Schmidt v. City of Minot

883 N.W.2d 909

Joe A. SCHMIDT, Kelly P. Buettner–Schmidt, Barry D. Hoffer, Susan L. Hoffer, Michael A. Lucy, Nancy A. Lucy, Steve P. Muus, Fae M. Self, Gene E. Nettleton, Lori J. Nettleton, Clyde Houge, Janelle Houge, Jon Anderson, John Seier, Julie Seier, Rich Hulm, Appellants

v.CITY OF MINOT, Minot City Council, and Minot Planning Commission, Appellees.

No. 20160088.

Supreme Court of North Dakota.

Aug. 31, 2016.

Derrick L. Braaten (argued) and Beth A. Baumstark (appeared), Bismarck, N.D., for appellants.

Randall J. Bakke (argued) and Shawn A. Grinolds (on brief), Bismarck, N.D., for appellees.

SANDSTROM, Justice.

[¶ 1] Sixteen Minot residents living near First Western Bank and Trust appeal from a judgment dismissing their appeal from a Minot City Council decision granting the Bank's application for zoning variances. The residents argue 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. We conclude the court erred in applying N.D.C.C. § 40–47–12 to rule the residents lacked standing to appeal the City Council's decision, but we nevertheless conclude the residents are not aggrieved applicants authorized to appeal a variance decision under N.D.C.C. § 40–47–11. We affirm the judgment dismissing their appeal.

I

[¶ 2] 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. After notice to the Bank's neighbors, the Minot Planning Commission met on August 25, 2014, 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. At a September 29, 2014, meeting the Planning Commission affirmed its earlier decision approving the application. After a public meeting on October 6, 2014, the City Council affirmed the Planning Commission's decision.

[¶ 3] The residents appealed the City Council's approval of the Bank's application for the variances to the district court. The residents claimed the City Council's decision was arbitrary, capricious, and unreasonable and there was insufficient evidence supporting the variances. The court ruled the residents lacked standing to appeal the City Council's approval of the zoning variances under N.D.C.C. §§ 28–34–01 and 40–47–12. The court explained that Minot had not adopted an ordinance conferring standing on citizens to appeal a City Council decision to the district court under N.D.C.C. § 40–47–12 and the rationale of Munch v. City of Mott, 311 N.W.2d 17, 20–21 (N.D.1981), and that the residents' appeal did not involve the City Council's review of a board of adjustment decision under N.D.C.C. § 40–47–11. The court dismissed the residents' appeal and denied their request for reconsideration.

[¶ 4] The residents' appeal from the judgment dismissing their appeal is timely under N.D.R.App.P. 4(a), and this Court has jurisdiction to hear an appeal from a district court judgment under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28–27–01. A district court has appellate jurisdiction as provided by law under N.D. Const. art. VI, § 8, and under N.D.C.C. § 27–05–06(4), and the issues raised in this appeal involve the district court's jurisdiction to hear the residents' appeal.

II

[¶ 5] The residents argue they have standing to appeal the City Council's approval of the zoning variances. They argue N.D.C.C. § 40–47–12 does not apply to this proceeding, because that statute authorizes proper local city authorities to bring an action or proceeding to restrain, correct, or abate zoning violations and their appeal is not an action or proceeding to restrain, correct, or abate a zoning violation. They claim the Planning Commission was acting as a board of adjustment in granting the variances and they had a right to appeal the City Council decision affirming the Planning Commission's decision under N.D.C.C. §§ 28–34–01 and 40–47–11. They also claim, if the Planning Commission was not acting as a board of adjustment, the Planning Commission had no authority to grant variances and the variances were void. They argue Minot cannot delegate a board of adjustment's functions to a planning commission to deprive them of the legislatively created right to appeal a board of adjustment's variance decision.

