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Williams County v. Don Sorenson Investments, LLC

Supreme Court of North Dakota

July 31, 2017

Williams County, North Dakota, Plaintiff and Appellant
v.
Don Sorenson Investments, LLC, Don Sorenson, and Caleb Sorenson, Defendants and Appellees

         Appeal from the District Court of Williams County, Northwest Judicial District, the Honorable Paul W. Jacobson, Judge.

          Karen S. Prout, Assistant State's Attorney, Williston, ND, for plaintiff and appellant.

          Ariston E. Johnson, Watford City, ND, for defendants and appellees.

          OPINION

          KAPSNER, JUSTICE.

         [¶ 1] Williams County appeals a district court judgment granting summary judgment in favor of Don Sorenson Investments, LLC, Don Sorenson, and Caleb Sorenson. The judgment also denied the County's cross-motion for summary judgment and dismissed the County's complaint against the Sorensons for violations of county zoning ordinances and maintenance of a public nuisance relating to the Sorensons' use of their property. We reverse and remand.

         I

         [¶ 2] Don Sorenson Investments owns residentially-zoned property in Williams County. In March 2015, Don Sorenson requested a zone change for the property from residential to commercial to "conduct small commercial business" on the property. A site inspection following Sorenson's request indicated the property was being used to store semi-trucks, gooseneck flatbed trailers, bulk fuel tanks, and shipping containers. A staff report prepared for the Williams County Board of County Commissioners stated Sorenson had been out of compliance since October 2014 for operating a trucking oilfield business on the property without the County's permission. Williams County Code Enforcement Officer Kameron Hymer stated at the hearing on Sorenson's request that the property was in violation of the ordinances because "[t]hey have moved commercial trucks in again." The Board of County Commissioners denied Sorenson's request and ordered removal of all commercial items from the property by August 1, 2015. Sorenson appealed the Board's decision, and the district court affirmed.

         [¶ 3] In October 2015, Williams County sued Don Sorenson Investments, Don Sorenson, and Caleb Sorenson for violating zoning ordinances and maintaining a public nuisance. The County alleged the Sorensons were operating a commercial business by having semi-trucks, commercial vehicles, and commercial equipment on the residentially-zoned property. The County sought an order requiring the Sorensons to cease commercial business operations and remove the semi-trucks and other commercial items from the property. The County also requested civil penalties of $1, 000.00 per day per violation from August 1, 2015, to the date the commercial business operations are ceased and the commercial items are removed from the property.

         [¶ 4] In December 2015, the County moved for a preliminary injunction, alleging the Sorensons continued to use the property for commercial purposes. The County requested that the Sorensons be required to cease commercial operations and remove all commercial items from the Sorenson property. The County requested civil penalties of $126, 000.00 for zoning ordinance violations from August 1, 2015, to December 4, 2015. At the hearing the County withdrew its request for civil penalties until later in the proceedings. The district court denied the preliminary injunction, concluding the County's request for the injunction was vague because the zoning ordinances do not define "commercial."

         [¶ 5] The Sorensons moved for summary judgment, arguing the County did not indicate which provisions of the zoning ordinances they violated and did not provide specific details regarding the commercial business alleged to have been operated on the property. The County opposed the Sorensons' motion and filed a cross-motion for summary judgment. The County argued administrative res judicata prevented the Sorensons from challenging the zoning violations on their property because the Board of County Commissioners had already determined they were in violation. The County argued that after August 1, 2015, the Sorensons continued to have numerous semi-trucks, trailers, shipping containers, and bulk fuel tanks on their property. The County also alleged the Sorensons removed two bulk fuel tanks from the property after the County requested entry on the property to inspect the fuel tanks. The County argued the Sorensons should be sanctioned for spoliation of evidence.

         [¶ 6] The district court granted the Sorensons' motion for summary judgment and denied the County's cross-motion for summary judgment. The court concluded the zoning ordinances did not define "commercial, " "commercial operation, " or "commercial item" so as to give the Sorensons proper notice of what constituted a zoning violation. The court concluded res judicata did not apply, denied the County's request for sanctions for spoliation of evidence, denied its request for civil penalties, and dismissed the County's complaint.

         II

         [¶ 7] Summary judgment is a procedural device under N.D.R.Civ.P. 56(c) for promptly resolving a controversy on the merits without a trial if there are no genuine issues of material fact or inferences to be drawn from the undisputed facts. Tarnavsky v. Rankin, 2009 ND 149, ¶ 7, 771 N.W.2d 578. The party resisting the motion must present competent admissible evidence by affidavit or by directing the court to relevant evidence in the record raising a genuine issue of material fact. Rooks v. Robb, 2015 ND 274, ¶ 10, 871 N.W.2d 468; N.D.R.Civ.P. 56(e). On appeal, the party opposing the motion will be given all favorable inferences that may be reasonably drawn from the evidence. Rooks, at ¶¶ 6, 10. Whether summary judgment was proper is a question of law reviewed de novo on the record. Id. at ¶ 6.

         III

         [¶ 8] Williams County argues the district court erred in granting the Sorensons' motion for summary judgment and denying its cross-motion for summary judgment. The County argues the district court erred in concluding administrative res judicata did not preclude the Sorensons from challenging the existence of zoning violations on their property. The County argues the earlier proceedings before ...


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