City of Minot v. Boger

20070158 City of Minot, Plaintiff and Appellee
v.
Tim Boger, Joni Boger,
Timothy John Boger, Jr.,
and Marissa Boger, Defendants and Appellants

Appeal from: District Court, Northwest Judicial District, Ward County
Judge Douglas L. Mattson
Nature of Action: Other (Civil)
Counsel:
Appellant: Bosard, McCutcheon & Rau, Ltd.
Appellee: Eaton, Ward & Associates , City Attorney
Appellant: Pro se
Term: 10/2007   Argument: 10/10/2007  10:45am
ND cite: 2008 ND 7
NW cite: 744 N.W.2d 277

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Issues: Appellant's Statement of the Issues:
1. Should an Ordinance be construed from its plain language or by whimsy and mythical standards.
2.Should the Minot Zoning Ordinance scheme be deemed invalid and void, as it was not properly promulgated.
3.Is Bogers use of the land grand-fathered and vested.
4.Did Bogers meet Minot's zoning standards to conduct a home occupation business.
5.Can the City zone for aesthetic?
6.Is the Judgement over broad and does it wrongfully prohibit an appropriate business activity.
7. Has there been a regulatory taking as the city's actions are onerous and unreasonable.
8.Are Bogers are entitled to attorney fees.

Appellee's Statement of the Issues:
1. Does the trial record support the trial court's findings that the Bogers used their residentially-zoned property for the parking - in connection with their commercial activities - of heavy equipment, machinery, and commercial vehicles and as a marshalling point for their employees?
2. Did the trial judge properly construe the City of Minot zoning ordinance as prohibiting such parking and marshalling?
3. If the City established a prima facia violation of its zoning ordinance by the Bogers, did the Bogers successfully overcome that case by proving an affirmative defense, such as estoppel, laches, "grandfather protection," or an invidiously discriminatory enforcement policy?
4. Was the injunctive relief granted by the trial court against the Bogers overly broad or oppressive, given the scope and intensity of the zoning-ordinance violation by the Bogers which the court found to exist?
5. Did the imposition of the injunctive relief against the Bogers result in a regulatory taking or inverse condemnation of the Bogers' property?

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Docket entries:
106/05/2007 NOTICE OF APPEAL: 06/04/2007
207/05/2007 ROA (6 Vols.) & Separates (Entry Nos.88, 132, 139, 160-162, 189, 190, 207-211, 213-269 & 323).
307/09/2007 APPELLANT BRIEF
407/09/2007 APPELLANT APPENDIX (2 vols)
507/10/2007 DISK - atb
608/03/2007 APPELLEE BRIEF
708/03/2007 DISK - aeb (e-mailed)
810/10/2007 APPEARANCES: Robert S. Rau; Nevin Van de Streek, City Attorney
910/10/2007 ARGUED: Rau; Van de Streek
1010/10/2007 ORAL ARGUMENT WEBCAST
1101/17/2008 DISPOSITION: AFFIRMED AND MODIFIED
1201/17/2008 UNANIMOUS OPINION: VandeWalle, Gerald W.
1301/17/2008 Costs on appeal taxed in favor of Appellee
1401/22/2008 Judgment e-mailed to Parties
1501/31/2008 Mot. Ext/Time Petition for Rehearing (sua sponte)
1601/31/2008 ACTION BY CHIEF JUSTICE (MPR). Granted: 02/14/2008
1702/04/2008 MOTION and Brief to Withdraw as Counsel of Record (Robert S. Rau)
1802/07/2008 Receipt for certified mail of Motion to Withdraw on Tim Boger
1902/13/2008 PETITION FOR REHEARING
2002/14/2008 DISK-PER
2102/21/2008 ACTION BY SUPREME COURT. Denied
2202/25/2008 ACTION BY CHIEF JUSTICE (Motion to Withdraw as Counsel). Granted
2303/05/2008 MANDATE
2403/07/2008 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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