Agenda - Planning Commission - 02/02/2017

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Zoning Bulletin January 10, 2017 I Volume 11 I Issue 1 not adversely affect the health and safety of the public and the workers and residents in the area —was in dispute. Dakota argued that the stud- ies it presented to both the Commission and the Board supported a grant of the special use permit, and that "no evidence was presented which supported a denial." On the other hand, the Board had found that a high incidence of accidents occurred on the street running next to Dakota's proposed billboard site. In fact, the North Dakota Department of Transportation reported that the subject incident was the seventh most dangerous in the State of North Dakota and the second most dangerous in the City. The Board had determined that those findings supported a conclusion that the granting of a special use permit to Dakota for the proposed billboard would "adversely affect the health, safety and welfare of [the City's] citizens." Responding to Dakota's appeal, the Board also argued that Dakota's legal action was now moot because the City Ordinances had changed since the district court entered judgment in the case. The new ordi- nances no longer include a provision for obtaining a special use permit for a digital billboard at a distance of less than 300 feet from a residen- tial area. Rather, under the new zoning regulations, Dakota would no longer be permitted to obtain a special use permit for the proposed site. DECISION: Judgment of district court affirmed. The Supreme Court of North Dakota first determined that Dakota's action appealing the denial of its special use permit for its proposed billboard was not moot. The court explained that it would not legislate retroactivity into the City Ordinances. The City Ordinances stated that no part of the code was retroactive "unless it is expressly declared to be so." The court noted that the new statute governing placement of billboards was not "expressly declared to be" retroactive. Accordingly, the regulations on billboards did not apply retroactively to Dakota's ap- plication for the special use permit for its proposed billboard, and thus, Dakota's appeal of the special use permit denial was not moot. The court also concluded that the Board's denial of Dakota's ap- plication for a special use permit to erect its proposed digital billboard within 300 feet from a residential area was not arbitrary, capricious, or unreasonable. The court explained that the Board was "under no obliga- tion to accept the studies presented by Dakota." Rather, Dakota carried the burden of proving to the Commission that its special use complied with the requirements specified in the City Ordinances, said the court. The court found that the Board had found the studies submitted by Dakota were "at best, inconclusive" and failed to address the "cumula- tive effect of driving distractions." The Board had given more weight to the other reports that indicated the dangerousness of the nearby traf- fic intersection. Dakota was now arguing that the studies it had submit- ted were stronger and should have been weighed more heavily. © 2017 Thomson Reuters 7