immunity regarding real property title disputes, those actions against the United States had to be brought and resolved in a federal court. The parties therefore agreed that joinder of the United States was not feasible for purposes of N.D.R.Civ.P. 19(a). The provisions of N.D.R.Civ.P. 19(b) come into play:"(b) When Joinder Is Not Feasible. If a person who is required to be joined if feasible cannot be joined, the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed. Considering N.D.R.Civ.P. 19(b)(1), the district court noted the United States would be prejudiced to some extent by its absence in the proceedings because, although it would not be bound by a state court judgment, a judgment in favor of other mineral owners would cloud its record title to the disputed property. This could force the United States to institute a proceeding to protect its interests in the property, resulting in a waste of judicial and party resources. The trial court concluded there was a risk of substantial prejudice to the United States (including both its mineral interests and its sovereignty) if this matter proceeded in its absence, and therefore the first factor favors dismissal. The North Dakota Supreme Court affirmed, concluding the district court did not abuse its discretion in dismissing the actions because Statoil failed to join the United States as an indispensable party. View "Statoil Oil & Gas, LP v. Abaco Energy, LLC" on Justia Law

Nandan, LLP appealed the grant of summary judgment and an order denying its N.D.R.Civ.P. 60(b) motion for relief from judgment, ruling that road and utility repairs were incidental to the repair of a water and sewer system damaged by a landslide in Fargo, and that the City of Fargo was therefore not required to pass a resolution of necessity to create an improvement district to fund the repairs. In 2012, a landslide occurred along 32nd Street North in Fargo near where Nandan and Border States Paving, Inc., owned property. The landslide damaged a water main and storm sewer; the street; and Drain No. 10, which was owned, operated, and maintained by the Southeast Cass Water Resource District. The road and adjacent water and sewer lines were owned by Fargo. Fargo created an improvement district to fund repairs to the drain, water main, and sanitary sewer systems on a portion of the drain without adopting a resolution of necessity. Fargo later entered into a joint powers agreement with the District which set forth the parties' obligations for the repairs. The district court granted Fargo's N.D.R.Civ.P. 12(b)(6) motion to dismiss for failure to state a claim upon which relief could be granted, concluding Nandan and Border States had no right to protest under N.D.C.C. 40-22-06 because the city let the bids for project construction, or under N.D.C.C. 40-22-15 because the project constituted a water or sewer improvement for which a resolution of necessity was not required. Finding that Nandan failed to raise a genuine issue of material fact precluding summary judgment, the North Dakota Supreme Court affirmed. View "Nandan, LLP v. City of Fargo" on Justia Law

Western Petroleum, LLC, and Maxum Petroleum Operating Company, Inc., doing business as Pilot Logistics Services (Pilot), appealed a district court order affirming their appeal of the Williams County Board of County Commissioners' decision to penalize Pilot for violating the county's temporary housing regulations. In September 2011 the Williams County Board of County Commissioners adopted temporary housing regulations relating to the use of "man camps" or "crew housing facilities" in the county. The use of temporary housing on property within the county was prohibited without a conditional use permit. In 2014 the Board became aware that Pilot was using its property for temporary housing after Western Petroleum's permit expired. Pilot was out of compliance on 40 RVs since September 6, 2012, and on seven mobile home units since September 6, 2013. Pilot also had two two-story framed houses on the property that were not permitted under Western Petroleum's conditional use permit. At its July 2014 meeting, the Board assessed a $29,635,000 penalty against Pilot for violating the temporary housing regulations. The Board calculated the penalty by treating each non-permitted use as a violation subject to a $1,000 penalty per day. The Board calculated the $1,000 penalty on a per housing unit, per day basis. The Board offered Pilot a reduced penalty of $1,885,000 if paid within 10 days. Pilot did not pay the reduced penalty and the Board imposed the full penalty. The district court affirmed the Board's decision, concluding the penalty against Pilot was supported by the evidence and was not an unreasonable interpretation of the temporary housing regulations. The North Dakota Supreme Court disagreed, reversed and remanded because the Board unreasonably interpreted the regulations. View "Western Petroleum, LLC v. Williams Cty. Bd. of Commissioners" on Justia Law