[¶ 6] The City of Minot, the City Council, and the Planning Commission respond there is no separate statutory authority for an appeal in this case, because the Planning Commission was not acting as a board of adjustment in granting the variances and the statutory procedure authorizing an appeal of a board of adjustment decision does not apply to a planning commission decision. The Minot entities claim Minot's home rule ordinances do not provide for a board of adjustment and thus do not incorporate the statutory provisions pertaining to appeals from variance decisions by a board of adjustment. They contend the City Council decision is final and not appealable. They also contend the district court did not err in applying N.D.C.C. § 40–47–12, because Minot ordinances do not authorize a private right of enforcement of violations of zoning ordinances under the rationale of Munch, 311 N.W.2d at 20–21.

[¶ 7] The issues raised in this appeal involve the interpretation of statutory provisions pertaining to zoning and variance procedures, including appellate review of variance decisions. Statutory interpretation is a question of law and is fully reviewable on appeal. Hector v. City of Fargo, 2014 ND 53, ¶ 13, 844 N.W.2d 542. Words in a statute are given their plain, ordinary, and commonly understood meaning, unless defined by statute or unless a contrary intention plainly appears. N.D.C.C. § 1–02–02. Statutes are construed together to give effect to each word and phrase, and all parts of a statute must be construed to have meaning. N.D.C.C. § 1–02–07. If the language of a statute is clear and unambiguous, the language may not be disregarded under the pretext of pursuing its spirit. N.D.C.C. § 1–02–05. If the language of the statute is ambiguous, however, a court may resort to extrinsic aids to interpret the statute. N.D.C.C. § 1–02–39.

[¶ 8] Chapter 40–47, N.D.C.C., deals with city zoning, and N.D.C.C. § 40–47–01 authorizes the governing body of a city to enact zoning regulations which may provide for a board of adjustment to determine and vary the application of the zoning regulations. See also N.D.C.C. §§ 40–47–02 (authorizing governing body to divide city into districts for zoning regulations); 40–47–03 (describing purposes for zoning regulations); 40–47–04 (describing procedure for enacting zoning regulations); and 40–47–05(describing procedure for amending zoning regulations). Section 40–47–06, N.D.C.C., provides a governing body of a city using the zoning powers in N.D.C.C. ch. 40–47 shall appoint a zoning commission to recommend boundaries for zoning districts, and if the city has a planning commission, it may be appointed as the zoning commission. See N.D.C.C. § 40–48–03 (authorizing creation of planning commission of not more than ten members). See generally N.D.C.C. ch. 40–48 (provisions for municipal master plans and planning commissions).

[¶ 9] Section 40–47–07, N.D.C.C., says the governing body of a city “may provide for the appointment” of a five-member board of adjustment which “shall hear and decide appeals from and shall review any order ... made by an administrative official charged with the enforcement of any ordinance adopted” under N.D.C.C. ch. 40–47. 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 city officer shall transmit the papers constituting the record to the board of adjustment. N.D.C.C. § 40–47–08. Section 40–47–09, N.D.C.C., outlines the procedure for a hearing before the board of adjustment, and N.D.C.C. § 40–47–10 says an appeal stays all proceedings from which the appeal is taken unless the appropriate city official certifies a stay would cause imminent peril to life or property. Section 40–47–11(1), N.D.C.C., authorizes review of a board of adjustment decision and provides a board of adjustment decision may be appealed to the governing body of the city “by either the aggrieved applicant or by any officer, department, board, or bureau of the city.” Under N.D.C.C. § 40–47–11(2), “[a] decision of the governing body of the city on an appeal from a decision of the board of adjustment may be appealed to the district court in the manner provided” by N.D.C.C. § 28–34–01. Section 40–47–12, N.D.C.C., authorizes “the proper local authorities of the city” to bring “any appropriate action or proceeding” 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 of any ordinance or regulation made under the authority of N.D.C.C. ch. 40–47.

[¶ 10] Within that statutory framework, we initially consider the district court's ruling that the residents lacked standing to appeal the City Council's decision under N.D.C.C. § 40–47–12.

[¶ 11] A court must have both subject matter and personal jurisdiction to issue a valid order or judgment. Garaas v....