Newman Signs, Inc. v. Hjelle

• Decision Date: 24 December 1980
• Docket Number: No. 9394-A,9394-A
• Parties: NEWMAN SIGNS, INC., a North Dakota corporation, Plaintiff and Appellant, v. Walter HJELLE, as North Dakota State Highway Commissioner, acting as and for the State of North Dakota, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 860

300 N.W.2d 860

NEWMAN SIGNS, INC., a North Dakota corporation, Plaintiff and Appellant, v. Walter HJELLE, as North Dakota State Highway Commissioner,

acting as and for the State of North Dakota,

Defendant and Appellee.

Civ. No. 9394-A.

Supreme Court of North Dakota.

Dec. 24, 1980.

Rehearing Denied Jan. 23, 1981.

Cahill, Gunhus, Grinnell, Jeffries, Klinger, Vinje & Swenson, Moorhead, Mn., for plaintiff and appellant; argued by Edmund G. Vinje, II, Moorhead, Mn.

Steven L. Latham, Sp. Asst. Atty. Gen., Bismarck, for defendant and appellee.

SAND, Justice.

This is an appeal from a summary judgment granted in favor of the North Dakota State Highway Commissioner (Commissioner), and against Newman Signs, Inc. (Newman). We affirm.

Newman initiated this action in district court seeking a writ of mandamus directing the Commissioner to issue a permit to Newman to erect advertising signs along Interstate 94 in Mapleton Township near West Fargo, North Dakota. This land is within one mile of West Fargo, and the city has the authority to extend its zoning jurisdiction to the land. ¹ Prior to April 1979 this land was zoned commercial pursuant to a Mapleton Township ordinance. On 16 Apr 1979 a West Fargo ordinance changing the zoning classification of the land from commercial to agricultural was given its first reading. On 29 April 1979 Newman applied to the Commissioner pursuant to Ch. 24-17, North Dakota Century Code, and the rules and regulations promulgated thereunder for permits to erect advertising signs on the land. On 21 May 1979 the second reading of the ordinance was given, and the ordinance was published on 30 May 1979.

The Commissioner denied Newman's application for the permits on 22 May 1979. Newman subsequently erected the signs on the land without securing the required permits. The Commissioner notified Newman that the signs were illegally erected and would have to be removed within 30 days or they would be deemed abandoned and removed by the State. Newman then commenced this action and obtained a temporary restraining order preventing the State from removing the signs while the action was pending. The Commissioner moved for a summary judgment and the motion was granted. The temporary restraining order was lifted. Newman appealed from that judgment to this Court. ²

The issues raised by Newman on this appeal may be framed into the following question: Whether or not summary judgment was appropriate in this action for a writ of mandamus.

It is well settled that summary judgment pursuant to Rule 56, North Dakota Rules of Civil Procedure, is available for a prompt and expeditious disposition of a controversy without a trial if there is no dispute as to a material fact and if there is no dispute regarding the inferences that may be drawn from the facts, or if only a question of law is involved. E. g., Zuraff v. Empire Fire and Marine Insurance Co., 252 N.W.2d 302 (N.D.1977); Farmers Elevator Co. v. David, 234 N.W.2d 26 (N.D.1975). It is equally well settled that a party moving for a summary judgment must clearly demonstrate that there is no genuine issue of material fact. E. g., Yegen v. City of Bismarck, 291 N.W.2d 422 (N.D.1980). We must also consider the relevant facts to determine if they are adequate for the issuance of a writ of mandamus.

Section 32-34-01, NDCC, deals with writs of mandamus and provides, in part, as follows:

"The writ of mandamus may be issued by the supreme and district courts to any inferior tribunal, corporation, board, or person to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station ...."

The applicant for a writ of mandamus must show the existence of a legal right to the performance of the particular act sought to be compelled by the writ. City of Fargo v. Cass County, 286 N.W.2d 494 (N.D.1979). The applicant must also establish that there is not a plain, speedy and adequate remedy in the ordinary course of law. Section 32-04-02, NDCC; City of Fargo v. Cass County, supra.

A writ of mandamus does not apply to compel acts which are discretionary. City of Fargo v. Cass County, supra.

A writ of mandamus is not available when there is an appeal available from an adverse decision of an administrative agency. See, Leonard v. Medlang, 264 N.W.2d 481 (N.D.1978).

Newman contends that the issuance of permits for advertising signs by the Commissioner is a mandatory, ministerial act prescribed by the rules and regulations promulgated by the North Dakota Highway Corridor Board (Board) pursuant to § 24 -17-09, NDCC. ³ In support of this contention Newman points to § 36-02-01-04, North Dakota Administrative Code, which provides in part that "the permit license shall be supplied by the Highway Commissioner in conformance with directions adopted by the Highway Corridor Board."

It is undisputed that at the time Newman applied for the permits, the City of West Fargo was in the process of rezoning the property from commercial to agricultural. We realize a period of time is involved in the enactment and implementation of a zoning change, and during the interim period applications for permits may be submitted. However, the mere application does not always require the issuance of a permit particularly when a zoning change is in progress. Cf., Williams v. Griffin, 91 Nev. 743, 542 P.2d 732 (1975) (building permits); see generally 50 A.L.R.3d 596, 620. In this instance we believe it was proper for the Commissioner to hold in abeyance the issuance of a permit to Newman because of the pending change. In fact, the Commissioner, by not issuing the permits, may have saved the State from additional liability and expenses for the later removal of compensable signs. See, § 24-17-05, NDCC.

Additionally, we believe that Newman took the law in its own hands by erecting the signs after the permits were declined and the zoning change was completed and accepted the consequences for its actions.

Newman also contends that because § 24-17-15, NDCC, provides for appeals from adverse decisions by the Board and not by the Commissioner, there are no provisions for an appeal from a denial of a permit by the Commissioner. Therefore, Newman contends that a writ of mandamus must be issued because there is no plain, speedy, and adequate remedy available.

The Board is not necessarily subject to the provisions of the Administrative Agencies Practice Act, Ch. 28-32, NDCC, relating to procedures for promulgating their internal rules or regulations. Newman Signs, Inc. v. Hjelle, 268 N.W.2d 741 (N.D.1978). However, appeals from adverse decisions by the Board are governed by some provisions of Ch. 28-32, NDCC, because § 24-17-15, NDCC, provides as follows:

"Any person, or persons, jointly and severally, aggrieved by a decision of the board under this chapter, may appeal therefrom to the district court and to the supreme court in accordance with sections 28-32-15 through 28-32-21, provided, however, that no other sections in chapter 28-32 shall be applicable to any proceedings of the board."

Section 24-17-06, NDCC, provides for the creation of the Board to perform the functions of Ch. 24-17, NDCC. Section 24-17-09(1), NDCC, allows the Board to establish suitable regulations to carry out the purposes of Ch. 24-17. Pursuant to this section, the Board has promulgated rules and regulations found in Title 36 of the North Dakota Administrative Code. Section 36-01-01-01(3) of the North Dakota Administrative Code sets out the functions of the Board and provides in part that the "Board has the authority to ... provide for the permits authorizing the erection of outdoor...