from the District Court of Burleigh County, South Central
Judicial District, the Honorable Cynthia Feland, Judge.
Nicholas C. Grant, for appellant.
K. Porsborg (argued) and Preston J. Wise (on brief), for
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.
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
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.
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, ¶ 10, 673 N.W.2d
264. The ordinance was changed shortly after the district