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Melvin Mertz v. City of Elgin

July 21, 2011

MELVIN MERTZ,
PLAINTIFF AND APPELLANT
v.
CITY OF ELGIN, GRANT COUNTY, NORTH DAKOTA,
DEFENDANT AND APPELLEE



Appeal from the District Court of Grant County, South Central Judicial District, the Honorable Bruce B. Haskell, Judge.

The opinion of the court was delivered by: Kapsner, Justice.

N.D. Supreme CourtMertz v. City of Elgin,

2011 ND 148 This opinion is subject to petition for rehearing. [Go to Documents]

[Download as WordPerfect]

AFFIRMED.

Opinion of the Court by Kapsner, Justice. Patrick D.

Mertz v. City of ElginNo. 20110054

[¶1] Melvin Mertz appealed the district court order affirming the decision by the City of Elgin ("Elgin") to deny his application for a permit to build a fence on the edge of his property. Mertz argued Elgin's interpretation of its ordinances was arbitrary and unreasonable. We affirm.

I

[¶2] Mertz applied for a permit to build a fence on the lot line at the edge of his residential property in Elgin, North Dakota. Elgin's city attorney opined the fence violated city ordinances that prohibited a structure from being built within seven feet of the lot line along a side yard. Elgin's city council denied Mertz's application based upon the city attorney's opinion. The district court affirmed the denial by Elgin's city council, stating the interpretation and application of the ordinances was reasonable.

II

[¶3] This Court's scope of review of the decision of a local governing body is the same as the district court's scope of review, and it is very limited. Hagerott v. Morton Cnty. Bd. of Comm'rs, 2010 ND 32, ¶ 7, 778 N.W.2d 813 (citing Gowan v. Ward Cnty. Comm'n, 2009 ND 72, ¶ 5, 764 N.W.2d 425; Tibert v. City of Minto, 2006 ND 189, ¶ 8, 720 N.W.2d 921); see also N.D.C.C. § 28-34-01. This Court does not give special deference to the district court decision, but independently reviews the propriety of the local governing body's decision. Id. (citing Gowan, at ¶ 5; Tibert, at ¶ 8). The local governing body's decision must be affirmed unless it acted arbitrarily, capriciously, or unreasonably, or if there is not substantial evidence supporting the decision. Id. (citing Gowan, at ¶ 5; Tibert, at ¶ 8). "A decision is not arbitrary, capricious, or unreasonable if the exercise of discretion is the product of a rational mental process by which the facts and the law relied upon are considered together for the purpose of achieving a reasoned and reasonable interpretation." Id. (quoting Gowan, at ¶ 5; Tibert, at ¶ 8).

[¶4] This case involves the interpretation of city ordinances. This Court "fully review[s] the interpretation of an ordinance, and a governing body's failure to correctly interpret and apply controlling law constitutes arbitrary, capricious, and unreasonable conduct." Hagerott, 2010 ND 32, ¶ 7, 778 N.W.2d 813 (quoting Gowan, 2009 ND 72, ¶ 5, 764 N.W.2d 425; City of Fargo v. Ness, 551 N.W.2d 790, 792 (N.D. 1996)). "The interpretation of a zoning ordinance is governed by the rules of statutory construction." Id. at ¶ 13 (citing Hentz v. Elma Twp. Bd. of Supervisors, 2007 ND 19, ¶ 9, 727 N.W.2d 276). The interpretation of an ordinance is a question of law subject to full review on appeal. Id. (citing Hentz, at ¶ 9). This Court determines the enacting body's intent by giving language its plain, ordinary, and commonly understood meaning, and will not disregard unambiguous language to pursue the spirit of an ordinance. Id. (citing Hentz, at ¶ 9). Ordinances are construed as a whole. Id. (citing Hentz, at ¶ 9). This Court ordinarily defers to a reasonable interpretation of an ordinance by the agency enforcing it, but an interpretation that contradicts clear, unambiguous language is not reasonable. Id. (citing Lee v. N.D. Workers Comp. Bureau, 1998 ND 218, ¶ 11, 587 N.W.2d 423). "The interpretation of a zoning ordinance by a governmental entity is a quasi-judicial act, and a reviewing court should give deference to the judgment and interpretation of the governing body rather than substitute its judgment for that of the enacting body." Id. (citing Pulkrabek v. Morton Cnty., 389 N.W.2d 609, 615 (N.D. 1986)).

[ΒΆ5] Elgin's city council denied Mertz's application based upon the city attorney's opinion. The city attorney opined the proposed fence would violate city ordinances prohibiting the building of a structure within seven feet of the lot line of a side yard. Each side yard in a residential zone in Elgin "shall be a minimum of 7 feet." A side yard is defined as, "A yard between the front and rear yard measured horizontally at right angles from the side lot line to the nearest point of a building or other structure." A yard is, "An open space on a lot which is unobstructed from the ground upward except as otherwise provided . . . ." A building and a structure are ...


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