Dakota Outdoor Advertising, Inc. v. City of Bismarck
2016 ND 210
N.D.2016Background
- Dakota Outdoor Advertising leased property in Bismarck to erect a digital billboard located less than 300 feet from a residential zoning district, which triggered a special use permit requirement under the City ordinance in effect at the time.
- Dakota submitted studies addressing driver distraction and applied to the Planning and Zoning Commission for a special use permit; the Commission received testimony (including police testimony and an NDDOT crash report) and denied the permit 8–1.
- Dakota appealed to the Bismarck Board of Commissioners; after a hearing the Board affirmed the Commission’s denial and issued written findings.
- Dakota appealed to the district court, which affirmed the Board; ordinances were amended after the district court’s judgment removing the special-use exception, but the City did not make the amendment retroactive.
- The Supreme Court reviewed whether the appeal was moot due to the ordinance change and whether the Board’s denial was arbitrary, capricious, or unreasonable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness/retroactivity of ordinance change | Dakota: case not moot; original ordinance applied to its pending application | City: new ordinance bars special-use reduction, so appeal is moot and current law should control | Court: not moot — new ordinance not expressly retroactive, so prior ordinance governs Dakota’s application |
| Standard of review for special-use denial | Dakota: Board ignored/failed to credit studies and decision was unreasonable | City: Board acted within discretion based on public-safety evidence | Court: review is limited; Board’s decision affirmed because it was not arbitrary, capricious, or unreasonable |
| Burden of proof on special-use permit | Dakota: implicitly argued its evidence satisfied requirements | City: applicant bears burden to prove compliance | Court: applicant bears the burden; Board reasonably found Dakota’s studies inconclusive |
| Reliance on safety evidence (weight of evidence) | Dakota: studies showed digital billboards do not unreasonably distract drivers | City: NDDOT crash data and police testimony supported denial | Court: Board permissibly gave greater weight to crash data and concluded permit would adversely affect public safety |
Key Cases Cited
- Leonard v. Medlang, 264 N.W.2d 481 (N.D. 1978) (equitable relief awarded based on circumstances at time of award)
- Shaw v. Burleigh County, 286 N.W.2d 792 (N.D. 1979) (granting or denying a special use permit is a legislative function subject to limited appellate review)
- Cosmopolitan Nat’l Bank v. Zoning Bd. of Appeals, 380 N.E.2d 940 (Ill. App. Ct. 1978) (applicant for special use permit bears burden to prove proposed use meets ordinance standards)
- Delta Biological Res., Inc. v. Bd. of Zoning Appeals, 467 N.W.2d 164 (Wis. Ct. App. 1991) (applicant must prove that proposed land use accords with zoning plan)