City of Fargo v. Salsman

Decision Date03 February 2009
Docket NumberNo. 20080162.,20080162.
Citation760 N.W.2d 123,2009 ND 15
PartiesCITY OF FARGO, Plaintiff and Appellee v. Robert E. SALSMAN, Defendant and Appellant.
CourtNorth Dakota Supreme Court

Scott Orel Diamond, City Attorney, Fargo, N.D., for plaintiff and appellee.

Jonathan T. Garaas, Garaas Law Firm, Fargo, N.D., for defendant and appellant.

SANDSTROM, Justice.

[¶ 1] Robert E. Salsman appeals from a judgment ordering him to immediately abate a nuisance on his property by removing and disposing of "all trash, rubbish, junk and junk automobiles" and permanently enjoining him from maintaining a nuisance on the property. We conclude the district court did not err in ruling the City of Fargo had the authority to bring this action and there was a nuisance on Salsman's property, and Salsman's statutory and constitutional rights were not violated by Fargo's action. We affirm.

I

[¶ 2] Since 1976, Salsman has owned a 50-foot by 140-foot lot in Fargo. The property is zoned as a light industrial lot, and residential housing is located directly north of the property. An alley runs directly west of the property, and a sidewalk and 21st Street North run on the east side of the property. A wood slat and chain link fence with tarps surrounds the property.

[¶ 3] In August 2007, Fargo brought a nuisance abatement action in district court against Salsman, alleging he had "stored or accumulated numerous items of trash, rubbish and junk on the subject property, including, but not limited to, car parts, tires, junk, trash, lumber, boards, rotted lumber, garbage, metal scrap, tanks, poles, rods, barrels, drums, wire, scrap glass, and scrap building materials." Fargo further alleged "numerous junk, unlicensed, or inoperable motor vehicles" were parked on the property in violation of several sections of the Fargo Municipal Code. Fargo claimed it had given Salsman notice of the various ordinance violations and sufficient time to correct the problems, but Salsman had failed to do so.

[¶ 4] Following a trial, the district court ruled Salsman's property was a nuisance under city and state law. The court found Salsman's property "is not screened from ordinary public view by means of a fence, trees, shrubbery or other appropriate means," and "constitutes a health hazard, is contrary to the public peace, health, safety and general welfare of the community and annoys, injures or endangers the comfort, repose, health or safety of others within the City of Fargo." The court ordered Salsman to abate the nuisance within 60 days of its order and permanently enjoined him from maintaining a nuisance on the property. Salsman appealed.

II

[¶ 5] Salsman argues the district court had no "jurisdiction over the parties, the subject matter, or the property involved in the action" because Fargo has no authority to bring a civil action to abate a public nuisance. Salsman's argument is premised on N.D.C.C. § 42-02-01, which provides "[t]he attorney general, the state health officer, the state's attorney, or any citizen of the county where a nuisance exists or is maintained, may bring an action in the name of the state to abate and perpetually enjoin the nuisance." Because a municipality is not listed in the statute, Salsman argues Fargo had no right to initiate the action.

[¶ 6] "Words used in any statute are to be understood in their ordinary sense, unless a contrary intention plainly appears." N.D.C.C. § 1-02-02. Statutes relating to the same subject matter should be construed in harmony whenever possible. Mountrail County v. Hoffman, 2000 ND 49, ¶ 6, 607 N.W.2d 901. Applying these rules of statutory construction, we interpret N.D.C.C. § 42-02-01 not to give exclusive authority to the individuals listed to bring a nuisance abatement action, but to give only those individuals the authority to bring the action "in the name of the state." "A public nuisance may be abated by any public body or officer authorized thereto by law." N.D.C.C. § 42-01-09; see also Hoffman, at ¶ 6 (county had authority to bring public nuisance action). Fargo is a public body, and municipalities have the power to "declare what shall constitute a nuisance and to prevent, abate, and remove the same." N.D.C.C. § 40-05-01(44). We conclude Fargo had the authority to bring this nuisance abatement action. See, e.g., City of Minot v. Freelander, 368 N.W.2d 514, 515 (N.D.1985) (affirming judgment declaring a person's house a "public and private nuisance" in an action brought by municipality).

[¶ 7] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. Salsman's appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, § 6, and N.D.C.C. § 28-27-01.

III

[¶ 8] Salsman challenges the district court's findings of fact and the evidence Fargo presented in support of its action. He argues the court's findings are inadequate under N.D.R.Civ.P. 52(a), Fargo failed to produce sufficient evidence to establish a nuisance, and the court's findings to that effect are clearly erroneous.

