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Dakota Outdoor Advertising, LLC v. City of Bismarck

Supreme Court of North Dakota

November 9, 2016

Dakota Outdoor Advertising, LLC, Appellant
v.
City of Bismarck, Board of Commissioners, Appellee

         Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Cynthia Feland, Judge.

         AFFIRMED.

          Nicholas C. Grant, for appellant.

          Scott K. Porsborg (argued) and Preston J. Wise (on brief), for appellee.

          OPINION

          KAPSNER, JUSTICE.

         [¶ 1] Dakota Outdoor Advertising, LLC ("Dakota") appeals from the district court's order affirming the Bismarck Board of Commissioner's ("Board") decision affirming the Bismarck Planning and Zoning Commission's ("Commission") denial of an application for a special use permit. We affirm.

         I

         [¶ 2] Dakota entered into a lease with Boutrous Group, the owner of real property in Bismarck near the intersection of East Capitol Avenue and State Street. Dakota intended to erect a digital billboard on the property. Because the sign would be digital and located less than 300 feet from a residential property, City of Bismarck's Code of Ordinances required Dakota to obtain a special use permit before it could erect the sign.

         [¶ 3] Dakota and Boutrous Group applied for a special use permit to the Commission. On December 10, 2014, members of Dakota met with city staff and presented studies regarding whether digital billboards create an unreasonable risk of driver distraction. At a December 17, 2014 meeting, Commission staff indicated they still had safety concerns about Dakota's proposed billboard. The Commission held a public hearing on the special use permit on January 28, 2015. Members of Dakota testified at length about the studies they had presented to the Commission staff. Commission members asked Dakota various questions, and a police officer testified about accidents at the intersection near the proposed billboard site. The Commission denied the application for a special use permit by a vote of eight to one.

         [¶ 4] Dakota and Boutrous Group appealed the Commission's denial of the special use permit to the Board. The Board held a hearing on March 24, 2015. At the hearing, a city planner informed the Board of the situation and explained the requirements of the zoning ordinance. All parties were given the opportunity to present evidence at the hearing. The Board made written findings and affirmed the decision of the Commission on March 30, 2015.

         [¶ 5] Dakota appealed the Board's and the Commission's decisions to the district court. The court ordered the appeal of Boutrous Group dismissed without prejudice after the parties stipulated to the dismissal. Dakota and the Board presented briefs and a record, and the district court affirmed the decision of the Board and entered judgment on February 22, 2016.

         [¶ 6] City of Bismarck ordinances regulating placement of digital billboards were changed since the district court entered judgment in this case. Section 14-03-08(3)(b)(2)(j), City of Bismarck, N.D., Code of Ordinances, governs siting of digital billboards and no longer includes a provision for obtaining a special use permit for a digital billboard at a distance of less than 300 feet from a residential area. The current provisions governing siting of digital billboards would no longer permit Dakota to obtain a special use permit for the proposed site.

         II

         [¶ 7] The Board argues this appeal is moot because City of Bismarck Ordinances no longer permit special use permits for digital billboards at a distance of less than 300 feet from a residential area. "Before reaching the merits of an appeal, we consider the threshold issue of mootness." Fercho v. Remmick, 2003 ND 85, ¶ 7, 662 N.W.2d 259. "This Court does not render advisory opinions, and will dismiss appeals if the issue becomes moot." Interest of W.O., 2004 ND 8, ΒΆ 10, 673 N.W.2d 264. The ordinance was changed shortly after the district court ...


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