by Allison Arends
Rakowski v. City of Fargo
(North Dakota Supreme Court, January 26, 2010)
FM City Development owned several lots next to Rakowski’s property near North Dakota State University campus. FM intended to develop the property by constructing a three-story mixed-use building with both commercial and residential space. FM applied to the City of Fargo for a conditional use permit to allow residential use of the property, which was zoned Limited Commercial, and to reduce the required number of on-site parking spaces for the development. Rakowski (neighboring landowner) was given notice of the City Planning Commission’s public hearing, and although Rakowski did present his objections at the public hearing, he failed to file a timely appeal from the City Planning Commission when they granted the conditional use permit.
Rakowski appealed the City’s decision to the district court, specifically objecting to the reduction of the required number of on-site parking spaces. Rakowski argued that the City had improperly granted the conditional use permit because it did not comply with the City’s Land Development Code. The City’s Code sets specific standards for the number of required off-street parking spaces for commercial and residential land uses.
The Court, however, determined that although the Development Code does provide restrictions,
“It allows the City to reduce the number of required parking spaces through adoption of an Alternative Access Plan. If a parking reduction of more than 25 percent, the request must be considered by the City Planning Commission, which is authorized to issue a conditional use permit to the City commission allowing the reduction in parking. An aggrieved party may appeal the decision of the City Planning Commission to issue or deny conditional use permit to the City Commission.”
The Court also noted that, “Where a party fails to appeal an adverse decision of a zoning board in the time allowed, the decision of the board is final. A party may not collaterally attack the decision in a different proceeding.” Because Rakowski failed to file a timely appeal, the court held that the City Planning Commission’s decision to issue a conditional use permit adopting an alternate access plan was proper.