Appeal from the District Court of Williams County, Northwest Judicial District, the Honorable Paul W. Jacobson, Judge.
Lawrence E. King, Bismarck, N.D., for plaintiff and appellant.
Scott K. Porsborg (argued) and Preston J. Wise (appeared), Bismarck, N.D., for defendants and appellees.
Lisa Fair McEvers,
Daniel J. Crothers, Dale V. Sandstrom, Carol Ronning Kapsner, Gerald W.
VandeWalle, C.J. Lisa Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom, Carol
Ronning Kapsner, Gerald W. VandeWalle, C.J.
Lisa Fair McEvers, Justice.
[¶1] Black Gold OilField Services, LLC, appeals from an order vacating a temporary restraining order and denying its request to preliminarily enjoin the City of Williston and the Williston City Commission from enforcing a decision to close Black Gold's temporary workforce housing facility during the pendency of Black Gold's lawsuit against Williston and the City Commission. We treat Black Gold's appeal as a petition for the exercise of our supervisory jurisdiction. We deny the petition, concluding the district court did not abuse its discretion in denying Black Gold's request for a preliminary injunction.
[¶2] Black Gold owns the Black Gold Williston Lodge, a temporary workforce housing facility commonly known as a man camp, which has 322 rooms and 400 beds primarily for workers in the Bakken oilfield and was initially located on land outside the Williston city limits in Williams County. Black Gold has operated the Lodge since March 2011, initially operating under a temporary use permit issued by Williams County. In February 2013, Williston annexed about 4,888 acres of unincorporated land in Williams County, including the land for the Lodge. In September 2013, Williston adopted a resolution to extend permits issued by Williston County for temporary workforce housing facilities and to require those facilities, including the Lodge, to comply with Williston's zoning, building, and fire codes.
[¶3] In December 2013, Williston notified Black Gold that it must install a fire protection sprinkler system in the Lodge, and Black Gold requested an extension for up to 180 days. In January 2014, Williston extended the time for Black Gold to install a sprinkler system in the Lodge until December 31, 2014, and notified Black Gold of the extension on January 29, 2014. In June 2014, Williston again notified Black Gold the Lodge must have an operational sprinkler system in place by December 31, 2014.
[¶ 4] According to Williston Fire Chief Jason Catrambone, Black Gold contacted the Williston Fire Department in November 2014, to discuss the installation of a sprinkler system in the Lodge. On December 15, 2014, Black Gold applied for a building permit to construct water tanks for the sprinkler system, and Williston issued that permit on December 19, 2014. According to Dave Kennedy, Black Gold's Vice President of Operations, he met with Woody Ball, Williston's Chief Fire Inspector, multiple times during the course of the installation of the sprinkler system in the Lodge, including November 17, 2014, and twice between January 6, 2015, and January 13, 2015. According to Kennedy, Ball requested an update on the progress of the installation on January 6, 2015, and was advised the system would be finished on or before February 15, 2015. Ball informed Kennedy on January 8, 2015, that the agenda for a January 13, 2015 Williston City Commission meeting had not been published and that Fire Chief Catrambone was not aware if temporary workforce housing facilities were on the agenda.
