City’s interpretation of own ordinance entitled to deference

by Gary Taylor

Mertz v. City of Elgin, North Dakota
(North Dakota Supreme Court, July 21, 2011)

Melvin Mertz applied for a permit to build a fence on the lot line at the edge of his residential property in Elgin, North Dakota. Elgin’s city attorney opined the fence violated city ordinances that prohibited a structure from being built within seven feet of the lot line along a side yard. Elgin’s city council denied Mertz’s application based upon the city attorney’s opinion. The district court affirmed the denial by Elgin’s city council, stating the interpretation and application of the ordinances was reasonable.  Mertz appealed.

The North Dakota Supreme Court observed that the local governing body’s decision must be affirmed unless it acted arbitrarily, capriciously, or unreasonably, or if there is not substantial evidence supporting the decision. “The interpretation of a zoning ordinance by a governmental entity is a quasi-judicial act, and a reviewing court should give deference to the judgment and interpretation of the governing body rather than substitute its judgment for that of the enacting body.” The city attorney opined the proposed fence would violate city ordinances prohibiting the building of a structure within seven feet of the lot line of a side yard. A structure is, “Something constructed or built, or a piece of work artificially built up or composed of parts joined together in some definite manner.” The city attorney opined a fence is a structure, which meant a fence must be seven feet from the lot line, and the Elgin city council agreed with the interpretation.  The Court concluded based on the definition that it was reasonable for Elgin to decide a fence is a structure and prohibited within seven feet of the side yard lot line.

Mertz argued that if a fence is a structure, the ordinances lead to an absurd result where a fence can only be built seven feet from the lot line. The Court stated that Elgin has the authority to regulate and restrict the size of yards and locations of structures, and that Mertz had not proven there is no legitimate governmental purpose or that the ordinances are arbitrary.

Mertz also argued the Elgin city council acted without making findings on evidence, and there was not substantial evidence to support or justify its decision; however, the city council minutes showed the city council relied upon the city attorney’s opinion, and that opinion was available and contained the rationale of why the proposed fence would violate the ordinances. The record shows Elgin had on file Mertz’s permit application, a drawing of Mertz’s lot with the proposed fence, a statement of the zoning and planning commission that the members of the commission had no issue with the fence based upon a visual examination, the city attorney’s letter of his opinion based upon a reading of the ordinances, and a copy of the ordinances. The record supports the city council’s decision, and we can discern the rationale for the city council’s decision.

Mertz argued other residents in Elgin had structures within seven feet of their lot lines, and the drawing included with Mertz’s permit application showed his neighbor’s garage is twelve inches from the lot line. However, there was nothing on the record indicating whether the ordinances were in effect when these structures were built. From the record, the Court could not say Mertz’s permit application was arbitrarily denied while others were not prohibited from building within seven feet of the side yard lot line.

The Supreme Court affirmed the district court order affirming the decision by the Elgin city council.

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