Posted by: Patricia Salkin | October 24, 2016

ND Supreme Court Holds Neighbors were Not Statutorily Authorized to Appeal the City Council’s Variance Decision

In August 2014, the Bank applied for two variances from 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. Sixteen Minot residents living near First Western Bank and Trust appealed from a judgment dismissing their appeal from a Minot City Council decision granting 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.

Under N.D.C.C. § 40–47–08, an appeal from an order by an administrative official to the board of adjustment “may be taken by any person aggrieved or by any officer, department, board, or bureau of the city” within the time prescribed by board rule by filing a notice of appeal specifying the grounds for appeal with the officer from whom the appeal is taken and with the board of adjustment. The language of N.D.C.C. § 40–47–12 authorized “the proper local authorities of the city” to “institute any appropriate action or proceeding” ostensibly to restrain, correct, or abate zoning violations if “any building or structure is erected, constructed, reconstructed, altered, repaired, converted, or maintained, or … used in violation of” N.D.C.C. ch. 40–47, or ordinances enacted under that chapter. Here the residents were not “proper local authorities of the city,” and they did not bring an action or proceeding to restrain, correct, or abate a zoning violation for “any building or structure … erected, constructed, reconstructed, altered, repaired, converted, or maintained or … used in violation” of N.D.C.C. ch. 40–47. Instead, the residents appealed a City Commission decision granting the Bank’s application for two variances. The residents’ appeal sought appellate review of a decision rendered by the City Council. Accordingly, the court concluded that N.D.C.C. § 40–47–12 did not apply to the residents’ appeal, and the district court erred in dismissing their appeal under that statute.

Section 40–47–08, N.D.C.C., authorizes “any person aggrieved” by a decision by a city administrative official charged with enforcement of an ordinance adopted under N.D.C.C. ch. 40–47 to appeal to a board of adjustment. The 1985 legislation specifically used the term “aggrieved applicant” to describe the entity statutorily authorized to appeal a board of adjustment decision to the governing body of the city. The term “person” used in N.D.C.C. § 40–47–08 for appeals to a board of adjustment was different from the term “applicant” used in N.D.C.C. § 40–47–11(1) for appeals to the governing body of a city. The court found that the legislature’s use of those different terms demonstrated an intention for a different meaning for the entities statutorily authorized to appeal variance decisions. The court construed the term applicant to mean the entity applying for a variance, and therefore concluded the residents were not “aggrieved applicants” under N.D.C.C. § 40–47–11. Moreover, despite the residents’ claim construing N.D.C.C. § 40–47–11 to deny them an appeal resulted in potential constitutional infirmities, the court noted that there was no constitutional right to an appeal. Accordingly, the district court’s holding in favor of the City was affirmed.

Schmidt v. City of Minot, 2016 WL 4536665 (ND 8/31/16)

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