Posted by: Patricia Salkin | November 25, 2016

ND Supreme Court Upholds Denial of Special Use Permit for Digital Billboard

Dakota Outdoor Advertising, LLC entered into a lease with Boutrous Group, the owner of property in Bismarck near the intersection of East Capitol Avenue and State Street. Dakota intended to erect a digital billboard on the property. Since the sign would be digital and located less than 300 feet from a residential property, City of Bismarck’s Code of Ordinances required Dakota to obtain a special use permit before it could erect the sign. In this case, Dakota appealed from the district court’s order affirming the Bismarck Board of Commissioner’s decision affirming the Bismarck Planning and Zoning Commission’s denial of an application for a special use permit.

The Board first argued this appeal was moot because City of Bismarck Ordinances no longer permitted special use permits for digital billboards at a distance of less than 300 feet from a residential area. However, the Ordinance the Board referred to clearly stated: “No part of this code is retroactive unless it is expressly declared to be so.” Therefore, under the City of Bismarck Code of Ordinances, the new ordinance was not expressly written to be applied retroactively. As such, the court found that this appeal was not moot.

Dakota next argued the Board’s decision to deny a special use permit was arbitrary, capricious, and unreasonable. Dakota contended the studies it presented to both the Commission and the Board supported a grant of the special use permit, and no evidence was presented which supported a denial. Despite this contention, the Board found the studies submitted by Dakota were “at best, inconclusive” and failed to address the “cumulative effect of driving distractions.” Thus, the Board gave more weight to a North Dakota Department of Transportation report’s determination the proposed billboard site was located at the “7th most dangerous intersection in the State of ND and the 2nd most dangerous intersection in the City of Bismarck.” Additionally, the Board’s other findings included a high incidence of accidents on the street running next to the proposed site, and finding Dakota’s evidence was inconclusive as to whether digital billboards increased driver distraction. The Board determined these findings supported a conclusion that granting the special use permit would “adversely affect the health, safety and welfare of Bismarck’s citizens.” Accordingly, the Board’s decision to deny a special use permit to Dakota was not arbitrary, capricious, or unreasonable. The district court’s order affirming the Board’s decision to deny a special use permit was therefore affirmed.

Dakota Outdoor Advertising, LLC v. City of Bismarck, 2016 WL 6611238 (ND 11/9/2016)

 


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