[¶ 9] Rule 52(a), N.D.R.Civ.P., requires the district court in a bench trial to "find the facts specially and state separately its conclusions of law thereon." A lack of specificity alone does not make findings of fact clearly erroneous. State v. Bergstrom, 2006 ND 45, ¶ 15, 710 N.W.2d 407. Findings of fact are adequate under N.D.R.Civ.P. 52(a) if they provide this Court with an understanding of the district court's factual basis used in reaching its decision. Overland v. Overland, 2008 ND 6, ¶ 9, 744 N.W.2d 67. The district court's findings of fact are presumed to be correct, and the complaining party has the burden of demonstrating a finding is clearly erroneous. Curtis Constr. Co. v. American Steel Span, Inc., 2005 ND 218, ¶ 13, 707 N.W.2d 68. A finding of fact is clearly erroneous and will be overturned if it is induced by an erroneous view of the law, if no evidence exists to support the finding or if, on the entire record, this Court is left with a definite and firm conviction a mistake has been made. Red River Wings, Inc. v. Hoot, Inc., 2008 ND 117, ¶ 28, 751 N.W.2d 206. Whether a nuisance exists is a mixed question of fact and law. See Jerry Harmon Motors, Inc. v. Farmers Union Grain Terminal Ass'n, 337 N.W.2d 427, 430 (N.D.1983).

[¶ 10] A public nuisance is defined in N.D.C.C. § 42-01-06 as "one which at the same time affects an entire community or neighborhood or any considerable number of persons, although the extent of the annoyance or damage inflicted upon the individuals may be unequal." Under N.D.C.C. § 42-01-01(1), a "nuisance consists in unlawfully doing an act or omitting to perform a duty, which act or omission ... [a]nnoys, injures, or endangers the comfort, repose, health, or safety of others."

[¶ 11] Section 13-0902 of the Fargo Municipal Code provides:

It is hereby determined that the storage or accumulation of trash, rubbish, junk, junk automobiles, abandoned vehicles, building materials, and the maintenance of blighted structures upon any private property within the city of Fargo is a nuisance and tends to result in blighted and deteriorated neighborhoods, the increase in criminal activity, the spread of vermin and disease, and is contrary to the public peace, health, safety and general welfare of the community.

The terms "junk" and "junk automobiles" are defined in Fargo Municipal Code § 13-0901(1) and (2):

1. The term "junk" shall include, without limitation, trash, rubbish, parts of machinery or motor vehicles, unused furniture, stoves, refrigerators, or other appliances, remnants of wood, metal, or any other castoff material of any kind, whether or not the same could be put to any reasonable use.

2. The term "junk automobiles" shall include, without limitation, any motor vehicle which is not licensed for use upon the highways of the state of North Dakota for a period in excess of 60 days, and shall also include, whether licensed or not, any motor vehicle which is inoperative for any reason for a period in excess of 60 days; provided that there is excepted from this definition unlicensed, but operative, vehicles which are kept as the stock in trade of a regularly licensed and established new or used automobile dealer.

[¶ 12] The district court concluded Salsman's property constituted a nuisance under state law and Fargo's municipal ordinances. The court found Salsman owns the property, the property "contains trash, rubbish, junk and junk automobiles" as defined by the Fargo ordinances, and the nuisance has existed "since as early as January 2007." The court further found Salsman's property "is not screened from ordinary public view by means of a fence, trees, shrubbery or other appropriate means," and the property "constitutes a health hazard, is contrary to the public peace, health, safety and general welfare of the community and annoys, injures or endangers the comfort, repose, health or safety of others within the City of Fargo." The court's findings adequately apprise us of the factual basis for its decision.

[¶ 13] We further conclude Fargo presented sufficient evidence to establish a nuisance and the district court's findings are not clearly erroneous. Fargo presented the testimony of a city building inspector who became aware of Salsman's property "from neighborhood complaints" in 2004. He inspected the fence on the property and described it as being constructed of "used materials" and being "somewhat dilapidated." From the exterior of the property, he observed "[j]unk," "things that are thrown away," consisting of "[c]ar parts, tires, rims, a lot of rims, hubcaps, ... a transmission ..., pipe, maybe plastic containers strewn about, metal, wood." He observed building materials scattered on the property including "some window stash [sic] laying around, a door, ... a stainless steel kitchen sink, [and] a counter top." He estimated there were 80 to 100 tires, more than 100 hubcaps, and between 13 to 20...

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