Agenda - Planning Commission - 11/07/1996

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Page 8 -- October 15, 1996 7,.5. The city ordinance prohibited most structures in yards or courts from ob- .Structing any building or structure from its lowest point upward. If structures ~vere used for private recreational purposes and less than two feet high, they Could occupy a property's entire required side yard. UnCovered porches could not extend more than 10 feet into any required front yard or rear yard, and not more than three fe~t into any side yard or court. !_ With the city's approval, the Nesses attached an enclosed deck to their kouse. The Nesses then built a second deck attached to the enclosed one, :extending to their property's side-lot boundary. The deck was 18 inches high !at the house and 22 inches high at the edge of the yard. The Nesses used it )deck for barbecuing, sunbathing, sitting and reading. The city building inspector determined the deck extension viol~ted the city's zoning ordinance because it was an uncovered porch and extended more ithan three feet into a required side yard. The city told the Nesses to remove or modify the deck extension. The Nesses refused. L The city sued, asking the court to order the Nesses to remove or modify the deck. (Meanwhile, the Nesses twice applied for a variance from the Fargo :Board of Adjustment. Both their requests were denied.) Without reviewing . .any other issues, the court found the city acted within its'jurisdiction when it ordered the Nesses to remove or modify the deck. It granted the city judgment and ordered the Nesses to remedy the problem. The Nesses appealed. The state Supreme Court found the city did not i show it was entitled to an order forcing the Nesses to remove or modify the _deck extension -- the city had to show the structure violated the ordinance. -The case was sent back to the lower court. ! The lower court reviewed the evidence and the city's interpretation of its :zoning ordinance. It concluded the deck did not violate the ordinance. It dis- missed the case and the city appealed. DECISION: Affirmed, in favor of the Nesses. ~ The Nesses' deck did not violate the ordinance, so the city was wrong to :~order them to remove or modify it. : The deck extension was not an "uncovered porch." The term was not defined'in the ordinance, but the dictionary's definition of porch was: "1. A covered entrance to a building, usually projecting from the wail and having a i separate roof 2. An open or enclosed gallery or room on the outside of a building; a veranda." The deck extension was not an entrance to the house, _ nor was it a gallery, room or veranda. The deck was used for private recreational purposes. As such, it was per- mitted to occupy the entire side yard as long as it was less than two feet high. The deck was 22 inches at its highest point. City of Fargo v. Ness, 529 N. W. 2d 576 (1995). Wingerter v. North Dakota Department of Transportation, 530 N.W. 2d 362 (J995).