Cameron Arnegard and Mary Susan Arnegard, Plaintiffs, Appellants, and Cross-Appellees
Arnegard Township, Defendant, Appellee, and Cross-Appellant
from the District Court of McKenzie County, Northwest
Judicial District, the Honorable Daniel S. El-Dweek, Judge.
M. Six (argued) and Garth H. Sjue (on brief), Williston, ND,
for plaintiffs, appellants, and cross-appellees.
K. Porsborg (argued) and Austin T. Lafferty (appeared),
Bismarck, ND, for defendant, appellee, and cross-appellant.
1] Cameron and Mary Susan Arnegard appeal from a judgment
relating to a conditional use permit (CUP) obtained from
Arnegard Township in McKenzie County. The Arnegards argue the
district court erred in granting the Township's motion in
limine to exclude a buy-sell agreement; denying their motion
to amend their complaint on a due process claim; granting
summary judgment dismissing their breach of contract, actual
fraud and equitable estoppel claims; dismissing their
negligence and deceit claims by directed verdict; and
determining no party prevailed in the action. The Arnegards
also argue the district court abused its discretion by
denying their motion to amend their complaint at trial. The
Township cross-appeals, arguing the district court erred in
granting judgment as a matter of law in favor of the
Arnegards' due process claim. We affirm the judgment in
part, reverse the judgment in part and remand.
2] On January 5, 2012 the Township established zoning
ordinances, including a provision for conditional use
permits. The ordinances limited conditional uses in
agricultural-zoned property: one non-farm dwelling per forty
acres; schools; oil, gas, mineral, and gravel exploration and
production; water well drilling, animal feeding operations;
radio and television towers; utilities; parks; animal
hospitals; fire stations; grain cleaning plants; and
stockyards. The ordinances prohibited any conditional use not
specifically listed. The Township clerk filed copies of the
zoning ordinances with the State and the County Auditor.
3] On March 20, 2012 the Township amended the zoning
ordinances, allowing applications for conditional use permits
to build temporary workforce housing ("man camps")
in agricultural-zoned areas:
"The Planning and Zoning Commission shall establish
standards for Temporary Workforce Housing and may make
additional requirements above and beyond those standards when
conditional use permits are issued.
"Conditional use permits for Temporary Workforce Housing
are valid for one year, and may be renewed at discretion of
the Planning and Zoning Commission.
"Conditional use permit fee for Temporary Workforce
Housing shall be $2000 per year, and said fee may be revised
at any time without notice."
Township published notice in advance of the March meeting via
the McKenzie County Farmer newspaper and by postings at
Arnegard City Hall and City of Arnegard's post office.
The text of the March amendment was not published, but the
Township clerk retained copies. The January ordinances,
without the March amendments, were posted to the McKenzie
County website. The Township's zoning commission adopted
extensive development standards pursuant to the March
amendments. The development standards were not directly
amended into the zoning ordinances and did not mention the
one-year automatic expiration of a CUP.
4] The Arnegards own property within the agricultural zone of
the Township. Following negotiations with Morgan Chase
Management, the Arnegards applied for and received a CUP to
construct man camps on their property. The CUP itself did not
mention a one-year expiration date. The Arnegards received a
copy of the zoning commission's development standards,
but claim they did not know about the March amendments. The
Township Clerk filed the January ordinances and the March
amendments with the State and the County Auditor. No one else
requested or received copies of the ordinances or amendments.
5] Throughout 2013 the Township addressed the Arnegards'
property at four meetings but did not notify them about the
CUP's automatic expiration. In May 2013 the Township
transferred its zoning authority to McKenzie County by a
joint powers agreement. In July 2013 the Arnegards'
development partner changed from Morgan Chase to Laramie
Dawson. The Arnegards' CUP expired by process of law in
September 2013, although the Township voted not to renew the
CUP in November 2013. In December 2013 the Township clerk
notified the Arnegards of the expiration. The Arnegards
served a complaint and demand for jury trial on the Township
in March 2014 and filed with the district court on January
12, 2016. The district court ordered a multi-day jury trial
to start September 20, 2016.