Dakota Outdoor Advertising, LLC ("Dakota") appealed the district court's order affirming the Bismarck Board of Commissioner's ("Board") decision affirming the Bismarck Planning and Zoning Commission's ("Commission") denial of an application for a special use permit. City of Bismarck ordinances regulating placement of digital billboards were changed since the district court entered judgment in this case. Section 14-03-08(3)(b)(2)(j) no longer included a provision for obtaining a special use permit for a digital billboard at a distance of less than 300 feet from a residential area. The current provisions governing siting of digital billboards would no longer permit Dakota to obtain a special use permit for the proposed site. The Board argued this appeal was now made moot. After review, the Supreme Court did not find this appeal was moot, but also found that the Board's decision to deny the special use permit was not arbitrary, capricious, or unreasonable. Accordingly, the Court affirmed the district court's order affirming the Board's decision to deny the special use permit. View "Dakota Outdoor Advertising, Inc. v. City of Bismarck" on Justia Law

In August 2014, the First Western Bank and Trust (Bank) applied for two variances from City of Minot zoning regulations for off-street parking after incorrectly calculating the size of an addition to its bank building. The Bank's application sought to reduce the required number of off-street parking spaces for its building from 131 to 110 and to reduce the required width of each parking space from 10 to 9 feet. After notice to the Bank's neighbors, the Minot Planning Commission met to consider the application, and several neighbors appeared to oppose the application. The Planning Commission approved the application, finding the existence of an exceptional topographical hardship and the variances could be granted without substantial detriment to the public good and without impairing the general purpose and intent of Minot's comprehensive zoning plan. The Planning Commission affirmed its earlier decision approving the application. The City Council later affirmed the Planning Commission's decision. Sixteen Minot residents living near the Bank appealed a judgment dismissing their appeal of the City Council’s decision to grant the Bank's application for zoning variances. The residents argued the district court erred in ruling they lacked standing under N.D.C.C. 40-47-12 to appeal the City Council's decision granting the variances. After review, the Supreme Court concluded the district court erred in applying N.D.C.C. 40-47-12 as grounds for its standing decision. Nevertheless, the Supreme Court concluded the residents were not aggrieved applicants authorized to appeal a variance decision under N.D.C.C. 40-47-11. The Court therefore affirmed the judgment dismissing their appeal. View "Schmidt v. City of Minot" on Justia Law

Plains Marketing, LP and Van Hook Crude Terminal, LLC, appealed an order affirming a Mountrail County Board of County Commissioners' decision to deny their application for an abatement of 2013 real estate taxes for three parcels of land in Mountrail County. They argued the North Dakota Supreme Court should reverse the County Board's denial of their application for an abatement because the County Board incorrectly applied the omitted property provisions in N.D.C.C. ch. 57-14. After review of the Commissioners' decision, the Supreme Court agreed and reversed the order. View "Plains Marketing, LP v. Mountrail Cty. Bd. of Cty. Comm'rs" on Justia Law

William Rakowski appealed after a district court granted summary judgment in favor of the City of Fargo. Rakowski owned rental houses in Fargo. In November 2011, Fargo inspected one of the houses and found the garage was deteriorating, the siding on the house was deteriorating, two egress window wells were collapsing and one window was broken. Fargo notified Rakowski of the need for repairs and re-inspection. The house was re-inspected a month later, and three once a month, three months after that. Fargo charged Rakowski a single $100 fee for a January 2012 re-inspection, which Rakowski did not pay. Fargo brought a small claims action to collect the fee, Rakowski removed the claim to district court and both parties moved for summary judgment. The district court granted summary judgment in favor of Fargo and Rakowski appeals. Rakowski argued the district court erred because Fargo did not have authority to assess a re-inspection fee, Fargo was required to have a search warrant before re-inspecting the house, the re-inspection fee constituted an illegal bill of attainder, Fargo's claim was barred by double jeopardy and res judicata and he was entitled to relief under 42 U.S.C. 1983. Finding no reversible error, the Supreme Court affirmed. View "City of Fargo v. Rakowski" on Justia Law