from the District Court of Williams County, Northwest
Judicial District, the Honorable Paul W. Jacobson, Judge.
S. Prout, Assistant State's Attorney, Williston, ND, for
plaintiff and appellant.
Ariston E. Johnson, Watford City, ND, for defendants and
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.
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.
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.
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 ...