Shaw v. Burleigh County
| Decision Date | 20 December 1979 |
| Docket Number | No. 9642,9642 |
| Citation | 286 N.W.2d 792 |
| Court | North Dakota Supreme Court |
| Parties | Walter A. SHAW, Plaintiff and Appellant, v. BURLEIGH COUNTY of North Dakota, a political subdivision of the State of North Dakota, Defendant and Appellee. Civ. |
Houdek & Wolberg, Bismarck, for plaintiff and appellant; argued by Duane Houdek, Bismarck.
John M. Olson, State's Atty., Bismarck, for defendant and appellee.
This is an appeal from a judgment of the District Court of Burleigh County, which upheld a decision of the Board of County Commissioners (hereinafter referred to as the Board) denying Shaw's application for an extension of a special use permit. We affirm.
In the absence of a record in the instant case, the facts as stated herein are as adduced from the briefs of the parties. Counsel for Shaw, during oral argument, stated that he agreed with the facts as set forth in the brief of counsel for the Board. While we are accepting this procedure in the instant case because of the significant questions of law involved, and shall thus proceed to consider the issues, we caution that this procedure shall not constitute a precedent for future cases.
In 1976, Walter A. Shaw made an application for a special use permit for the purpose of occupying a mobile home in a subdivision south of Bismarck, North Dakota. The area has been designated as a residential zone, an area in which mobile homes are not normally permitted.
Shaw made his request pursuant to the provisions of Article 9 of the Burleigh County Zoning Ordinances, and more specifically, Section 9 of that article which provides for the occupancy and use of individual mobile homes in agricultural or residential districts. The Board has, from time to time, granted special use permits allowing lot owners to place a mobile home on their premises prior to constructing a permanent residence. Shaw was granted a special use permit for a period of two years, with the understanding that he would construct a single family, permanent residence within that period, if able to do so.
As the expiration of his permit approached, Shaw applied for an extension to allow him to occupy the same mobile home on the property for an additional two years, believing said extension to be in accordance with Section 9(g) of Article 9 of the Burleigh County Zoning Ordinances. Although Shaw had made some improvements to the property, including the clearing of land, drilling of a well, and installation of a septic tank, he had not begun construction of a permanent residence.
A hearing was held before the Board to review Shaw's application for an extension, and the Board denied Shaw's request on March 8, 1978.
In June of 1978, however, the Board reconsidered its previous action, and set another hearing for July 6, 1978. Shaw stated in his brief to this court that the Board was informed of the following facts at that hearing:
Although there is no record of the proceedings before either the Board or the district court, counsel for both parties seem to agree that the Board was primarily concerned about Shaw's inability to assure the Board that he would construct a permanent dwelling within the two-year extension. The Board was also concerned with the placement of mobile homes located on property zoned for residential purposes, especially subdivision developments where such homes are not allowed except by special permit.
With these considerations in mind, on July 6, 1978, the Board rejected Shaw's application by a four-to-one vote of the Commissioners.
On August 3, 1978, pursuant to Sections 11-11-39 and 11-11-41, N.D.C.C., Shaw appealed to the district court from the decision of the Board denying his application for an extension of a special use permit.
In a memorandum opinion dated October 11, 1978, the district court determined that Section 11-11-43, N.D.C.C., which provides for a trial de novo on appeal from a decision of a board of county commissioners, was an unconstitutional delegation of non-judicial power to the district court to review legislative acts. The court therefore interpreted the statute to mean that its authority was limited to an examination of whether or not the statutory or county ordinances, rules, and regulations were followed, and, if there was a matter of reviewable discretion involved, whether or not that discretion had been abused.
Aside from the fact that the district court's inquiry was limited as described above, counsel for the Board stated in his brief that the court did allow the hearing to be conducted on a "de novo" basis, and evidence relevant to the issues was presented by both parties. In its memorandum opinion of March 9, 1979, the district court stated:
"However, since the court's ruling on the constitutional question might, on appeal, be interpreted to be erroneous, all evidence deemed relevant to the issues was made a part of the record."
In accordance with the memorandum opinion of March 9, 1979, the district court determined that the Board had not abused its discretion in denying Shaw's application for an extension of his special use permit, and dismissed Shaw's appeal. Judgment was entered on June 27, 1979, and Shaw appeals to this court from that judgment.
Shaw raises two issues on appeal:
(1) Whether or not Section 11-11-43, N.D.C.C., which provides that appeals from decisions of the Board of County Commissioners shall be heard "de novo", is an unconstitutional delegation of a non-judicial duty to the judiciary to review legislative acts, and
(2) Whether or not the Burleigh County Board of Commissioners abused its discretion in denying Shaw's application for an extension of a special use permit.
The constitutionality of Section 11-11-43, N.D.C.C., which provides that appeals from decisions of the Board of County Commissioners shall be heard "de novo", presents an interesting and significant dilemma. In Merchant v. Richland County Water, Etc., 270 N.W.2d 801 (N.D.1978), we were asked to determine whether or not an appeal from an administrative agency heard by the district court de novo, pursuant to Section 61-16-39, N.D.C.C., was unconstitutional because it usurped legislative authority granted to that governmental agency, and improperly delegated such authority to the judiciary. The question had been certified to this court, but we declined to answer because the question had not been passed upon and determined by the lower court, and, further, because the answer would not have been dispositive of all the issues in the case. However, this is not the situation in the instant case.
Here, the district court determined that Section 11-11-43, N.D.C.C., was an unconstitutional delegation of a non-judicial duty to the judiciary to review legislative acts, and the Board has asserted this position on appeal. Therefore, we are forced to address this important constitutional issue.
Although our State Constitution does not contain a general distributing clause providing for the division of governmental powers among the legislative, executive, and judicial branches, the creation of those branches operates as an apportionment of the different classes of power. As all branches derive their authority from the same constitution, there is an implied exclusion of each branch from the exercise of the functions of the other. City of Carrington v. Foster County, 166 N.W.2d 377 (N.D.1969).
In order that the independence of the three distinct branches of government be preserved, it is a fundamental principle that the Legislature cannot invade the province of the judiciary, nor may it impose upon the judiciary non-judicial duties. Section 94 of the North Dakota Constitution provides, in pertinent part, that "No duties shall be imposed by law upon the supreme court or any of the justices thereof, except such as are judicial, . . . ." The enactment of zoning ordinances is a legislative function and not a judicial one.
The boards of county commissioners are the legislative bodies impowered by statute to regulate and restrict, within their respective counties, the location and use of buildings and structures, and the use, condition of use, or occupancy of lands for residence, recreation, and other purposes. Section 11-33-01, N.D.C.C. The Burleigh County Board is statutorily granted the authority to enact and enforce zoning ordinances for the purpose of promoting the health, safety, peace, morals, comfort, convenience, and general welfare of the public, as well as conserving the value of property throughout the county. Section 11-33-01, N.D.C.C.; Article 1, Sections 1 and 3, Burleigh County Zoning Ordinance.
In considering the scope or nature of appellate review in a case of this type, w...
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