Agenda - Planning Commission - 01/05/2017

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Zoning Bulletin October 25, 2016 1 Volume 10 1 Issue 20 that N.D.C.C. § 40-47-12 did not apply to their case because 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. Rather, the court found that the residents appealed a City Council decision granting the Bank's application for two variances. However, the court also agreed with the City, finding that the Residents were not statutorily authorized to appeal the City Council's variance decision. In so ruling, the court did not decide whether the City was correct in its claim that it was authorized by statute,as a home- rule city, to have the Planning Commission decide variance appeals and ostensibly preclude appeals from variance decisions to a district court." Rather, the court simply pointed to the statutory language of N.D.C.C. §40-47-11 again—noting it authorized review of a board of adjustment decision and provided 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." Interpreting "aggrieved applicant" as the "entity applying for a vari- ance"(which here was the Bank),the court concluded that the Residents were not "aggrieved applicants" within the meaning of N.D.C.C. §40- 47-11. Accordingly, the court concluded that the Residents were not statutorily authorized to appeal the City Council's variance decision in this case. See also:Munch a City of Mott, 311 N.W.2d 17(N.D. 1981). { Case Note: In another case, Munch v. City of Mott, 311 N.W.2d 17 (N.D.1981), the Supreme Court of North Dakota had held that a city ordinance conferring stand- ing to bring an action for injunctive relief upon "any affected citizen or prop- erty owner" did not exceed the city's authority under N.D.C.C. §§40-47-04 i and 40-47-12. The Court, in that case, had said that the city's extension of standing requirements beyond N.D.C.C. §40-47-12 to also include affected citizens or property owners was compatible with promoting the health, safety, morals, or general welfare of the community. In the case here (Schmidt),the court made clear that rationale in Mott did not extend standing to appeal to the Residents.While the Mott case involved a city ordinance extending standing to any affected citizen or property owner"to bring an action or proceeding to re- strain,correct, or abate zoning violations under N.D.C.C. §40-47-12,the case here was instead about the statutory authorization to appeal a variance decision. Here, §40-47-11 authorized only an appeal by an "aggrieved applicant" and the court had determined that the Residents were not aggrieved applicants. O 2016 Thomson Reuters 11 II i