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Hale v. City of Minot

Supreme Court of North Dakota

August 25, 2015

Robert Hale, d/b/a Bullwinkle Builders, Inc., Appellant
City of Minot, Appellee

Page 871

Appeal from the District Court of Ward County, North Central Judicial District, the Honorable Gary H. Lee, Judge.

Lynn M. Boughey, Bismarck, N.D., for appellant.

Kelly E. Hendershot, City Attorney, Minot, N.D., for appellee.

Carol Ronning Kapsner, Lisa Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom, Gerald W. VandeWalle, C.J. Opinion of the Court by Kapsner, Justice.


Page 872

Carol Ronning Kapsner, Justice.

[¶1] Robert Hale, doing business as Bullwinkle Builders, Inc., (" Hale" ) appeals from a district court order affirming a City of Minot Board of Appeals (" Board" ) decision affirming the denial of Hale's application for a building permit. We conclude that the Board did not act arbitrarily, capriciously, or unreasonably in affirming a City building official's decision to deny the application and that substantial evidence supports the Board's decision. We affirm.


[¶2] Hale operates a facility within the City of Minot known as Somerset Court, originally built in the late 1990s or 2000. In September 2013, Hale applied to the City for a building permit for the " construction of a 3 story addition to an existing assisted living facility--70 units" for an addition to the Somerset Court building. The permit application indicated a use group of " I-1" and a building use of " commercial/industrial." Hale asserts he filed the application with an " I-1" classification under protest so foundation and other preliminary work could begin.

[¶3] In December 2013, after a series of conversations and exchanges of information between the City's building official and Hale and his representatives, the building official denied the permit application for failure to submit certain required documentation. At issue is the building official's determination under the 2009 International Building Code (" IBC" ), as adopted by the City, that Hale's facility is an " assisted living facility" classified as Institutional Group I-1, rather than an apartment building classified as Residential Group R-2. An applicant for a Institutional Group I-1 building permit is required to submit additional documentation prepared by a registered design professional and must install more expensive wiring.

[¶4] Hale appealed the building official's denial to the Board of Appeals. After a hearing, the Board issued a written decision concluding the building official had properly classified the proposed project; properly requested drawings prepared and certified by a qualified, licensed design professional; properly requested a code study; and properly denied modifications with respect to the proposed project. The Board unanimously affirmed the building official's denial of Hale's application, and the district court affirmed the Board's decision.


[¶5] This Court's standard of review for a decision of a local governing body is limited and deferential:

When considering an appeal from the decision of a local governing body under N.D.C.C. § 28-34-01, our scope of review is the same as the district court's and is very limited. This Court's function is to independently determine the propriety of the [Board's] decision without giving special deference to the district court

Page 873

decision. The [Board's] decision must be affirmed unless the local body acted arbitrarily, capriciously, or unreasonably, or there is not substantial evidence supporting the decision. 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.

Dahm v. Stark Cty. Bd. of Cty. Comm'rs, 2013 ND 241, ¶ 8, 841 N.W.2d 416 (quoting Grand Forks Hous. Auths. v. Grand Forks Bd. of Cty. Comm'rs, 2010 ND 245, ¶ 6, 793 N.W.2d 168 (internal citations omitted)). " Such a standard of review ensures that the court does not substitute its judgment for that of the local governing body which initially made the decision." Hector v. City of Fargo, 2009 ND 14, ¶ 9, 760 N.W.2d 108. Generally, " the record is adequate to support the findings and conclusions of the city if it allows [the Court] to discern the rationale for the decision." Id. Further, while the interpretation of an ordinance presents a question of law, fully reviewable on appeal, this Court gives deference to a governing body's reasonable interpretation of its own ordinance. See Dakota Res. Council v. Stark Cty. Bd. of Cty. Comm'rs, 2012 ND 114, ¶ 16, 817 N.W.2d 373.


[¶6] Hale essentially argues that the Board acted arbitrarily, capriciously, and unreasonably in affirming the building official's classification of Hale's facility and denial of a building permit because the evidence does not support the Board's decision.

[¶7] Under City of Minot Code of Ordinances (" Minot Code" ) § § 9-1 and 9-2, the City adopted and incorporated into its ordinances the 2009 edition of the IBC with certain specified amendments. Under IBC § 104.1 (2009), the City's building official is authorized and directed to enforce and interpret the building code in compliance with the code's intent and purpose. Under IBC § 113.1, as amended by Minot Code § 9-2, an interested person adversely affected by a decision of the building official with respect to a technical issue may appeal to the Board of Appeals. The Board has " the right to affirm, reverse or modify the decision or order of the building official in question." IBC § 113.5, as amended by Minot Code § 9-2.


[¶8] Hale argues the City building official misapprehended the true intent and proper interpretation of IBC § § 308.2 and 310.2 (2009). He contends the building official and the Board misconstrued those provisions and incorrectly classified the expansion of the Somerset facility as Institutional Group I-1, instead of Residential Group R-2.

[¶9] Section 308.1, IBC (2009), provides for an " Institutional Group I" classification of buildings and structures that includes the Group I-1 designation:

Institutional Group I occupancy includes, among others, the use of a building or structure, or a portion thereof, in which people are cared for or live in a supervised environment, having physical limitations because of health or age are harbored for medical treatment or other care or treatment, or in which people are detained for penal or correctional purposes or in which the liberty of the occupants is restricted. Institutional occupancies shall be classified as Group I-1, I-2, I-3 or 1-4.

( Emphasis added.) Section 308.2, IBC (2009), provides what the " Group I-1" classification includes, stating in part:

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This occupancy shall include buildings, structures or parts thereof housing more than 16 persons, on a 24-hour basis, who because of age, mental disability or other reasons, live in a supervised residential environment that provides personal care services. The occupants are capable of responding to an emergency situation without physical ...

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