6] The Township moved for summary judgment in March 2016,
arguing the district court lacked jurisdiction to hear the
case because the Arnegards failed to file an administrative
appeal under N.D.C.C. § 28-34-01 and the Township was
immune under N.D.C.C. § 32-12.1-03. The Arnegards
responded, asserting the Township deprived them of due
process by not providing notice of the amendments as required
under N.D.C.C. § 58-03-10 for township bylaws. In June
2016 the district court denied the Township's motion,
finding genuine issues of material fact precluded summary
7] At a pretrial conference on September 20, 2016, before
empaneling the jury, the district court dismissed the
Arnegards' breach of contract, actual fraud, and
equitable estoppel claims for lack of authority showing a CUP
could be a contract. The Township moved for a directed
verdict on the remaining deceit, negligence, and due process
violation claims after the Arnegards presented their case.
The district court granted a directed verdict in favor of the
Township on the deceit claim for lack of evidence and on the
negligence claim for lack of causation. The Arnegards moved
to amend their complaint to include a claim for due process
violations under 42 U.S.C. § 1983. The district court
denied their motion to amend. The district court granted a
directed verdict in favor of the Arnegards for the due
process violation under the North Dakota Const., art. 1,
§ 12, citing Carey v. Piphus, 435 U.S. 247, 266
(1978). Having dispensed with the Arnegards' claims, the
district court did not submit any issues to the jury.
8] The district court awarded the Arnegards damages of $1.00.
After post-trial briefing, the district court ruled no party
prevailed in the action for awarding costs under N.D.C.C.
§ 28-26-06 because "both parties prevailed in some
way, and therefore there is [sic] no prevailing
parties." Judgment was entered on April 25, 2017.
9] The Arnegards appeal from the judgment. The Township
10] The Arnegards' claims ultimately arise from the
validity and application of the Township's zoning
regulations. We must first determine whether the Township
validly enacted the zoning regulations and amendments in
January and March 2012. Second, we must interpret the
ordinance to determine whether the Township granted a valid
CUP and whether the CUP expired as a function of law after
11] Our standard of review for statutory interpretation is
"Statutory interpretation is a question of law, which is
fully reviewable on appeal. The primary purpose of statutory
interpretation is to determine the intention of the
legislation. 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. § 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
Zajac v. Traill Cty. Water Res. Dist., 2016 ND 134,
¶ 6, 881 N.W.2d 666 (citations omitted).
12] Section 58-03-13, N.D.C.C., governs whether the Township
validly enacted zoning regulations:
"The board or boards of township supervisors may
establish, and from time to time change, the boundaries of
township zoning districts and establish, amend, supplement,
and enforce regulations and restrictions in the districts.
No regulation, restriction, or boundaries become
effective until after a public hearing at which parties in
interest and citizens have an opportunity to be heard.
At least fifteen days' notice of the time and place of
the hearing must be published in the official newspaper of
the county and also in the official newspaper of the
municipality in relation to which the zoning action is taken,
if in the municipality an official newspaper other than the
official newspaper of the county is published. The
description of any land within any zoning district
established by a zoning commission together with any
regulations and restrictions established must be filed with
the governing bodies of the township and municipalities
concerned, and if amendments are made to the boundaries of
the zoning district or the regulations or restrictions, the
amendments must be filed in the same
manner."(Emphasis added.) The notice and filing
requirements of § 58-03-13 are mandatory, and failure to
follow the procedures by a township renders a purported
zoning ordinance void. Homer Twp. v. Zimney, 490
N.W.2d 256, 259 (N.D. 1992).
13] Here, the Township followed statutory procedure by
publishing notices for both the January regulations and the
March 2012 amendments in the official County newspaper, the
McKenzie County Farmer. The Township also posted notices for
both matters in Arnegard City Hall and the City of
Arnegard's post office. The Township held public hearings
for both matters, and the parties do not dispute that
citizens of the Township were afforded the opportunity to be
heard. The Township Clerk retained copies of the January
regulations and March amendments, and filed copies of the
January regulations with the State and the County Auditor.
Section 58-03-13, N.D.C.C., requires a public hearing, notice
of the hearing published at least fifteen days prior, and
filing zoning ordinances and any subsequent amendments with
the governing bodies of the township and municipality
concerned. The Township fulfilled these requirements and
validly enacted both the January zoning ordinances and March
14] Ordinances are interpreted and reviewed in the same
manner as statutes.
"We interpret ordinances as we would any statute. GO
Committee v. City of Minot, 2005 ND 136, ¶ 9, 701
N.W.2d 865 (citations omitted). Ordinance interpretation,
like statutory interpretation, is a question of law subject
to full review upon appeal. Id. (citation
omitted).... 'We construe statutes as a whole ...