Posted by: Patricia Salkin | July 31, 2017

Don Sorenson Investments owned residentially-zoned property in Williams County, and requested a zone change for the property from residential to commercial to “conduct small commercial business” on the property.  However, a staff report prepared for the Williams County Board of County Commissioners stated Sorenson had been out of compliance 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. Williams County then sued Don Sorenson Investments, Don Sorenson, and Caleb Sorenson for violating zoning ordinances and maintaining a public nuisance. Williams County appealed a district court judgment granting summary judgment in favor of Don Sorenson Investments, LLC.

On appeal, the County contended that the district court erred in concluding administrative res judicata did not preclude the Sorensons from challenging the existence of zoning violations on their property, and that the earlier proceedings before the Board of County Commissioners precluded the Sorensons from re-litigating the existence of zoning violations. The court rejected this argument, finding that the Sorensons’ noncompliance with the zoning ordinances was ancillary to the Board’s final decision denying the Sorensons’ request for a zone change. As such, the district court did not err in concluding administrative res judicata did not apply.

The County next argued that the court erred in concluding the County’s zoning ordinances did not define the term “commercial,” and did not give proper notice of what constituted a zoning violation. However, the Sorensons were not arguing the zoning ordinances were unconstitutionally vague because the term “commercial” was not defined, but whether their use was one of the nine permitted uses in a residential district. Here, the County’s complaint plainly alleged the Sorensons’ use of their property violated Section III of the zoning ordinances because their use of the property was not one of the permitted uses in a residential district under Section III(D)(3). The affidavit of the Williams County Code Enforcement Officer set out specific facts based on his personal knowledge indicating the Sorensons’ use of the property was not a permitted use in a residential district. As such, the court held the County presented sufficient evidence to establish a genuine issue of material fact as to whether the Sorensons’ use of the property violated Section III(D)(3) of the County’s zoning ordinances. The district court’s granting of summary judgment in favor of the Sorensons, denying the County’s cross-motion for summary judgment, and dismissing the County’s complaint was therefore reversed.

Williams County v Don Sorenson Investments, LLC, 2017 WL 3222767 (ND 7/31/2017)

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