[¶5] At the January 13, 2015 meeting, the City Commission considered issues about fire sprinkler systems at temporary workforce housing facilities. The minutes of that meeting state:
Tate Cymbaluk, City Commissioner presented the following:
d. Fire, Police, and Ambulance Commissioner
(1) Fire Inspections - workforce housing man camps - required sprinkler systems for Aries, Black Gold and ATCO; non-compliance of Black Gold and ATCO[.] This item is regarding the workforce housing North of town; Aries, Black Gold and Atco. When the property was annexed in February 2013, the goal was they would be allowed to operate and have 16 months to get in compliance with City Codes. Atco and Black Gold have not complied. Aries has followed through with bringing their workforce housing up to code and are in compliance. Commissioner Brostuen stated he understood the safety concerns but wondered if this is enough time to remedy the situation. Commissioner Cymbaluk stated he does not feel they should be given any more time to become compliant; they were given adequate notice to become compliant. Commissioner Piesik stated she feels two weeks is not enough time for the people living in these man camps. Commissioner Piesik also asked if there were any applicable fines put in place. Mayor Klug stated he did not think the City of Williston has fines big enough for this situation. Commissioner Cymbaluk feels this is not the commission's problem; it is the man camps as they failed to meet the rules and regulations. Discussion was had regarding giving them until March 1, 2015 to vacate the premises; to completely remove the facilities. Mayor Klug asked about an option to not allow them to do business until they have come into compliance. Commissioner Cymbaluk does not feel this is adequate. Commissioner Bekkedahl asked if staff had been out to the sites within the 16 month period to check on progress. Commissioner Cymbaluk stated they received numerous letters regarding being in compliance by the end of 2014. Donald Kress, Planning and Zoning, stated City staff was out inspecting the crew camps after the annexation; the camps were told at the time of inspection they had to be in compliance
with the sprinkler system, they received several letters stating the conditions; paying fees, being in compliance with all city ordinances and having a sprinkler system in place and operational by 12/31/2014. It was clarified that the previous fire chief spoke in person to the camps. Commissioner Bekkedahl asked if the offending parties were given notice that this item was going to be on the agenda for this commission meeting. The answer was probably not. Peter Aberle with Aries Building Systems stated his company has gone through the expense of being compliant and all of the camps should have to do the same. Terry Metsler also stated getting a second chance for these two camps should not be an option. It was stated that should an accident happen when they are out of compliance, the City may hold some of the liability. Commissioner Piesik agrees a date should be set but that the businesses that have people at the camps need time to vacate. Commissioner Piesik suggested February 15, 2015 as the vacate date. Commissioner Cymbaluk asked if a dollar amount for a fine can be set for everyday they are not out by the date set as the meeting tonight. Attorney Furuseth stated he was not sure. Mayor Klug stated a date needed to be set and then on that date the buildings need to be plaquered and that is it it is vacated.
Commissioner Cymbaluk stated if the motion passes they would take the necessary actions with the City Attorney, the PD and the Building Dept. to follow proper protocol.
AMMENDED [sic] MOTION BY CYMBALUK, SECONDED BY BROSTUEN, for ACTO and Black Gold or their subsidiaries vacate said premises with the proper reclamation no later than 2/15/2015
AYE: Brostuen, Bekkedahl, Piesik, Cymbaluk, Klug
[¶6] Black Gold requested reconsideration, and Williston stayed its decision and placed Black Gold's request on the City Commission's agenda for its February 24, 2015 meeting. According to Black Gold, its contractor completed installation of the sprinkler system for the Lodge on February 12, 2015, and the facility passed an inspection by the fire inspector on February 14, 2015. The parties agree that Black Gold appeared before the City Commission on February 24, 2015, and the Commission voted 3 to 2 not to reconsider its prior decision. Williston ultimately informed Black Gold that all the tenants would be required to vacate the facility by May 1, 2015, and that the structure would be required to be removed by September 1, 2015.
[¶7] In a complaint dated February 25, 2015, Black Gold sued Williston and the City Commission for a declaratory judgment and to prohibit enforcement of the decision. Black Gold alleged Commissioner Cymbaluk was a real estate agent and property manager in Williston and had a financial interest in closing Black Gold's housing facility. Black Gold alleged that Williston's decision violated Black Gold's state and federal constitutional rights to due process because the decision was arbitrary, capricious, and unreasonable; that Black Gold had insufficient time and opportunity to comply with fire and building codes after the annexation; that Black Gold was not provided notice and an opportunity to appear at the January 13, 2015 City Commission meeting;
and that there was no basis for the decision not to extend the special use permit after the sprinklers were installed. Black Gold also alleged the City Commission lacked jurisdiction because the Williston building officer has exclusive jurisdiction under Williston's zoning ordinances to enforce Williston's building and fire codes after appropriate notice and opportunity to correct violations. Black Gold's complaint sought declaratory and injunctive relief and a writ of prohibition to prevent Williston from implementing its decision.
[¶8] Black Gold immediately sought a temporary restraining order and a preliminary injunction to prevent Williston from closing the Lodge while the lawsuit was pending. The district court initially issued a temporary restraining order, concluding that " [b]ased on the information provided, it appears Black Gold may be entitled to the relief demanded" and that " [i]n balancing the relative interests, it is more equitable" to enter a temporary restraining order. After Williston responded, the court vacated the temporary restraining order and denied Black Gold's request to preliminarily enjoin Williston's decision while the lawsuit was pending. The court explained:
Black Gold was afforded over one year to comply with the City's requirement to install a fire sprinkler system and meet all other applicable City requirements. Black Gold failed to comply with the City's requirement to ...