ND Attorney General: Junk ordinance not “zoning” to allow for use in extraterritorial zoning area

by Gary Taylor

North Dakota Attorney General Letter Opinion 2014-L-6 (March 13, 2014)

N.D.C.C. § 40-06-01(2) provides that the governing body of a municipality has general police power jurisdiction “[i]n and over all places within one-half mile . . . of the municipal limits for the purpose of enforcing health ordinances and regulations, and police regulations and ordinances adopted to promote the peace, order, safety, and general welfare of the municipality.” A city is also authorized to apply its zoning and subdivision regulations up to four miles beyond the city limits, depending upon the population of the city.

The city of Grand Forks’ extraterritorial zoning jurisdiction extends to four miles beyond the city limits.  In 1978, the North Dakota Supreme Court determined that a city has complete zoning control in this extraterritorial zoning area; however, since state law changes in 2009, the city and the county now exercise joint jurisdiction within the two to four mile area. The city of Grand Forks and Grand Forks County have signed a zoning and subdivision agreement which provides that the “[c]ity shall be responsible for all zoning and subdivision administration, activities and regulation for areas within the 2 mile area beyond the city limits.”  Grand Forks County has argued that the city’s nuisance ordinances regulating the accumulation of junk may be treated as zoning ordinances pursuant to the city’s general authority to regulate land and thus be enforced in the city’s extraterritorial zoning area.  The North Dakota Attorney General (AG), however, disagrees.

The AG looked to the North Dakota Supreme Court case of Jamestown v. Tahran, involving ordinances of the city of Jamestown that prohibited the storage or accumulation of trash, rubbish, junk, junk automobiles, or abandoned vehicles on any private property. The court rejected the argument that the ordinance constituted a zoning ordinance, stating, “[t]he plain language of the ordinance . . . indicates it is a criminal ordinance generally applicable throughout the City . . . and not a zoning ordinance.”  Similarly, the AG considers the plain language of the city of Grand Fork’s ordinances regarding the accumulation of junk to indicate they are criminal ordinances and not zoning ordinances.

The AG also noted that because the city’s junk ordinances are not zoning ordinances, there is no limitation on the county’s ability to enforce its own junk ordinances within the extraterritorial area in question.


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