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Zajac v. Traill County Water Resource District

Supreme Court of North Dakota

June 30, 2016

Ray Zajac, Appellant
v.
Traill County Water Resource District, Appellee

         Appeal from the District Court of Traill County, East Central Judicial District, the Honorable Norman G. Anderson, Judge.

          Jonathan L. Green, for appellant.

          Andrew D. Cook (argued) and Sean M. Fredricks (on brief), for appellee.

          OPINION

          Lisa Fair McEvers, Justice.

         [¶ 1] Ray Zajac appeals from a judgment dismissing his appeal from a Traill County Water Resource District decision amending approval of Patricia Bertsch's application for a subsurface drain in Traill County. We affirm, concluding Zajac failed to file a timely appeal from the Resource District decision.

         I

         [¶ 2] In June 2014, the Resource District initially approved Bertsch's application to install subsurface drain tile on her land, conditioned on her obtaining flowage easements from affected landowners, including Zajac. At a regularly scheduled meeting on July 7, 2015, the Resource District amended its original approval of Bertsch's application to eliminate the requirement that she obtain an easement from Zajac. Zajac does not dispute the agenda for the Resource District's regularly scheduled July 7, 2015 meeting was filed with the Traill County Auditor before the meeting and stated the "Jon Bertsch-Zajac Easement Issue" would be addressed at 7:30. The parties do not dispute that a separate notice of hearing was not mailed to or otherwise served upon Zajac before the meeting. After amending approval of Bertsch's application, the Resource District sent Zajac a July 14, 2015 letter notifying him of the July 7, 2015 decision.

         [¶ 3] On August 10, 2015, Zajac filed a notice of appeal from the Resource District's amended decision with the district court. The district court dismissed Zajac's appeal, concluding it was not timely under N.D.C.C. § 28-34-01.

         II

         [¶ 4] Zajac argues the district court erred in deciding his appeal was not timely under N.D.C.C. § 28-34-01 and the time for appeal should have been tolled until he received notice of the decision. He also claims he did not receive sufficient notice of the July 7, 2015 meeting to satisfy due process and afford him an opportunity to be heard.

         [¶ 5] The district court dismissed Zajac's appeal under N.D.C.C. § 28-34-01, which provides, in part:

This section, to the extent that it is not inconsistent with procedural rules adopted by the North Dakota supreme court, governs any appeal provided by statute from the decision of a local governing body, except those court reviews provided under sections 2-04-11 and 40-51.2-15. For the purposes of this section, "local governing body" includes any officer, board, commission, resource or conservation district, or other political subdivision. Each appeal is governed by the following procedure:
1. The notice of appeal must be filed with the clerk of the court within thirty days after the decision of the local governing body. A copy of the notice of appeal must be served on the local governing body in the manner provided by rule 4 of the North Dakota Rules of Civil Procedure.

         [¶ 6] Statutory interpretation is a question of law, which is fully reviewable on appeal. Nelson v. Johnson, 2010 ND 23, ¶ 12, 778 N.W.2d 773. The primary purpose of statutory interpretation is to determine the intention of the legislation. In re Estate of Elken, 2007 ND 107, ¶ 7, 735 N.W.2d 842. Words in a statute are given their plain, ordinary, and commonly understood meaning, unless defined by statute or unless a contrary intention plainly appears. N.D.C.C. ยง 1-02-02. If the language of a statute is clear and unambiguous, "the letter of [the statute] is not to be disregarded under the pretext of pursuing its spirit." ...


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